Sibu vs Mohinder Singh

Nirmal Singh, J.—The respondent filed a complaint u/s 3(v), V, Section 10 of the SC/ST (Prevention of Atrocities) Act, 1989 read with

Section 148/149 IPC against the petitioners. After perusing the statements and other material placed on record, the Special Judge, Hosiharpur

vide order dated 5.7.1997 summoned Kewal Singh and others but petitioners were not summoned. The operative part vide which the petitioners

were not summoned reads as under :-

After scrutinizing the aforesaid evidence, I am of the considered opinion that the statement of complainant Mohinder Pal P W-3 finds the requisite

corroboration from the sworn testimony of PW-1 Gurmel Singh and PW-2 Sant Singh. They both stated that Kewal Singh Sarpanch accused

No.2 gave filthy abuses to the complainant and further uttered that he alongwith others would kill the Chamars after the destructions of their houses

and they should also fit their ladies and would remove their clothes in the presence of chamars. Their statements are uniform and consistent on all

the material posts.

The names of accused Nos.3 to 34 have neither been mentioned in the body of the complaint nor by the above mentioned witnesses in their sworn

testimony. As such there are grounds to move against accused No.2 namely Kewal Singh Sarpanch son of Dhannu resident of village and Post

Chak Hazipur, Tehsil Garshankar Distt. Hoshiarpur, u/s 3(V), V, Section 10 of SC/ST (Prevention of Atrocities Act, 1989) of filing of process

fee, copy of complaint and list of witnesses for 8.9.1997.

The respondent challenged the order in Criminal Misc. No.25206-M of 1997. this Court vide order dated 5.8.1998 allowed the petition and

remanded the case back to the trial Court for re-appraisal of the evidence. On remand, the learned Special Judge summoned the petitioners,

aggrieved by which the present petition has been preferred u/s 482 Cr.P.C. for quashing the complaint Annexure P-l and the subsequent

proceedings.

Ms. Saloni Sharma, Learned Counsel for the respondent raised preliminary objection that the petition u/s 482 Cr.P.C. is not maintainable. She

contended that the impugned order is a revisable order. She further contended that for filing a revision against the impugned order, there are

specific provisions, under the Code of Criminal Procedure and once there are a specific provisions under the Code, then a petition u/s 482

Cr.P.C. is not maintainable.

On the other hand, Shri K.S.Dadwal submitted that the petitioners have not filed the petition for quashing the summoning order but has come to

this Court for quashing the complaint. He submitted that the respondent earlier filed a petition in this Court. The petition was allowed and trial

Court was directed to reconsider the material before it afresh by correctly considering the factual position. It was also directed that the Addl.

Sessions Judge should take into consideration fact that there was a delay in lodging the complaint and no FIR has been lodged to the police. Mr.

Dadwal further submitted that the learned trial Court has not been lodged to the police. Mr. Dadwal further submitted that the learned trial Court

has not considered the evidence on record in right perspective nor it has complied with the directions given by this Court.

Mr. K.S.Dadwal prayed that either the case should be remanded to the trial Court for re-considering the material facts placed before it or the

complaint should be quashed.

Ms. Saloni Sharma has submitted that learned Special Judge has complied with the directions issued by this Court. She further submitted that

the learned Special Judge after reconsidering the material placed before him and also taking into consideration the delay, has summoned the

petitioners. She submitted that petitioners after appearance before the learned Special Judge can move an application for dropping the

proceedings.

I have given my thoughtful consideration to the submissions made by the Learned Counsel for the parties and have perused the record.

