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2003 DIGILAW 1380 (PNJ)

Karnail Singh v. State of Haryana

2003-10-07

M.M.KUMAR

body2003
ORDER M.M. Kumar, J. - This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity the Code) prays for quashing of complaint No. 162 dated 1.10.1994 pending adjudication in the Court of Sub Divisional Judicial Magistrate, Pehowa. A prayer has also been made to quash the order dated 7.11.2000 passed by the Sub Divisional Judicial Magistrate summoning the petitioner under Sections 420/506 Indian Penal Code and discharging the other accused namely Dr. Shamsher Singh Sodhi. 2. The facts in brief as disclosed in the instant petition are that the complainant-respondent filed a complaint against the accused-petitioner and another alleging that the complainant-respondent got engaged his daughter with the son of the petitioner. The accused-petitioner is alleged to have promised that son of the complainant-respondent should be sent abroad showing him green pasture. He took him to one Dr. Shamsher Singh Sodhi, who had also agreed to send the son of the accused-petitioner to Muscat. The accused- petitioner is alleged to have told the complainant-respondent that a sum of Rs. 35,000/- has to be spent if a person wants to go abroad. A sum of Rs. 5,000/- is alleged to have been paid in March 1993 alongwith the passport by the complainant-respondent. The accused-petitioner is alleged to have come to the house of the son of the complainant-respondent Surjit Singh when the afore-mentioned amount of Rs. 5,000/- was handed over. Thereafter, a sum of Rs. 30,000/- was also paid by the complainant-respondent to the accused- petitioner on 3.4.1993. It is alleged that neither the money had been paid back despite various visits and requests nor his son had been abroad. In fact the amount of Rs. 15,000/- each has been deposited by the acucsed-petitioner in the name of his son and in the name of the son of the complainant- respondent. An amount of Rs. 5,000/- is alleged to have been paid back by Dr. Shamsher Singh Sodhi. It is further alleged that despite the requests made by the complainant-respondent to the police, no case was registered resulting into filing of the instant complaint. 3. The petitioner si alleged to have received summons with a copy of the complaint on 25.11.1995 and he was later admitted to bail. On 13.10.1997, evidence of the complainant-respondent was closed by the order of the Court. 3. The petitioner si alleged to have received summons with a copy of the complaint on 25.11.1995 and he was later admitted to bail. On 13.10.1997, evidence of the complainant-respondent was closed by the order of the Court. On 14.9.1998 the Sub Divisional Judicial Magistrate, Pehowa charged the petitioner alongwith another co-accused under Sections 420/506/34 Indian Penal Code. On 7.9.1999, respondent No. 1 State of Haryana examined three PWs and the prosecution evidence was closed. The case was adjourned for recording statement under Section 313 of the Code. On 4.10.1999, the statement of the accused-petitioner was recorded under Section 313 of the Code. On 16.9.2000, the Magistrate passed an order stating that the summoning order was issued without recording preliminary evidence. It was further observed that the case was sent to the police seeking their report under Section 202 of the Code in the absence of any preliminary evidence. The Magistrate directed that preliminary evidence of the complainant be recorded and the accused if required would be summoned again. The bail bonds and the surety bonds existing on the case file were ordered to be discharged. On 19.9.2000, the Magistrate passed an order directing the accused-petitioner as well as another to be present through their counsel and he also examined three PWs. On 3.10.2000, Dr. Shamsher Singh Sodhi was discharged alongwith the proforma- respondent. However, the petitioner was summoned under Sections 420/526 Indian Penal Code. On 7.11.2000, the Magistrate dismissed the application filed by the acucsed- petitioner for amending the summoning order. Against the afore-mentioned orders dated 16.9.2000, and 3.10.2000 and 7.11.2000, the acused-petitioner filed a revision petition and the same was dismissed on 2.7.2003. The operative part of the order passed by the learned Additional Sessions Judge, Kurukshetra, reads as under :- "8. On being given my thoughtful consideration to the rival submissions advanced from both the sides before me, I am of the view that the present revision petition is not likely to succeed. The perusal of lower court file shows that in the preliminary evidence Joginder Singh (complainant) has categorically deposed that accused No. 1 (Karnail Singh) had obtained money from him on the pretext of sending his son abroad but neither his son was sent abroad nor his money was ever returned. He has further stated that accused No. 1 gave writing Ex. He has further stated that accused No. 1 gave writing Ex. C-1 under his signature but later on the accused did not return the money. The matter was reported to the police but no action was taken by the police and ultimately the complainant has instituted the present complaint in the Court. CW-2 Sant Singh and Kuldeep Singh as CW-3 have also corroborated the version of the complainant. They have categoracally deposed during their respective examinations that in their presence complainant Joginder Singh handed over passport and cash amount to accused No. 1 who assured the complainant that complainants son would be sent abroad very shortly. 9. It is well settled law that at the stage of passing the summoning order, the trial Magistrate is not supposed to scan the evidence led by the complainant so minutely and from the evidence led by the complaint, it is only to be seen as to whether a prima facie case qua accused persons was made out or not. From the preliminary evidence led by the complainant as discussed above a prima facie case for the commission of offence punishable under Sections 420 and 506 the Indian Penal Code is clearly made out qua revisisionist/accused No. 1 at this stage. 