Mukhtiar Singh vs Surjit Kaur

K.K. Srivastava, J.

Heard Mr. Kuldip Sanwal, learned counsel for the petitioners and Mr. T.P.S. Mann, learned counsel representing the respondent.

Mr. Kuldip Sanwal at the very outset confined this petition to the legality of the impugned order of summoning passed by JMIC, Fazilka, District Ferozepur. Copy of the order has been placed on record as Annexure P2 dated 17.9.1997. The main contention of learned counsel for the petitioners is that the impugned order of summoning is not in accordance with law as laid down by the Hon''ble Supreme Court in the judgment in case of M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997(4) RCR (Criminal) 761. Elaborating his arguments he has referred to the impugned order and particularly para 3 thereof which reads as under :

"I have heard learned counsel for the complainant and have gone through the record of the file. After going through the record of the entire case I am of the considered opinion that there are sufficient grounds to proceed against the accused persons. Prima facie case punishable under Section 302 IPC read with Section 34 IPC has been made out and, therefore, the accused persons are ordered to be summoned for the aforesaid offences for 27.1.1998."

Mr. T.P.S. Mann, learned counsel for the respondent while supporting the impugned order of summoning contended that as a matter of fact the learned Magistrate has referred to the facts involved in the case and has also indicated the evidence which was led by the complainant in the preliminary evidence at the presummoning stage by making reference to para 2 of the impugned order which may also be reproduced for the sake of appreciation and it reads as under :

"In her preliminary evidence of the complainant Surjit Singh has got examined herself as PW1 and has reiterated her allegation as made in the complaint. The corroboration to her testimony was lent by PW2 Jaswant Singh, PW3 Joginder Singh and PW 5 Hira Singh. PW4 Dr. Devinder Kumar has also examined by the complainant, who was medical officer in civil hospital who conducted post mortem examination of Karnail Singh on 27.1.1995 at about 9.30 a.m. and who had found the following injuries on the dead body of Karnail Singh :

Lacerated wound 5.0 cm x 2.5 cm on the left eye brow clotted blood was present. On disection of the wound underlying bone was fractured.

Abrasion 5.0 cm x 4.0 cm on the front and right side of the forehead 2.5 cm above the right eye brow.

Abrasion 15 cm x 1.4 cm on the left shoulder extending on the upper part of the chest and upper outer part of the chest and upper part of the leftarm.

Abrasion 2.5 cm x 2.5 cm on the back of right wrist joint.

Abrasion 5 cm x 2.5 cm on the back of right hand at metacarpo phalyngeal joints.

Abrasion 7 cm x 5 cm on the front of left knee.

Abrasion 1.5 cm x 2.0 cm on the front of the left foot, 2.5 cm above the base of third toe.

Abrasion 1.5 cm x 1.0 cm on the front of right big toe at intertarsal joints.

Abrasion 2.5 cm x 2.0 cm on the front of right foot 2 cm approximal to the base of right big toe.

Abrasion 2.5 cm x 2.0 cm on the front of left knee."

Mr. Kuldip Sanwal contended that as a matter of fact initially this case was shown as a case of an accident regarding which reference has been made in the impugned order of summoning at internal page 3 where the learned Magistrate has made the following reference :

"It is further alleged that on the basis of thumb impression of Joginder Singh, accused Mukhtiar Singh in connivance with police had hushed up the matter showing the death of Karnail Singh in an accident. That Hira Singh son of Makhan Singh resident of Ghanga was going back to his village on a tractor and who had seen Mukhtiar Singh and Karnail Singh while coming back on the scooter. That the complainant had submitted application to the higher officials but police did not take any action against the accused persons."

He has further contended that the star witness whose evidence could show that it was a case of murder and not a case of accident was one Jagtar Singh who was incidentally given up by the complainant in the preliminary evidence. Controverting this argument Mr. Mann referred to the statements of Hira Singh, PW5 and Jaswant Singh PW2 demonstrating that they have stated about the evidence of last seen of the deceased with the accused petitioners as also the evidence of motive for the commission of murder. He has pointed out that as a matter of fact PW3, Joginder Singh has stated that it was not a case of accident. Be that as it may, a perusal of the reference of the evidence in para 2 of the summoning order will go to show that learned Magistrate did not address himself to the evidence of these witnesses inasmuch as he did not refer to the statements made by these witnesses to arrive at a prima facie decision about the commission of the offence for which he resultantly, ordered for the summoning of the petitioner as an accused. The relevant decision in para 3 of the impugned order falls very much short of the requirement in law for the Magistrate to feel prima facie satisfied that the accused sought to be summoned had prima facie committed the offences for which they were to be summoned. The impugned order, thus, falls short of the required legal standard which has been held in the case of M/s Pepsi Foods Ltd. (supra) where dealing with this matter the Hon''ble Apex Court has held as under :

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence in prima facie committed by all or any of the accused."

In view of the foregoing discussion, I am of the considered view that the impugned order cannot be upheld as being in accordance with law. The petition is accordingly allowed to the extent that the impugned order of summoning, copy Annexures P2 dated 17.9.1997 is set aside and the case be sent back to the learned JMIC to proceed to pass order afresh in accordance with law keeping in view the law laid down by the Hon''ble Apex Court in the case of M/s Pepsi Foods Ltd. (supra). Respondent No. 2 is directed to appear before the Court of JMIC on 15.7.1998 called earlier.

Dasti on payment.