Joga Singh, Lt.Col.(Retd.) vs Union Territory, Chandigarh

Dr. Sarojnei Saksena, J.

The petitioners are seeking quashment of complaint (Annexure P9) lodged by respondent No. 2 against the petitioners under sections 452/506 IPC and the summoning order passed by the Magistrate dated April 6, 1996 (Annexure P11).

Brief facts of the case are that petitioner No. 2 is the owner of SCO No. 175, Sector 37C, Chandigarh. Petitioner No. 1 is his father. A portion of the first floor was demised to respondent No. 2 and Shri B.P. Chauhan on 3.12.1988 under a contract of lease. The petitioners have filed ejectment petition against respondent No. 2 before the Rent Controller. They have also filed another rent petition against respondent No. 2 claiming eviction on the ground of nonpayment of rental arrears. Both the petitions are pending in the Court of the Rent Controller.

The petitioners'' contention is that during the pendency of their first rent petition, wherein they have pleaded that respondent No. 2 has made certain construction by demolishing wall etc. without the consent of the landlord, on their request Shri Parveen Kataria, Advocate, was appointed Local Commissioner to inspect the demised premises in the presence of the parties and to submit the report. The Local Commissioner visited the premises on March 7, 1995, as he wanted to serve notice of his visit of inspection on the tenant. Thereafter on March 10, 1995, the Local Commissioner visited the demised premises at 11 A.M. in the presence of the petitioners. Respondent No. 2 declined to receive notice for her appearance on March 10, 1995, at the time of inspection and she remained absent also at that time.

The petitioners have also averred that on March 8, 1995, an FIR was registered at the instance of Smt. Manjit Kaur respondent No. 3, an employee of respondent No. 2, wherein certain allegations were made with regard to an alleged incident which occurred on March 7, 1995, at 12 noon. In this statement Manjit Kaur has levelled allegations against the petitioners that they came along with four/five persons, asked her to sign some papers, but as respondent No. 2 was not present, she declined to sign any paper. Thereupon all those persons went away. After some time the petitioners forcibly entered the demised premises, wherein respondent No. 2 is running her Beauty Parlour, abused Manjit Kaur, and Miss Meenu Mishra, who was also present there. They manhandled them, threw articles here and there, pushed Manjit Kaur and threatened and abused them. On that basis an FIR was registered. In pursuance of that report, the petitioners were summoned by the police. They filed a petition under section 438 Cr.P.C., which was allowed and they were enlarged on anticipatory bail. The CIA staff conducted investigation. After holding investigation CIA came to the conclusion that no offence is made out. They submitted report Annexure P10 for cancellation of the said report, but no order has been passed with regard to that report, though that report was submitted in June 1995.

On July 1, 1995, respondent No. 2 filed complaint Annexure P9 before the lower Court. After examining her witnesses, the learned Magistrate has passed the impugned order Annexure P11 and has summoned the petitioners for offences under Sections 452/506/34 IPC.

On these facts, the petitioners'' learned counsel submitted that lodging of the complaint Annexure P9 and the summoning order Annexure P11 amount to abuse the process of the Court. On the one hand, respondent No. 2 being a tenant, has caused damage to the demised property owned by the petitioners. They were forced to file a petition under section 13 of the East Punjab Urban Rent Restriction Act, 1949, against respondent No. 2. During the pendency of that petition, when Local Commissioner was appointed and he visited the premises along with the petitioners, respondent No. 2 absented herself, declined to receive the notice issued by the Local Commissioner and falsely got a report lodged by her employee Smt. Manjit Kaur respondent No. 3. After holding investigation into that FIR, the CIA staff submitted report Annexure 10 wherein it is observed that the allegations levelled in the FIR could not be proved. The cancellation report was sent to the I.G. Chandigarh on June 18, 1995, but till today no order is passed on this cancellation report. The counsel submits that before cancelling this FIR respondent No. 3 is required to be noticed by the Magistrate. He is regularly summoning Manjit Kaur, but she is not appearing before the Magistrate. Therefore, that cancellation report is pending for disposal since June 1995. In the meantime in July 1995 respondent No. 2 has filed a fresh complaint, making the same allegations, which were incorporated in the said FIR lodged by respondent No. 3. She had added certain new facts. This fact was brought to the notice of the learned Magistrate. He summoned the cancellation report, copy of which was produced before him. Despite knowing that fact, he has proceeded with the complaint and has passed the summoning order Annexure P11.

The petitioners'' learned counsel also pointed out that even in this petition notice could not be served on respondent No. 3 as her whereabouts are not known, though she was examined by the learned Magistrate in this complaint case on March 16, 1996. On these facts, petitioners'' learned counsel assiduously argued that respondent No. 2 is harassing the petitioners. On the one hand, she is neither paying the rent nor vacating the demised premises, and on the other hand, she is prosecuting them by filing this false complaint against them, though the earlier FIR lodged by her employeerespondent No. 3 is found false by the CIA staff.

The respondents'' learned counsel supported the impugned order and submitted that the learned Magistrate has rightly relied on Jaipal Singh v. State of Haryana, 1990 C.L.R. 34, though, according to him, the facts of that case are slightly distinguishable. In that case the FIR was cancelled by the Magistrate himself and thereafter on the same allegations when the complaint was lodged by the complainant, he proceeded with the complaint and after recording preliminary evidence summoned the accused persons. According to the respondents'' learned counsel, the cancellation report is not yet accepted by any authority. Therefore, the Magistrate had jurisdiction to enquire into the allegations made in the complaint and being satisfied that a prima facie case is made out against the petitioner, he has rightly summoned them for the said offences.

