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2012 DIGILAW 1242 (PNJ)

Dalip Kumar Sareen v. State of Punjab

2012-09-19

MEHINDER SINGH SULLAR

body2012
JUDGMENT Mr. Mehinder Singh Sullar, J.: (Oral) - Tersely, the facts & material, culminating in the commencement, relevant for deciding the instant petition and emanating from the record, are that, in the wake of complaint of complainant Dalip Kumar Garg, Advocate, respondent No.2 (for brevity “the complainant”), a criminal case was registered against the petitioners-accused, by means of FIR No.63 dated 28.6.2008, on accusation of having committed the offences punishable under sections 417, 419, 468, 469, 471 and 120-B IPC by the police of Police Station Division No.8, Ludhiana. 2. During the course of investigation, it was found that the Ludhiana Police did not have the jurisdiction to register and investigate the case. Consequently, on the recommendation of DIG Ludhiana, the final report of cancellation of the case (Annexure P1) was prepared and was submitted in the Court of Area Magistrate. Aggrieved by it, the complainant filed a protest petition (Annexure P2) to the cancellation report. 3. The Magistrate rejected the cancellation report submitted by the police and treated the protest petition (Annexure P2) as a complaint and straightway jumped to summon the petitioners as accused without recording any preliminary evidence, by way of impugned summoning order dated 14.3.2011 (Annexure P3). 4. The petitioners-accused did not feel satisfied and preferred the present petition to quash the impugned protest petition and summoning order, invoking the provisions of section 482 Cr.PC. 5. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, the instant petition deserves to be partly accepted in this context. 6. As is evident from the record that on the basis of enquiry and recommendation of DIG, the police submitted the cancellation report (Annexure P1), to which, the complainant filed the protest petition. 6. As is evident from the record that on the basis of enquiry and recommendation of DIG, the police submitted the cancellation report (Annexure P1), to which, the complainant filed the protest petition. The trial Magistrate did not record the preliminary evidence on oath and straightway summoned the petitioners as accused, by virtue of impugned summoning order (Annexure P3), the operative part of which is as under:- “So, the cancellation report submitted by the police is rejected and the protest petition filed by the complainant is treated as complaint and the cognizance is taken by this Court and the accused namely Vijay B.Verma, Chetan Verma @ Sunny, Dalip Kumar Sareen, Ajay Chopra and Manjit Singh are summoned for the offences punishable U/s 417/419/468/469/471/120-B IPC for 16.7.2011 on filing PF/copy/set or summons and the list of witnesses.” 7. Above being the position on record, now the short & significant question, though important, that arises for determination in this case, is as to whether the Magistrate was legally competent to summon the petitioners as accused without following the statutory procedure of taking cognizance in a case instituted on a private complaint or not? 8. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative in this respect. 9. As is clear that Chapter XV of Cr.PC enumerates the procedure of taking cognizance of an offence on a private complaint. Section 200 postulates that “A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.” Sections 202 and 203 Cr.PC deal with the postponement of issue of process and dismissal of complaint. Sequelly, section 204 further posits that “If in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he shall issue the summons/warrant, as the case may be against the accused.” 10. Sequelly, section 204 further posits that “If in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he shall issue the summons/warrant, as the case may be against the accused.” 10. A plain and meaningful reading of these provisions would reveal that it was the statutory duty of the Magistrate to record the evidence of the complainant on oath and then to apply his mind, as to whether the indicated acts of the accused are squarely covered and fall within the ambit of indicated offences or not. He ought to have discussed the evidence on record and to record the valid grounds for forming an opinion that there is prima facie material on record, to summon the petitioners as accused. It is now well settled principle of law that such orders must be informed by reasons, fair, clear and must be structured by rational and relevant material on record, which are deeply lacking in the present case in this relevant direction. 11. What cannot possibly be disputed here is that, summoning of an accused in a criminal case is a very serious matter. The criminal law cannot possibly be set into motion as a matter of course. The order of the Magistrate, summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of complaint and the evidence, both oral and documentary in support thereof, relatable to the relevant provisions of the offences and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at this stage. The accused cannot be summoned in a routine manner, in view of the law laid down by the Hon’ble Apex Court in case M/s Pepsi Foods Limited v. Special Judicial Magistrate, 1997(4) RCR (Criminal) 761 : 1998 AIR (SC) 128. The ratio of the law laid down in the aforesaid judgment “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 12. The ratio of the law laid down in the aforesaid judgment “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 12. Meaning thereby, the impugned summoning order (Annexure P3) is not only non-speaking, lacks application of mind, illegal but against the indicated statutory provisions as well, cannot be sustained in the eyes of law and deserves to be & is hereby quashed in the obtaining circumstances of the case. 13. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent trial of the case, the instant petition is partly accepted. Consequently, the impugned summoning order (Annexure P3) is set aside. The matter is remitted back to the trial Magistrate to follow the mandatory/statutory procedure of Chapter XV of Cr.PC before summoning the petitioners as accused, in view of the aforesaid observations and in accordance with law. 14. Needless to mention that, the trial Magistrate would be at liberty to apply his mind and to pass a fresh summoning order after following the due procedure as discussed here-in-above. 15. The parties through the counsel are directed to appear before the trial Magistrate on 4.10.2012 for further proceedings. ---------0.B.S.0------------