Joginder Kumar vs Vijay Kumar and anr.

A.P. Chowdhri, J.

The revision is directed against order dated 29101987 of Judicial Magistrate Ist Class, Gurdaspur dismissing the petitioners complaint under Sections 323, 504 and 506, Indian Penal Code against the respondents.

According to the petitioner (complainant) the accused persons are running a shop near petitioner''s shop at Gurdaspur. They have business jealousy with the petitioner. On 110.1985, the petitioner had gone to Kalanaur in order to see a relative. At 6.OO PM, he was waiting at the Bus Adda at Kalanaur in order to get conveyance for Gurdaspur. The two accused came there and Ashok Kumar accused gave kick blows on his abdomen while Vijay Kumar accused caught hold of him by his hands. Both the accused gave him a beating. Ashok Kumar accused also gave a blow with his iron Karra on the right side of the nose. The accused also threatened the complainant of dire consequences. The complainant was rescued by Mohinder Pal, Sat Pal and Romesh Lal who were present there. The complainant went to Police Station and was advised to first get himself medically examined. He went to the hospital at Kalanaur. The doctor declined to examine him. The aforesaid witnesses brought him to Civil Hospital, Gurdaspur where he was medically examined. He reported the matter to the police but no action was taken and consequently, he filed the said complaint on 2921987.

After recording preliminary evidence, the Magistrate summoned the accused and recorded the statement of the complainant and Romesh Lal, one of the eyewitnesses. Thereafter, the complainant was directed to obtain dasti summonses to serve the remaining witnesses. On two occasions such an order was passed. The complainant could not, however, obtain the dasti summonses and serve the witnesses. The evidence was, therefore, closed by order dated 26101987 and by the impugned order the complaint was dismissed.

A perusal of the impugned order shows that besides complainant Joginder Kumar PW1, the prosecution story was supported by an eyewitness Romesh Lal. The learned Magistrate disbelieved their evidence mainly on the ground that the parties belonged to Gurdaspur and it was not credible that the occurrence took place at Kalanaur. The court also found some discrepancies between the statements of the two witnesses. Another ground which seems to have prevailed with the learned Magistrate is that there was no medical corroboration as the doctor was not yet examined, This brings in the question of dasti summonses and the failure of the complainant to serve his remaining witnesses.

Unfortunately the assistance of the learned counsel for both the sides is not available. Efforts were made to call the counsel but they have failed to turn up. The case was specially got noted from the counsel for both the parties and yet they have not attended. I have, therefore, gone through the records myself and am disposing of the matter on merits. As laid down in R. S. Naik v. A.R. Antulay, AIR 1986 SC 2045, the expression, "no case against the accused has been made out which, if not rebuted, would warrant his conviction occurring in Section 245 of the Code of Criminal Procedure only implies a prima facie case. What is a prima facie case is fairly well settled and it varies from case to case. In the facts of the present case the complainant supported the version put forward by him in the complaint and it was very substantially corroborated by Romesh Lal PW2. It could not, therefore, be said that there was no prima facie case made out for framing a charge. Moreover, closing of evidence of the complainant on his failure to obtain dasti summonses could not be justified by law. There is no provision for directing the complainant to obtain dasti summonses. In fact, the complainant had already deposited expenses for the doctor who examined him. Undue anxiety to get rid of old cases is not to he appreciated because it often results in failure of justice. Thus, viewed, there was clearly a prima facie case for framing of charge for at least the offence under section 323, Indian Penal Code. For these reasons. the revision petition is allowed. JUDGMENT dated 2910.1987 of Judicial Magistrate Ist Class, Gurdaspur is hereby set aside. The complaint shall be restored to the original number by the Court and after hearing the counsel for the parties the Magistrate shall proceed further according to law. He shall summon the parties for the date to be fixed for the purpose.