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2007 DIGILAW 24 (JK)

Pritam Chand v. Prem Singh

2007-03-13

J.P.SINGH

body2007
Aggrieved by the proceedings pending in respondents complaint before Learned Sub-Judge, Judicial Magistrate, Ist Class, Jammu under sections 452, 323 and 504 of the Ranbir Penal Code, the petitioners have filed this petition under section 561-A of the Code of Criminal Procedure seeking quashing of the proceedings besides setting aside of Learned Sessions Judge, Jammus Order dated 20th of March, 2004 whereby he had dismissed petitioners revision seeking quashing of Order dated 24th of December, 2003 of the Judicial Magistrate, Ist Class, Jammu, framing charge against the petitioners. 2. Facts giving rise to this petition may be stated thus:-- Prem Singh, respondent filed a complaint against the petitioners with the allegations that the petitioners, armed with deadly weapons entered the respondents house to know the whereabouts of his son Gurmeet Singh who had allegedly abused Pritam Chand while travelling in a bus. Prem Singhs reply did not satisfy the petitioners who bet the complainant with Lathies (clubs) and fists, besides hurling abuses giving provocation to the respondent and his family members to commit breach of peace." 3. On appearance of the petitioners before the Learned Judicial Magistrate, the respondent/complainant was directed to lead his evidence. He, besides appearing as his own witness, produced Balbir Singh and Rajinder Singh in support of the complaint. Learned Magistrate thereafter closed the evidence and recorded the statement of the petitioners under section 342 of the Code of Criminal Procedure. The case was fixed for hearing the parties on the question as to whether there was any prima facie case for faming charge against the petitioners. It appears from the interim orders on the file of the Learned Magistrate that rather than finding out as to whether any prima facie case had been made out against the petitioners, the Learned Magistrate had directed the complainant to lead his evidence once again. No evidence was however produced by the complainant and it was later closed by the Court. 4. This mistake was later corrected by the Magistrate on 24-12-2003 when he, after hearing the parties, found a prima facie case under sections 452, 323 & 504 of Ranbir Penal Code to have been made out against the petitioners. This order of framing charge was questioned by the petitioners in a revision petition before Learned Principal Sessions Judge, Jammu. 4. This mistake was later corrected by the Magistrate on 24-12-2003 when he, after hearing the parties, found a prima facie case under sections 452, 323 & 504 of Ranbir Penal Code to have been made out against the petitioners. This order of framing charge was questioned by the petitioners in a revision petition before Learned Principal Sessions Judge, Jammu. Learned Sessions Judge, Jammu did not find any merit in the revision petition and dismissed it vide his Order dated 20th of March, 2004. 5. Aggrieved by the rejection of their Revision petition by Learned Sessions Judge, the petitioners have filed this petition seeking quashing of proceedings in respondents complaint. 6. Appearing in support of the petition, Mr. B.B.Kotwal, learned counsel for the petitioners, while referring to number of judgments has urged that Criminal Proceedings pending against the petitioners at the instance of the respondent had resulted in the abuse of process of the Court because the proceedings had been instituted by the respondent with malafide intention to wreak vengeance on petitioner Pritam Chand who had filed an F.I.R against the respondent and his sons who had attacked him while he was proceeding to attend his duties. Learned Counsel submits that respondents Complaint was a counter blast to the F.I.R of petitioner No.1. Learned Counsel submits that mistake committed by the Learned Magistrate in directing the complainant to lead evidence afresh was a procedure unknown to law and this act of the Magistrate would vitiate the trial because after having failed to lead evidence when afforded an opportunity by the learned Magistrate, though for the second time, the respondent/complainant had failed to produce his evidence and in that view of the matter, no further trial of the petitioners can be allowed to continue because such a course would amount to double jeopardy. 7. Mr. Surinder Singh, learned counsel for the respondent, on the other hand, while reiterating the grounds on which Learned Sessions Judge had rejected the revision petition, urged that mistake committed by the Learned Magistrate would not affect the prosecution of the respondent because no prejudice had been caused to the petitioners because of the order of the Magistrate. Learned Counsel submits that plea of double jeopardy raised by the petitioners was misconceived. 8. Learned Counsel submits that plea of double jeopardy raised by the petitioners was misconceived. 8. I have considered the submissions of learned counsel for the parties and gone through the judgments cited at the bar by learned counsel for the petitioners. I will first deal with the plea of double jeopardy raised by the learned Advocate appearing for the petitioners. 