No doubt, the petitioners'' learned counsel has made a scathing criticism of the conduct of respondents 2 and 3 as well as of the impugned order, but the sophistry on his argument is obvious from this fact alone that as per Annexure P10 the cancellation report was sent to the InspectorGeneral of Police, Chandigarh, on June 18, 1995, which has not yet been approved by the Court. There is no mention in the petition whether this cancellation report was submitted before any court and its order is awaited. The respondent No. 2 has levelled certain allegations against the I.G.P. on the ground that he is trying to favour the petitioners. The Court cannot blink at the alleged unlawful act of the petitioners. It is trite that enmity is a double edged weapon. If the petitioners have an axe to grind against respondent No. 2, respondent No. 2 can also defend herself and can level allegations against the petitioners and can prosecute them. The controversies raised in the rent petition as well as in the complaint are yet to be decided by the competent Courts.

The respondents'' learned counsel have also argued that it is police game play to favour the petitioners. Therefore, during the investigation of the said FIR, the CIA staff has arrived at the conclusion that the allegations are not proved. It is rightly argued that the investigating agency is not the final authority to decide whether the allegations are true/proved or not. It is for the Court to adjudicate upon it and to give a finding thereon.

By now it is settled law that if an FIR/complaint is lodged, the Magistrate before whom it is pending is competent to decide it. During investigation or during the initial stage of the trial of a complaint case, the High Court should not embark upon the task of evaluating the evidence and quashing the said FIR/complaint. The complaint is at the initial stage. The High Court will be slow to scuttle it at its inception.

The only point for consideration is whether prima facie offence is made out against the petitioners from the complaint lodged by respondent No. 2. Whether the report lodged by respondent No. 3 was false, whether during the investigation of that FIR witnesses were examined, whether the witnesses in their statements have not supported the allegations made in the FIR and whether on the same facts the complainant has lodged this complaint are questions of fact and evidence, which are required to be weighed and evaluated by the trial Magistrate. This Court cannot quash the complaint (Annexure P9) simply on the ground that when CIA staff conducted investigation into the FIR lodged by respondent No. 3 dated March 7, 1995, they found that the allegations could not be proved or that the FIR is false. This complaint lodged by respondent No. 2 could be quashed on the ground that it amounts to abuse of the process of the Court. If the cancellation report is submitted before the I.G. of Police, Chandigarh, in June 1995 and no order is yet passed on that report, complainantrespondent No. 2 cannot be deprived of her right to seek redressal of her complaint in the criminal court.

No document is filed by the petitioners to show that such cancellation report is submitted before a criminal Court for acceptance. So far as the presence of respondent No. 3 is concerned, even in the petition the petitioners have admitted that Manjit Kaur respondent No. 3 was examined as OW3 in the complaint case before the lower Court on March 16, 1996. If Manjit Kaur could not be served in these quashment proceedings, that will not mean that respondent No. 3 is evading service or she is kept back at the instance of respondent No. 2.

From a plaint perusal of the petition, it is obvious that the petitioners are trying to project that as the Local Commissioner appointed by the Rent Controller visited the demised shop on March 7, 1995, and tried to serve notice on respondent No. 2, therefore, respondents 2 and 3 knew it very well that the petitioners came along with this Local Commissioner appointed by the Rent Controller. Despite knowing this fact, in the FIR lodged by Manjit Kaur on March 8, 1995, as well as in the complaint by respondent No. 2, they are deliberately hiding this fact and trying to show that the petitioners visited the demised shop along with 2/3 persons whom they did not know. This is a selfserving statement made by the petitioners in the petition. This fact is yet to be decided on the basis of evidence that respondent No. 2 knew that on March 7, 1995, when the Local Commissioner went to the demised shop along with the petitioners, then this incident happened. Even if that argument is taken for granted, from the FIR reproduced at internal page 7 of the petition, it is apparent that Manjit Kaur has stated therein that when those persons forced her to sign certain papers and she declined, the petitioners as well as their companions went back, but after some time these petitioners came back and then the incident of manhandling, abusing, threatening and throwing away their articles took place. Petitioners'' learned counsel admitted during arguments that on March 7, 1995, the Local Commissioner visited the demised shop at about 10 A.M. or 11 A.M. but as per this FIR this incident took place at about 12 noon. Therefore, the above argument is devoid any force that these respondents are deliberately not admitting that at the time of alleged incident, the Local Commissioner visited the demised premises.

Even this argument is farflung that if such complaints are allowed to be investigated and tried in a criminal Courts, no advocate/respected person would agree to act as Local Commissioner under the orders of Rent Controller/any Court. From the allegations made in the FIR as well as in the complaint, it is evident that no such allegation is made against the Local Commissioner. I am constrained to reject the prayer fervently advanced by Mr. I.K. Mehta for the quashment of the said complaint/summoning order, as under the aforesaid facts and circumstances of the case can it be suggested with any modicum of reasonableness that the filing of the complaint or the summoning order amounts to abuse the process of the Court.

Resultantly, the petition filed under section 482 Cr.P.C., having no substance, is hereby dismissed.