Dilbagh Singh Sandhu vs Ashwani Kumar

K.K. Srivastava, J.

Heard learned counsel for the petitioner and the learned counsel for the respondent.

By means of this petition filed under Section 482 Cr.P.C. the petitioner seeks the quashing of criminal complaint (Annexure P5), summoning order (Annexure P6) and the entire proceedings initiated thereunder. Apart from these orders, quashing of order dated 4.12.1993 passed by the Judicial Magistrate, Amritsar issuing nonbailable warrants has also been prayed for. The brief facts leading to the filing of this petition may be noticed. Respondent Ashwani Kumar is a classIV employee working in the office of Soil Conservation Officer. The petitioner is posted as Assistant Soil Conservation Officer and is Incharge and Head of the Office of the Controlling Authority of the respondent. The respondent filed the criminal compliant annexure P5 against the petitioner in the Court of the Duty Magistrate, Amritsar under Sections 342/323/504/506 IPC, Police Station, Islamabad in the Sections Division of Amritsar. The criminal compliant alleged, interalia that the respondentcomplainant was asked to clean some plants at the house of the daughter of the petitioneraccused and while performing that work he cut some plants wrongly and thereby incurring wrath of the petitioneraccused who abused him and beat him with a stick. The other employees, namely, Niraj Kumar, Satnam Singh and Beldev Singh, who were working with the respondent complainant came to his rescue. It was also alleged that the respondent complainant was illegally detained by being locked in one of the rooms in the house of the daughter of the petitioneraccused. Thereafter, on the arrival of the daughter and with the help of the said employees he was taken out of the room but the accused threatened the respondentcomplainant with dire consequences by taking the help of his known persons who were terrorists. Witness Niraj Kumar took the respondentcomplainant to Guru Teg Bahadur Hospital, Amritsar where he was medically examined on the same day at 3.00 P.M. The respondentcomplainant made his grievance before the higher authorities. The complaint was eventually filed on 2.9.1992.

The Judicial Magistrate Ist Class, Amritsar after hearing the complainant and perusing the evidence led by the complainant as a preliminary evidence which comprised of his own statement and the statement of Niraj Kumar PW2 and a copy of the medical certificate marked ''A'' found a prima facie case against the petitioneraccused to be summoned as an accused to face the trial for the offence, referred to above. Accordingly, the summoning order was passed on 24.5.1993. The petitioneraccused applied for his personal exemption in the Court of the Judicial Magistrate Ist Class, Amritsar which was declined by order dated 4.12.1993, a copy of which has been placed on record as annexure P7.

Learned counsel for the petitioner submitted that the respondent had developed the habit of coming late in the office and leaving office early. As a result of the indiscipline and insubordination on the part of the respondent, he was pulled up by the petitioner quite often. The respondent has been described as a mischievous person and accused of creating indiscipline in the Office of the petitioner. The respondent in order to harass and embarrass the petitioner has filed the criminal complaint on false and frivolous allegations. A complaint filed by the respondent to the higher authorities i.e. Chief Soil Conservation Officer, copy annexure P1, was entertained and the Chief Soil Conservation Officer demanded an explanation of the petitioner who submitted his explanation, a copy of which is placed on record as annexure P2. Another complaint was filed by the respondent against the petitioner through his mother Smt. Kamo Rani before the District Removal of Grievances Officer who asked the petitioner to appear before him and a copy of the letter issued by the Block Soil Conservation Officer is placed on record as annexure P3. The impugned criminal complaint is sought to be quashed on the grounds, interalia, that the continuance of the proceedings in the Court of the Judicial Magistrate Ist Class is nothing but an abuse of process of Court. The sole aim of the respondent in filing the criminal complaint is to embrrass his superior Officer i.e. the petitioner. The respondent had a grudge towards the petitioner as the latter used to pull up the former for his lapses and indiscipline and insubordination. The criminal complaint has been described as vindicative, vexatious, oppressive and has been made for ulterior motives. It has also been mentioned that if there had been any truth in the allegations made by the respondent, then the matter ought to have been reported to the police immediately after the respondent got himself medically examined. The medical examination was got done without even informing the police. The injuries noted in the medical certificate are selfinflicted and not inflicted by the petitioner. Regarding the impugned order of summoning it has been alleged that the order has been passed by the learned Magistrate without applying his judicial mind and had he done so, he would have at once come to know that the complaint was false, frivolous and vexatious. The impugned order dated 4.12.1993 has been challenged on the ground that the application for personal exemption of the petitioner was rejected for no valid reasons. The learned Magistrate could not straightaway issue nonbailable warrants against the petitioner without coming to a tentative finding that the petitioner had deliberately or intentionally avoided to appear in his Court on the date fixed.