Admittedly, the order is a revisable order. When there are specific provisions under the Code for the redressal of grievances of aggrieved party,

the powers under Sections 482 Cr.P.C. are not to be exercised. In the instant case, the impugned order is a revisable order and for that revision

lies u/s 401 Cr.P.C. and petition u/s 482 Cr.P.C. does not lie. In Balabhadra Dash and Another Vs. State of Orissa and Others, his Lordship has

held as under :-

Inherent power is wide in nature and S.482 in Cr.P.C. having been made to secure ends of justice or to prevent abuse of the process of Court,

such power is to be exercised with great restraint. Wider would be the power, greater should be the restraint. Ordinarily, trial of an accused in a

Criminal prosecution is to be concluded under the provisions of Criminal Procedure Code and High Court would be reluctant to conclude the

same at an interim stage. Therefore, prayer for quashing charge or taking cognizance ought not to be entertained in a routine manner and unless

High Court is satisfied that there is abuse of process of Court or ends of justice demands it, such prayed ought not to be entertained. Even if such

prayers are entertained, all endeavors should be made to examine if the abuse of powers of Court can be eradicated without bringing the

proceeding to an end in the midway. Where accused would be put to such inconvenient position that subsequent examination of these questions

would materially affect him which would be irreparable in nature, High Court can for reasons to be recorded in that regard, examine the material to

interfere with the continuance of trial. Therefore, where all the accused persons had an opportunity to advance submissions before the Magistrate

that materials on record do not call for framing of charge against them, High Court declined exercise of inherent powers for quashing cognizance.

In subordinate authority normally higher authority should not exercise its powers to give same relief.

In Mohan Lal and Another Vs. State, it has been held as under :-

The inherent power of the High Court under that provision, to my mind, cannot be pressed in aid for the purposes of indirectly undoing or

modifying an order which is appealable or revisable and has become final because no appeal or revision was filed against it or having been filed

were dismissed thus giving finality to the same. The order of the learned Magistrate dated 17th January, 1969 and the appellate order therefrom

are not in challenge in these proceedings.

Even on merits, the petitioners have no case. The learned Special Judge vide order dated 19.3.1999 summoned the petitioners after complying

with the order passed in Crl.Misc. No.25206-M of 1997. The relevant part of the order passed by the learned Special Judge thus reads as under

:-

Mohinder Pal, complainant challenged the said order before the Hon''ble High Court. The Hon''ble High Court vide order dated 5.8.1998

remanded the case to the Court of Addl. Sessions Judge with the directions to reconsider the material before him afresh by correctly considering

the factual position to reconsider the material before him afresh by correctly considering the factual position and also to take into consideration the

fact that there was delay in lodging the complaint. In that context the court was also directed to take note of the fact that no FIR had been reported

to the police in this case. After remand, the case was received by transfer in this Court.

I have heard the arguments advanced by Learned Counsel for the complainant. It is alleged in the complaint that accused Nos.2 and 34 while

armed with deadly weapons attacked the complainant and demolished their residential houses and cattle shed and had also broken the house hold

articles they also gave filthy abuses. Accused No.1 also insulted the complainant and addressed him as ""Chamar"" at a public place. Hence, a prima

facie case is made out for summoning all the accused for offence u/s 3(V) and Section 10 of SC/ST (Prevention of Atrocities Act), 1989. They be

accordingly summoned for 24.4.1999 on filing of PF and copy of complaint.

A perusal of the order shows that the learned Special Judge had taken into consideration the evidence led by the respondents while summoning

the petitioners. At the time of issuing of process against the accused, a prima facie is to be seen. At that stage, it is not to be seen whether the

accused is to be convicted or to be acquitted.

When the petition was filed in this Court, FIR has not been recorded. The respondent challenged the order in Crl.Misc.No.25206-M of

19997 that petitioners have not been summoned by the Special Judge, Hoshiarpur. this Court remanded the case to the learned Addl. Sessions

Judge. As it has been noticed above, the learned Special Judge had considered all the aspects of the case as per directions given by this Court.

However, the petitioners after putting into appearance, may move an application for dropping the proceedings or can argue the case for discharge

at the time of framing of charge.

For the reasons mentioned above, there is no merit in this petition and the same is dismissed.