Pritam Singh vs Mohinder Singh Saini

Harmohinder Kaur Sandhu, J.

The present petition under Section 482 of the Code of Criminal Procedure has been filed by Pritam Singh petitioner, for quashing the order dated 13.2.191 of Additional Chief Judicial Magistrate, Ambala (Annexure P.1) and order dated 18.7.1991 of Sessions Judge, Ambala (Annexure P2) and further issuing direction to the Trial Court to entertain the complaint filed by the petitioner against the respondents and summon them accordingly.

The facts giving rise to this petition are that Pritam Singh petitioner had four brothers and two sisters and son of his sister Bhag Kaur respondent No. 2 was married to Mohinder Singh respondent No.1. In order to grab the residential portion of the house of the petitioner respondent No. 1 instituted civil and criminal proceedings against the petitioner and other members of his family. On 29.2.1988, respondent No.1 lodged FIR No. 54 at Police Station Sadar, Ambala against the petitioner his son Karamjit Singh and his brother Ram Chander for offences under Sections 363/452/506 read with Section 34 Indian Penal Code. While the petitioner and his son were in police custody in connection with that case, respondent No.1 went to the house of the petitioner alongwith his wife Bhag Kaur and other respondents. They demolished a 20 years old wall of the house and when wife of the petitioner Smt. Sardi objected she was abused and was given beating. Occurence was witnessed by Balak Ram, Telu Ram and Ram Singh Lambardar. The petitioner filed a complaint regarding this incident on 7.4.1988 for the trial of the respondents for offences under Sections 427, 447, 380, 506/504, 120B and 149 IPC.

After examining the petitioner and his two witnesses Balak Ram and Telu Ram who were present in the court the Additional Chief Judicial Magistrate, directed an investigation to be made by a Public Officer for the purposes of deciding whether or not there is sufficient ground for proceeding. Station House Officer Police Station Sadar, Ambala inspected the spot, inquired into the matter and then submitted his report (Annexure P 7) contending that the complaint was instituted only to harass the respondents and all the allegations made in the complaint were incorrect and false. The learned Additional Chief Judicial Magistrate erased the evidence and the report and after hearing the counsel for the petitioner, dismissed the complaint vide order Annexure P.1. A revision petition was filed against this order dated 13.2.1991 which was also dismissed as per order Annexure P. 1.

I have heard Shri Rakesh Sharma, the learned counsel for the petitioner and Gulab Singh respondent.

The learned counsel of the petitioner contended that after preliminary evidence was recorded by the Trial Magistrate, the Police Officer should not have been directed to investigate the case and make a report. The trial Court had two options i.e., either to proceed in the case or to obtain a report in the matter and once the Trial Court had taken congnizance of the case an recorded preliminary evidence it was not legal to take reference to the Public Officer to obtain a report purporting to be under Section 292 of the Code of Criminal Procedure. In support of his contention he has placed reliance on the case of Puran Singh v. Bachan Singh and others, 1978 CLR (Punjab and Haryana) 4. In my view this authority is not applicable to the facts of the present case because in this authority the Trial Court recorded the statement of the complainant and then decided to hold an enquiry into the case by adjourning the case for preliminary evidence to a later date. In the case in hand, statement of the petitioner was recorded on 22.7.1983 (Annexure P.3) and on the same day statement of Balak Ram and Telu Ram witness (Annexure P.4 and Annexure P.5) respectively were recorded and then the matter was referred to the police officer for investigation. Under Section 202 of the Code of Criminal Procedure, no direction for investigation can be made, where the complaint has not been made by court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. The direction was therefore, given rightly and the report Annexure P 7 could be taken into consideration for deciding the question whether there was sufficient ground for proceeding against the respondents.

The next point urged by the counsel for the petitioner was that before an order for summoning the accused was made, Mohinder Singh one of the accused appeared in court and submitted his contention which was not proper. I find that this contention of the learned counsel is without any substance. It is true that an accused person does not come into picture at all till process is issued but this does not mean that he even cannot appear in court when an enquiry is being held. He can remain present in court either in person or through his agent with a view to be informed of what is going on. Mohinder Singh was not given any opportunity to put questions to the witnesses examined by the petitioner nor he was allowed to lead any evidence. Impugned orders were passed on the basis of the evidence recorded under Section 200 of the Code of Criminal Procedure and the police report. The orders are quite legal and valid and there being no infirmity in the same, the petition is dismissed.