Lastly, it was mentioned that it is settled law that the complaintant has to examine his entire evidence before the Court issue process against the accused persons and in the instant case only one witness out of the three named in the complaint was examined and thus no process could be issued. In nutshell, the contention of the petitioner is that the impugned complaint is nothing but based on false, frivolous and vexatious allegations with a view to take revenge against him with no genuine intention for the redressal of his grievances and that the impugned summoning order has been passed mechanically without application of the judicial mind and the application for personal exemption was also dismissed for no valid reasons.

Notice of motion was issued to the respondent. The respondent put in appearance through counsel, filed his reply wherein allegations made in the petition were denied. It was mentioned that it is for the first time that an employee has gathered grudge to highlight the atrocities committed by the delinquent official.

The law regarding the quashing of the F.I.R./criminal complaint and challan is now well settled. The Hon''ble Supreme Court has held in the case of State of Tamil Naidu v. Thirukkural Perumal, 1995(2) Recent Criminal Reports 124 : 1995 Supreme Court Cases (Cri) 387 that the High Court is not justified in evaluating the genuineness and reliability of allegations made in the F.I.R. or complaint on the basis of evidence collected during the investigation or some other material.

In the case of State of U.P. v. O.P. Sharma, J.T. 1996(2) S.C. 488 the apex Court held after referring to its earlier decisions that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C. or under Articles 226 and 227 of the Constitution as the case may be, and allow the law to take its own course. In the case of State of Bihar v. Rajendra Agrawalla, 1996(1) Recent Criminal Reports 530 : Criminal Appeal No. 66 of 1996 decided by the apex Court on January 18, 1996, which was referred to in the judgment of State of U.P. v. O.P. Sharma (supra), the apex Court held :

"It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At the stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out."

In view of the law as settled by the apex Court, this Court will be reluctant to examine the genuineness or otherwise of the allegations made in the criminal complaint/F.I.R. If the allegations made in the complaint/F.I.R. make out the commission of an offence prima facie, this Court will be loath to interfere at the threshold to scuttle the prosecution by exercising the powers under Section 482 Cr.P.C. That being so, this Court will not examine the allegations made in the criminal complaint with the help of the material placed on record and evaluate the genuineness or otherwise of the allegations made in the criminal complaint. This Court will refrain at this stage from saying as to whether the allegations made in the criminal complaint are genuine or not. The matter is to be left for the trial Court to decide at the trial of the case according to law. I do not, thus, find any valid and legal justification for exercising the powers under Section 482 Cr.P.C. to quash the criminal complaint, annexure P5.

So far as the order of summoning (Annexure P6) is concerned, it will appear that the learned Judicial Magistrate considered in detail the material produced before him by the complainant and after referring to the material placed before him he passed the impugned order of summoning. It is a well discussed and reasoned order. It cannot be said that this order has been passed mechanically and without application of judicial mind. Consequently, no interference is needed in the well reasoned order passed by the Judicial Magistrate Ist Class on 24.5.1993 for summoning the petitioner as accused.

Now coming to the order dated 4.12.1993, a copy of which has been placed on record as annexure P7, it appears that an application was moved on behalf of the accused for seeking exemption for appearance. The application was supported by a medical certificate. The learned Judicial Magistrate refused to rely on the medical certificate on the ground that no apparent disease had been mentioned, and ordered for summoning the Doctor. At the same time, the bail bond and surety bond were cancelled and forfeited to the State and non bailable warrants were issued. In case the learned Magistrate thought that there was no good ground to allow the application for exemption, he should have issued a notice to the accused to appear before him and the law did not oblige him to issue nonbailable warrants at that very moment. No such opportunity appears to have been afforded to the petitioneraccused. Consequently, the impugned order annexure P7 in so far as it relates to the issuance of nonbailable warrants to the petitioner is concerned is liable to be quashed. The learned Judicial Magistrate shall, if application for personal exemption is moved on behalf of the petitioner with valid grounds, consider the same and grant the personal exemption subject to his appearance before him on such dates as the Magistrate may deem necessary. Resultantly, the petition is allowed to the extent that impugned order annexure P7 is quashed in so far as it relates to the issuance of nonbailable warrants for the petitioner. In other respect, the petition is dismissed.