Gurbachan Singh and another vs Dr. Didar Singh

D.S. Lanba, J.—This order will dispose of two Criminal Miscellaneous Petitions Nos. 1359-M and 1360-M of 1976 filed by Gurbachan Singh, Ex-Executive Officer, Kartar Singh President, and Om Parkash, Secretary, of the Municipal Committee, Maur Mandi, District Bhatinda, against Dr. Didar Singh of Maur Kalan, District Bhatinda Both these petitions have been filed u/s 482, Criminal Procedure Code, 1973, for quashing the proceedings before the Judicial Magistrate 1st Class, Bhatinda, in two separate complaints.

The complaint out of which Criminal Miscellaneous Petition No. 1359 M of 1976 has arisen was filed by Dr. Didar Singh Respondent against the three Petitioners u/s 447, read with Section 34, Indian Penal Code, in which the learned Judicial Magistrate after perusing the evidence led and hearing the counsel for the complainant,

passed an order, dated 11th January, 1974, summoning the Petitioners through bailable warrants in the amount of Rs. 2000/-. In the second complaint, out of which Criminal Miscellaneous Petition No. 1360-M of 1976 has arisen, which was filed by Dr. Didar Singh Respondent against the three Petitioners under Sections 4?0 and 447, read with Section 34, Indian Penal Code, the same Judicial Magistrate by his order, dated 6th December, 1973, had summoned the Petitioners through bailable warrants in the sum of Rs. 2000/- with one surety in the like amount for 20th December, 1973.

In both the petitions the prayer made was for quashing proceedings before the learned Judicial Magistrate and when the same came up before me on 18th March, 1976. I issued notice to the Respondent for today, and meanwhile ordered stay of proceedings, pending before the learned Judicial Magistrate.

The Learned Counsel for the Respondent at the out set stated at the bar that in the first complaint three witnesses have been examined by the learned Judicial Magistrate and the stage of framing the charge has reached. Similarly, in the second complaint, seven witnesses on behalf of the complainant have been examined by the learned Judicial Magistrate and that case has also reached the stage of framing of the charge. It has also been stated at the bar by the Learned Counsel for the Respondent that both the impuged orders were agitated by the Petitioners before the learned Judicial Magistrate by submitting applications, seeking protection u/s 197, Criminal Procedure Code, 1973. on the ground that the action taken by them was under the statutory provisions of the Punjab Municipal Act and that they were not removable from service save by or with the sanction of the State Government, and on their failure to get any relief from the Court of Judicial Magistrate, the Petitioners Sled a revision petition in the Court of the Sessions Judge, Bhatinda, and the same was also dismiss d. Ultimately the Petitioner filed a petition in this Court under Article 227 of the Constitution praying that the orders of the Judicial Magistrate and the Sessions Judge be quashed on the ground that the sanction of the State Government was necessary to prosecute them. The said petition was also dismissed by Gurnam Singh, J., on 14th January, 1976, in limine.

The principal attack of the Learned Counsel for the Petitioners against the maintainabilty of the two complaints before the learned Judicial Magistrate was that the orders summoning the Petitioners in both the complaints were not speaking ones that the learned Magistrate neither referred to nor discussed the statements made on oath by the complainant and his witnesses before me, and further that the learned Magistrate did not apply bis judicial mind to the material on record before forming his opinion that there were sufficient grounds for proceeding against the Petitioners. The Learned Counsel, therefore, contended that both the impugned orders were illegal and liable to be quashed.

The Learned Counsel for the Respondent, however, submitted that both the petitions seeking to quash the proceedings before the learned trial Magistrate have been filed after great delay and after both the complaints had reached the stage of framing of the charges. It has further been argued by him that in the two complaints the orders for summoning the Petitioners were passed on 6th December, 1973 and 11th January, 1974 when the CPC of 1898 was in force and, therefore, the said orders could be challenged only by filing revisions u/s 435 read with Section 439 of that Code. Moreover, when the Petitioners bad challenged the orders of the trial Magistrate summoning them and were seeking protection under the provisions of Section 197, Criminal Procedure Code, 1973, they could also challenge the impugned orders on the ground that the same were illegal and not not speaking ones and also on the ground that the learned Magistrate had failed to apply his judicial mind to the material on which he formed his opinion that were sufficient grounds for proceeding against the Petitioners. These two grounds were available to the Petitioners right from the time when the orders summoning them were passed by the learned Judicial Magistrate. The Learned Counsel, therefore, contends that when the Petitioners chose to select only one remedy and in which they ultimately failed, they cannot at this belated stage be permitted to attack the impugned orders, particularly when the complaints have already reached the stage of framing of the charges.

The Learned Counsel for the the Respondent further contended that so far as the two impugned orders in the same are in the nature of interlocutory orders, and under Sub-section (2) of Section 397, Criminal Procedure Code, 1 73, it is provided that the powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding Further under Sub-section (3) of Section 397, it is provided that if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. In this background he made it a point that proceeding in both the complaints cannot be quashed with the aid or Section 482, Criminal Procedure Code, 1973 and in support of his contention he invited my attention to case reported as Sant Lal v. Kishan Lal1, wherein it has been observed that an order u/s 204 of the Code of Criminal Procedure must be held to be an interlocutory and a revision petition against such an order is clearly barred by Sub-section (2) of Section 397 of the new Code. It was further observed that this bar cannot be circumvented by having recourse to the provisions of Section 482 of the New Code of Criminal Procedure. 1973, as it is now well settled that Section 482 does not apply to cases which are covered by the specific provsion of the New Code. I am, in respectful agreement with the aforesaid observations in Sant Lal''s case (supra).

In the light of the above, I am of the opinion that the present petitions for quashing the impugned proceedings must fail. Moreover, there is no abuse of the process of the Court as alleged in this case. Consequently, I dismiss both the petitions. The stay is vacated.