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2003 DIGILAW 306 (HP)

JAGAT RAM v. DINA NATH

2003-10-16

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—The petitioner/accused (hereinafter referred to as the accused) has filed the present petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as the Code) for quashing the complaint filed against him by the respondent/complainant (hereafter referred to as the complainant) under Section 7 of the Protection of Civil Rights Act and Sections 504 and 506 of the Indian Penal Code and the order dated 7.1.2003 allowing the application of the complainant, under Section 311 of the Code. 2. Brief facts relevant for the purpose of disposal of the present petition are that the complainant has filed a complaint against the accused in the Court of learned Additional Chief Judicial Magistrate, Sundernagar on the allegations that on 10.10.1999 at about 8.30 a.m. the accused obstructed the passage of the tractor which was loaded with the construction material of one Gian Chand and did not permit the tractor to pass through the passage through Khasra No. 729. When Gian Chand and the complainant approached the accused with a request to allow the tractor to pass through the path, the accused did not pay any heed and on the contrary he abused the complainant saying : "TOO DUMNA HAI MEIN TUJH JESI CHHOTI JAAT WALE KO SABAK SIKHAUNGA. MEIN JANTA HOON TOO ACHHOOT HAL DOOR REH AUR AUR TUJH JESE ACHOOT SE BAAT NAHIN KARUNG A AUR TUJHE JAAN SE MAAR DUNGA" and apart from uttering these words, he hurled filthy abuses on the complainant. 3. The complainant led preliminary evidence on the basis of which the learned trial Magistrate vide order dated 29.6.2000 directed issue of process-against of the accused for the commission of an offence punishable under Section 7 of the Prevention of Civil Rights Act. After appearance of the accused in pre-charge evidence, statements of four PWs. were recorded. One of the PWs. namely Inder Singh while under examination stated that he had already made a statement in the case which was correct and he did not want to say anything more. After appearance of the accused in pre-charge evidence, statements of four PWs. were recorded. One of the PWs. namely Inder Singh while under examination stated that he had already made a statement in the case which was correct and he did not want to say anything more. In view of this statement of the witness, the complainant filed an application under Section 311 of the code with the prayer to ra-call said Inder Singh in view of the cryptic statement made by him so that his statement is not termed as "irregular piece of evidence which may lead to failure of justice." This application was allowed by the learned trial Magistrate vide order dated 7.1.2003. Being aggrieved by the complaint, as well as the aforesaid order dated 7.1.2003, the accused has preferred the present petition for quashing the complaint as also the order dated 7.1.2003 on the grounds that the complaint does not disclose the commission of the alleged offence and so is the case with the preliminary evidence and the trial of the complaint is mere westage of the time of the Court and the accused who will have to attend on each and every future date if the trial is continued. It is further claimed that the respondent is prolonging the proceedings with a view to harass and humiliate the accused which is an abuse of process of the Court. It is also claimed that the Court below had erred in law by allowing the application for re-calling Inder Singh and has thus exercised the jurisdiction which is not vested in it. 4. The respondent did not file any reply but did not concede the averments made in the petition and challenged the correctness thereof on the basis of the material on record and the relevant provisions of the law. 5. I have heard the leaned counsel for the parties and have also gone through the records. 6. It was contended for the accused that the complaint filed against the accused does not disclose commission of any offence and so is the case with the preliminary evidence and pre-charge evidence already brought on record. Therefore, in view of the contents of the complaint and the material on record, the continuation of the proceedings in the case is wastage of time and the complaint and proceedings thereon deserve to be quashed. Therefore, in view of the contents of the complaint and the material on record, the continuation of the proceedings in the case is wastage of time and the complaint and proceedings thereon deserve to be quashed. On legal aspect of the matter, the learned counsel for the accused contended that in view of the material available on record, the complaint/proceedings thereon at this stage can be quashed in exercise of the powers vested in the High Court under Section 482 of the Code and simply because the learned trial Magistrate has the powers to discharge the accused, the parties cannot be relegated to the trial Court to unable it to decide about framing a charge or discharging the accused. On the contrary this Court has the power and jurisdiction to appreciate the material on record to decide whether continuation of the complaint is or is not misuse of the powers of the Court. To substantiate his submissions, the learned counsel relied on Inder Singh v. Hardev Singh, 1992(1) RCR 75 ; R.K. Chanan and others v. State ofHaryana, 1992(1) RCRV8 ; M/s. Jandu Mai Desk Raj v. State ofHaryana, 1996(3) RCR 736; M/s. Karma Chand and Sons v. State of Punjab, 1998(4) RCR 383 and Lakhwinder Singh v. State of Punjab, 2000(4) RCR (Cr) 104. 