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2011 DIGILAW 2179 (RAJ)

Sukhdev Singh v. State of Rajasthan

2011-10-12

SANDEEP MEHTA

body2011
Hon'ble MEHTA, J.—The aforesaid misc. petitions filed by petitioners-Sukhdev Singh, Avtar Singh, Resham Singh and Darshan Singh arise out of the same impugned order, therefore, they are being decided by this common order. 2. The petitioners in these misc. petitions have been summoned as accused for the offences under Sections 365, 342, 352 and 147 IPC in Criminal Case No. 694/2007 (Gamdoor Singh @ Duri vs. Darshan Singh & Ors.) by order dated 6.11.2007 passed by the Addl. Chief Judicial Magistrate, Hanumangarh. The said order has been affirmed in revision by the learned Sessions Judge, Hanumangarh by order dated 26.2.2008 in these separate revisions. 3. The respondent complainant filed the complaint referred to above against the petitioners with the following allegations. 4. That Gamdoor Singh had lodged a report at Police Station Sangaria on 2.3.2006 against one of the petitioners namely Resham Singh for offences under Sections 452 ad 376 IPC bearing FIR No. 116/2006. It was alleged in that report that accused Resham Singh has committed rape with the wife of Gamdoor Singh, respondent No. 2 herein and that the aforesaid Resham Singh was pressuring Gamdoor Singh and his wife to compromise the matter. It is further alleged that when the complaint Gamdoor Singh was working as a mason at Rudradev Agricultural Works at Village Kola near Hanumangarh Town, a call was sent for Gamdoor Singh by his father-in-law namely Sukhdev Singh for coming near the Hanuman Temple. It is alleged that a jeep, in which, accused Resham Singh, Darshan Singh, Avtar Singh and Balwant were sitting came near the place where the complainant was working and took him to the place where his father-in-law namely Sukhdev Singh was waiting for him near the Hanuman Temple. There, he was pressurized for compromising the matter of the FIR No. 116/2006 with Resham Singh, but when he refused, these accused persons took him to the Police Station. Gidderbaha (Punjab) and again pressurized him to enter into compromise, but when he again refused, he was implicated in a false case of recovery of poppy straw. 5. In support of the complaint, the complainant examined himself, Sandeep,Prem and Vinod Kumar. The learned Magistrate on the basis of the said statements proceeded to issue process against the petitioners herein for offences under Sections 365, 342, 352 and 147 IPC by order dated 6.11.2007. 6. 5. In support of the complaint, the complainant examined himself, Sandeep,Prem and Vinod Kumar. The learned Magistrate on the basis of the said statements proceeded to issue process against the petitioners herein for offences under Sections 365, 342, 352 and 147 IPC by order dated 6.11.2007. 6. Assailing the said order issuing process, three revision petitions being Revision Petition Nos. 16/2008, 15/2008 and 14/2008 were filed before the learned Sessions Judge, Hanumangarh and the learned Sessions Judge, Hanumangarh after hearing these revision petitions has jointly rejected the same by order dated 26.2.2008 and hence the present misc. petitions. 7. Assailing the order taking cognizance as affirmed by the learned Sessions Judge, learned counsel for the petitioners has submitted that in this case, even if the admitted case of the complainant is to be accepted as true, then also, no prima facie case is made out for proceeding against the petitioners. A copy of the judgment dated 15.4.2010 passed by the learned Sub Divisional Judicial Magistrate, Gidderbaha has been placed on record, as per which, the respondent Gamdoor Singh has been convicted for offence under Section 15 of the NDPS Act and has been sentenced to the period of his detention w.e.f. 27.6.2007 to 24.9.2007. The FIR in relation to the aforesaid recovery has also been placed on record of the misc. petition and it has been submitted in reference thereto that the whole story as set up by the complainant in his complaint is a false-hood. Admittedly, the complainant was released on bail from the case under the NDPS Act on 25.9.2007 and the complaint has been filed on 17.10.2007. It is submitted that there is no justification for this delay in filing of the complaint. It has also been submitted that the wife of the complainant has turned hostile in the case registered against Resham Singh and the present complaint has thus been filed by way of vengeance. It has further submitted that once, the case registered against the complainant under the NDPS Act at the Police Station Gidderbaha was found to be correct, then, the contention of the complainant that he has been falsely implicated in that case at the instance of the present accused petitioners could not be accepted and, therefore, the order taking cognizance against the petitioners should be set aside. 8. 