9. Before dealing with the submission of learned counsel for the petitioner on the issue, reference needs to be had to the provisions of Article 20 of the Constitution of India which reads thus:-- "20. Protection in respect of conviction of offences--(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself." 10. Article 20 of the Constitution of India incorporates prohibition against double jeopardy. What this Article of the Constitution bars is the prosecution and punishment after an earlier punishment of the same offences. In nutshell, what is barred is the second prosecution after the first prosecution has resulted either in conviction or acquittal for an offence. Article 20 (2) of the Constitution of India will thus have absolutely no application to the facts of the case because neither had the petitioners been earlier prosecuted nor convicted or acquitted for the offences for which they are being tried on the complaint of the respondent. The mistake committed by the Learned Magistrate in directing the respondent to lead his evidence yet again when he had already led his evidence, would not, in my opinion, amount to double jeopardy as urged by the learned counsel for petitioners, particularly when the mistake had been rectified by the Learned Magistrate in hearing the parties on the evidence which had earlier been led by the respondent/complainant in support of his complaint. The plea of learned counsel for the petitioners that the present trial in the complaint was hit by principle of double jeopardy is an argument of despair and rather mis-conceived. The plea of learned counsel for the petitioners that the present trial in the complaint was hit by principle of double jeopardy is an argument of despair and rather mis-conceived. I, therefore, reject this submission of learned counsel for the petitioners. 11. The next plea of learned counsel for the petitioners that the present complaint was a counter blast to the F.I.R of petitioner No.1, is a pure factual plea, determination whereof, would require leading of evidence by the petitioners when they were called upon to produce defence evidence, if need so arose. In the absence of any material on records or circumstances indicating the filing of complaint as counter blast to the F.I.R of petitioner No.1, it may not be permissible for this Court to hold that the complaint of the respondent was malafide. The plea raised by learned counsel for the petitioners is thus devoid of any force and is, accordingly, rejected. 12. It was contended by learned counsel for the petitioners on the basis of PNB and Ors. Versus Surendera Prasad Sinha, reported as AIR 1992 SC 1815 that the prosecution against the petitioners deserved to be quashed. 13. I have gone through this judgment, but do not find any thing on records of this case on the basis whereof it may be said that the approach adopted by learned Magistrate was injudicious before issuing process against the petitioners, when he had before him the complainants preliminary evidence which was sufficient enough to issue process against the petitioners. The judgment cited by learned counsel for the petitioners, therefore, does not apply to the facts of the case. 14. Learned counsel for the petitioners, lastly referred to M/s Indian Oil Corporation Vs. M/s NEPC India Ltd. and others, reported as 2006 (3) Crimes 182 (SC) to support his plea for quashing respondents complaint and proceedings therein. 15. I have considered the law laid down in this judgment. 16. Inherent jurisdiction may be exercised in a case where there was clear abuse of process of the court and when criminal proceedings were found to have been initiated with malafide intention to wreak vengeance on or to cause harm to the accused or where the allegations were absurd or inherently improbable. Inherent jurisdiction has, however, to be exercised sparingly. 17. Inherent jurisdiction may be exercised in a case where there was clear abuse of process of the court and when criminal proceedings were found to have been initiated with malafide intention to wreak vengeance on or to cause harm to the accused or where the allegations were absurd or inherently improbable. Inherent jurisdiction has, however, to be exercised sparingly. 17. Keeping in view the law laid down by Honble Supreme Court of India in its various judgments including the one cited by learned counsel for the petitioners and the caution sounded by the Apex Court while exercising inherent power with care and caution and sparingly, I am of the view that facts of the present case do not justify the exercise of inherent jurisdiction to truncate the prosecution in respondents complainant which by this time must have been concluded had the criminal proceedings not been stalled because of the pendency of this petition in the court. 18. For all what has been said above, I do not find any merit in this petition and would, accordingly, dismiss it. 19. I would, accordingly, while dismissing this petition, direct Learned Sub-Judge, Judicial Magistrate, Ist Class, Jammu to conclude the disposal of this Complaint within a period of four months. Learned Magistrate shall give priority to the case and, if need be, shall take up the case for consideration after every week.