Gurdev Singh Petitioner vs Surinder Singh and Others

Naresh Kumar Sanghi, J.—Challenge in this petition filed u/s 482, Cr.P.C by one of the accused is to the complaint No. 55 dated 14.06.2008 (Annexure P-6); summoning order dated 2402.2011 (Annexure P-9) passed by learned Additional Chief Judicial Magistrate, Patiala, and to the order dated 06.07.2010 (Annexure P-8) passed by learned Additional Sessions Judge, Patiala, whereby the criminal revision was accepted and the matter was remitted to the learned summoning Court to hold further inquiry in the complaint. Brief facts of the case are that respondents-complainants filed criminal complaint against the petitioner and one Suresh Kumar Patwari for their prosecution for the offences punishable under Sections 420, 467, 468, 471, 120B, IPC. After the preliminary evidence was led by the complainants, the arguments were heard and the learned Additional Chief Judicial Magistrate, Patiala, dismissed the complaint vide his order dated 19.01.2009. The said order was challenged by way of Criminal Revision No. 3 dated 10.02.2009 before the learned Additional Sessions Judge, Patiala. The said court vide its order dated 06.07.2010 (Annexure P-8), set aside the order dated 19.01.2009 passed by learned Additional Chief Judicial Magistrate, Patiala and directed the learned Magistrate to hold further inquiry in the complaint filed by the complainant.

In compliance of the order dated 06.07.2010, passed by learned Additional Sessions Judge, Patiala, the matter was re-appraised by learned Additional Chief Judicial Magistrate, Patiala. The preliminary evidence led in the shape of CW-1 and CW-2 was also perused. The documents, Annexures P-1 to P-5, were also considered and, thereafter, finding a prima facie case against the petitioner and his co-accused, Suresh Kumar, they were ordered to be summoned for the offences punishable under Sections 420, 467, 468, 471, 120B, IPC vide order dated 24.02.2011.

Petitioner Gurdev Singh by way of this petition filed u/s 482, Cr.P.C. has prayed for quashing of the complaint; the order dated 06.07.2010 passed by learned Additional Sessions Judge, Patiala, and the order dated 24.02.2011 passed by learned Additional Chief Judicial Magistrate, Patiala, primarily on the following two grounds:

(i)that after the matter was remitted to learned Additional Chief Judicial Magistrate, Patiala, to hold further inquiry and then to pass the order, in that eventuality it was incumbent for the learned Magistrate to have recorded fresh evidence and collected more material before passing the impugned summoning order dated 24.02.2011; and

(ii) on facts no case is made out for summoning the petitioner for the offence for which, he has been summoned.

I have heard learned counsel for the parties and with their assistance meticulously examined the material available on record.

So far as the first submission with regard to holding of further inquiry is concerned, suffice it to mention here that on direction of this court, the petitioner has placed on record the copies of all the zimni orders passed by learned Additional Chief Judicial Magistrate, Patiala. Perusal of the same reveals that after remand, the file was taken up on 20.07.2010 and, thereafter on 27.09.2010 and the following ad-interim orders were passed:

Present:-Complainant with counsel.

File received along with order dated 6.7.2010 passed by Ld. Additional Sessions Judge, Patiala, whereby the order of my Ld. Predecessor dismissing the complaint has been reversed. This court has been directed to hold further inquiry in the complaint. The complaint be restored to its original number and as per directions the complainant is directed to bring entire preliminary evidence on 27.9.2010. Dasti summons be issued, if required.

Sd/-Rajiv Kalra,ACJM/20.7.2010

Present:-Complainant with counsel.

Complainant closed his preliminary evidence Now to come up on 21.10.2010 for arguments. SD/ ACJM/27.9.2010"

After going through the above said two zimni orders, it is very much clear that fresh preliminary evidence was led by the complainants and the learned Additional Chief Judicial Magistrate, Patiala, had not passed the impugned summoning order on the basis of the material which was already on record.

Even otherwise, the Hon''ble Supreme Court in Subrata Das Vs. State of Jharkhand and another, 2011(1) R.C.R.(Criminal) 549 held as under:-

The matter as noticed by us earlier had been remanded back to the Chief Judicial Magistrate to hold a further enquiry. That direction did not necessarily oblige the Magistrate to record any further evidence in the case. The nature of the inquiry was in the discretion of the Magistrate which may or may not have included recording of further evidence on behalf of the complainant. The Magistrate could without recording any further evidence in the matter reappraise the averments made in the complaint and the matter already on record to determine whether a prima facie case was made out against the accused persons. In as much as the Magistrate in the instant case summoned the witnesses and examined them afresh, he may have gone beyond what was legally necessary to do but that is no reason to hold that the recording of evidence by the Magistrate as a part of the further enquiry directed by the High Court would vitiate the proceedings before him or the conclusion drawn on the basis of any such enquiry. So long as the Magistrate was satisfied that a prima facie case had been made out, he was competent to issue summons to the accused. All told, the alleged error sought to be pointed out by the appellant is not of a kind that would persuade us to interfere with the proceedings at this stage.

In the result, this appeal fails and is hereby dismissed.

In view of the above, there is no force in the first submission of the learned counsel for the petitioner.

So far as the other argument of the learned counsel for the petitioner is concerned, it is suffice to say that perusal of the complaint, preliminary evidence led in the shape of C-1 and C-2 as well as the documents Annexures P-1 to P-5 would prima facie disclose the commission of offences punishable under Sections 420, 467, 468, 471, 120B, IPC. The question that the wrong entry in the revenue record was malafide or bonafide is an issue to be determined by the learned Judicial Magistrate during the course of trial. In view of the above, finding no merit in the petition, the same is hereby dismissed.