8. It is submitted that the respondent complainant has come out with a case that he was illegally detained by the Punjab Police on 24.6.2007 and kept in wrongful confinement for two days at the Police Station while pressurizing him for entering into the compromise but he made no complaint to the Court at Punjab. It has further been submitted that Sukhdev Singh is the father-in-law of the complainant and the whole story has been created because the complainant's wife did not join him in the false allegation of rape against Resham Singh and thus having failed in his attempt to implicate Resham Singh in the rape case, the present prosecution has been lodged with ulterior motives. It is submitted that no evidence has been given in support of the complaint that Gamdoor Singh was kept in illegal custody at Police Station Gidderbaha for two days and, thus, the whole story of the complainant is a false-hood and the order impugned being an abuse of process should be quashed. 9. Per contra, learned counsel for the complainant Mr. S.S. Dhillon has submitted that in this case, only process has been issued against the petitioners and the learned Magistrate has given a finding regarding the existence of a prima facie case against the petitioners, as such, no interference should be made in the order taking cognizance. He submits that the case of the complainant regarding prima facie case being made out against the accused has been well established by way of the statements of the witnesses recorded under Section 200 and 202 Cr.P.C. 10. I have considered the arguments advanced at bar, perused the complaint, statements recorded in support thereof as well as the judgment of the competent court at Punjab in Criminal Case No. 193-1 of 17.9.2007 convicting the respondent No. 2 for the offence under Section 15 of the NDPS Act. 11. On a careful perusal of the material available on record, this Court is of the opinion that in this case, the complainant's admitted case is that he was released on bail in the case at Punjab on 25.9.2007 and thereafter, the present complaint has been filed belatedly on 17.10.2007. In the meantime, the complainant's case is that when he came back, he found that his wife was not in his house. In the meantime, the complainant's case is that when he came back, he found that his wife was not in his house. Apparently, the dispute between the complaint and his wife was going on and the complainant had filed the case of rape against Resham Singh. From the material available on record, it becomes apparent that the complainant was apprehending that his wife would not give evidence against Resham Singh and that is why, after having remained in custody at Punjab in relation to the case of recovery of poppy straw, he has conveniently used the factum of his wife having turned hostile in the aforesaid mentioned rape case against Resham Singh for filing the present complaint after having failed in his attempt to frame Resham Singh in the rape case. 12. In the opinion of this Court, looking to the fact that while appearing in the proceedings in the court at Punjab and while pleading his case before the learned trial Court at Punjab, no such plea was taken by the complainant regarding his having been forcibly brought from Rajasthan and thereafter having been falsely implicated in the case of narcotics. Thus a conclusion can safely be drawn that the present complaint has been filed against the petitioners by Gamdoor Singh for seeking vengeance and with malafide objective because his wife did not support the story of rape as set up by him against Resham Singh. The fact that the complainant's father-in-law namely Sukhdev Singh has also been arrayed in this case is also a relevant consideration for the purpose of arriving at a conclusion that the prosecution of the accused petitioners in this case is ex facie unjustified. 13. The essential ingredients for the offences under Sections 365, 342, 352 and 147 IPC cannot be said to be made out from the facts of the present case. The story of the complainant is also patently improbable because when the complainant himself alleges that when he was called by his father-in-law petitioner Sukhdev Singh, at that time Resham Singh (accused in the rape case) was also present in the jeep. In these circumstances, there was no occasion for the complainant to have proceeded in the jeep in which the aforesaid Resham Singh was also present. In these circumstances, there was no occasion for the complainant to have proceeded in the jeep in which the aforesaid Resham Singh was also present. The present complaint suffers from malafide and has been filed for wreaking vengeance against the accused petitioners after the attempts of the complainant to have Resham Singh punished in the case of rape could not succeed. 14. The upshot of the above discussion is that these misc. petitions succeed. The order dated 6.11.2007 passed by the learned Addl. Chief Judicial Magistrate, Hanumangarh taking cognizance against the petitioners and summoning them for the offences under Sections 365, 342, 352 and 147 IPC and the order dated 26.2.2008 passed by the learned Sessions Judge, Hanumangarh affirming the aforesaid revision petitions and all other subsequent proceedings being taking against the petitioners are hereby quashed and set aside.