10. That being so, in view of the facts and the law laid down above, I do not find any irregularity or illegality in the impugned orders passed by the learned trial Magistrate and the same do not call for any interference by this Court in revisional jurisdiction." 4. Feeling aggrieved, the accused-petitioner has now filed the instant petition under Section 482 of the Code seeking quashing of orders dated 16.9.2000, 3.10.2000, 7.11.2000 and 2.7.2003 passed by the learned Additional Sessions Judge alongwith the complainant. 5. Mr. S.K. Kaushal, learned counsel for the petitioner has argued that once no preliminary evidence under Section 200 of the Code was recorded, the Magistrate was not empowered to direct the police to investigate under Section 156(3) of the Code. According to the learned counsel, before passing an order under Section 156(3) of the Code, it is mandatory for the Magistrate to record preliminary evidence and no direction could be issued to the police to investigate in the absence of preliminary evidence. According to the learned counsel, before passing an order under Section 156(3) of the Code, it is mandatory for the Magistrate to record preliminary evidence and no direction could be issued to the police to investigate in the absence of preliminary evidence. The learned counsel has also urged that the statements have been recorded in a mechanical manner by the police and the case has been forwarded to the Magistrate. Another submission has also been made by the learned counsel urging that the order of the Magistrate dated 16.9.2000 amounts to discharge of the petitioner as the bail bonds and the surety bonds stood discharged and there was no power with the Magistrate to order de novo trial because such a power vests only with this Court or revisional court under Section 397 of the Code. Reliance in this regard has been placed on two judgments namely Ram Charan Surdas v. Gaya Prasad, AIR 1952 Vindhya Pradesh 57 and Akalu Ahir and others v. Ramdeo Ram, 1973 Crl. L.J. 1404. The ground of limitation under Section 468 of the Code stipulating three years for the offences disclosed in the complaint has also been pressed and it is argued that there is complete misuse of the process of law by the complainant-respondent. 6. After hearing the learned counsel at a considerable length, I do not find any legal infirmity in the orders dated 2.7.2003 Annexure P-3 or any ground to quash the complaint. It is well settled that once the complainant discloses the commission of an offence, the Magistrate could proceed to make an enquiry by recording preliminary evidence or he may refrain from taking cognizance himself. In the alternative, he may deem it appropriate to refer the investigation of the allegations made in the complaint under Section 156(3) of the Code. If he takes cognizance of the complaint by recording preliminary evidence under Section 200 of the Code, he may still refer the complaint to the police under Section 202 of the Code. Therefore, the Magistrate did not commit any legal infirmity by issuing process against the accused-petitioner warranting interference of this Court under Section 482 of the Code. 7. If he takes cognizance of the complaint by recording preliminary evidence under Section 200 of the Code, he may still refer the complaint to the police under Section 202 of the Code. Therefore, the Magistrate did not commit any legal infirmity by issuing process against the accused-petitioner warranting interference of this Court under Section 482 of the Code. 7. I am further of the view that the allegations levelled in the complaint sufficiently disclose the commission of an offence, of which cognizance by the Magistrate could be taken or police report could be obtained by the Magistrate under Section 156(3) of the Code. In the case of State of Haryana v. Bhajan Lal, AIR 1992 Suppl.(1) SC 335 it has been observed that unless the FIR or the complaint failed to disclose the commission of an offence, or fails to fulfill the basic ingredients thereof, the same could not be quashed. A similar view has been taken by the Supreme Court in the case of Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, 1998(5) SCC 749. 8. The argument of the learned counsel that the order Annexure P-2 is an order of discharge under Section 245 of the Code has failed to impress me because no procedure has been followed to record the whole evidence and reaching a conclusion that no case against the accused-petitioner has been made out. The order Annexure P-2 dated 16.9.2000 does not in fact discharge the accused-petitioner by absolving him from the allegations. By no stretch of imagination, the afore-mentioned order could be considered as an order of discharge. The other argument that under Section 468 of the Code, a period of three years has expired is also liable to be rejected because the offences alleged against the petitioner are under Section 420/506/34 Indian Penal Code. For an offence under Sections 420/506 Indian Penal Code, the sentence which could be awarded is seven years. The bar of three years is attracted in respect of the offence punishable with imprisonment for a term exceeding one year but not exceeding three years. A bare perusal of Section 468 of the Code would make the afore- mentioned position absolutely clear and the same reads as under :- "468. The bar of three years is attracted in respect of the offence punishable with imprisonment for a term exceeding one year but not exceeding three years. A bare perusal of Section 468 of the Code would make the afore- mentioned position absolutely clear and the same reads as under :- "468. Bar to taking cognizance after lapse of the period of limitation - (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be - (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." 9. A perusal of sub-section 2(c) read with sub-section (3) of Section 468 of the Code makes it evident that no period of limitation is prescribed for an offence for which the punishment described is more than three years. Therefore, the submission made by the learned counsel is absolutely without any substance and deserves to be rejected. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.