7. It may be pointed out at this stage that there is no dispute with the proposition of law as laid in the aforesaid judgments relied on by the learned counsel for the accused. Therefore, the said judgments need not be set out in detail here. 8. Section 482 of the Code preserves the inherent powers of the High Court which gives the widest jurisdiction to the Court to undo such injustice which cannot be undone under any other provision of the Code. However, this power is to be used within the framework of the Section that is to give effect to any order under the Code or to prevent abuse of the process of the Court or to secure the ends of justice. Stage of the case will be immaterial for exercise of its inherent powers by the High Court if any of the aforesaid objective is to be achieved. To arrive at a just conclusion, the Court is decidedly required to look into the facts and circumstances of the case as disclosed by the material on record. Stage of the case will be immaterial for exercise of its inherent powers by the High Court if any of the aforesaid objective is to be achieved. To arrive at a just conclusion, the Court is decidedly required to look into the facts and circumstances of the case as disclosed by the material on record. In case a complaint does not disclose commission of any offence or the allegations therein are absurd and inherently improbable, it must be quashed because its continuation will be misuse of the process of the Court. However, if the complaint is based on probable allegations and discloses commission of offence(s) by the accused, it cannot be quashed. 9. In the case in hand, the allegations in the complaint clearly and unambiguously disclose the commission of an offence by the accused and the allegations are probable though a matter of proof. Thus, there is no such inherent legal defect in the complaint which may afford a ground to quash it. 10. The preliminary evidence led by the complainant in support of the allegations made in the complaint consists of the statements of the complainant (CW-1) and Inder Singh (CW-2). They have fully supported the allegations in the complaint disclosing grounds to issue process against the accused. Therefore, there is nothing illegal even in the summoning order. 11. In his pre-charge evidence the complainant in addition to the aforesaid witnesses examined Gian Chand (PW-2) and Gajan Ram (PW-3). However, Inder Singh (PW-4) in his pre-charge evidence made a cryptic statement saying that he had already made a statement (that is the statement recorded in preliminary evidence in the absence of the accused) and refused to make any further statement and was not examined further nor was compelled to state the facts within his knowledge. Be it stated that in his statement at the stage of preliminary evidence this witness had supported the allegations in the complaint and had corroborated the incriminating statement of the complainant. In view of his cryptic statement as referred to above having been recorded, the complainant moved an application under Section 311 of the Code to recall Inder Singh (PW-4) who was not cross-examined for the accused, the application was allowed by the trial Court. Accused seeks quashing of this order on the ground that the order for recalling PW-4 is without jurisdiction. 12. Accused seeks quashing of this order on the ground that the order for recalling PW-4 is without jurisdiction. 12. Section 311 of the Code confers a very wide discretion on a Criminal Court to summon, examine, recall and examine any person as a witness at any stage of an inquiry, trial or proceeding under the Code, if his evidence appears to be necessary to the just decision of the case. It cannot, therefore, be said that the trial Court had no jurisdiction to recall PW-4. In view of his statement at the stage of recording of preliminary evidence and his refusal to state facts at the time of recording of his statement at pre-charge stage obviously is a good and valid reason to re-call him. Thus, the trial Court has exercised its discretion in recalling PW-4 in a judicious manner keeping the interest of justice in view. Therefore, the contention for the accused that order recalling PW-4 is without jurisdiction and liable to be quashed is devoid of any merit and substance. 13. Since a very materal witness in the case, viz. PW-4 is yet to be examined, therefore, it is not desirable at this stage to common about the pre-charge evidence already recorded in the case. 14. In view of the above discussion and conclusions, this petition merits dismissal and is accordingly dismissed. 15. The parties, through their learned counsel, are directed to appear before the trial Court on 17.11.2003. Petition dismissed.