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2013 DIGILAW 1411 (PNJ)

Babu Ram v. Raj Pal

2013-10-25

JITENDRA CHAUHAN

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Judgment Jitendra Chauhan, J. The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing the compliant No.36/12 dated 30.4.2010, pending in the Court of learned Judicial Magistrate, 1st Class, Karnal and the summoning order dated 7.12.2012, vide which the petitioner has summoned under Section 148, 149, 307, 328, 452 of the Indian Penal Code. Learned counsel for the petitioners contends that the learned summoning court has committed a grave error while summoning the petitioners without considering the cancellation report. No doubt, there is a dispute between the petitioners and the complainant being the brothers with regard to the ancestral land, but the complainant was having a grudge against the petitioners. The petitioners have been falsely implicated in the present case. He further submits that the petitioner registered an FIR against the petitioners, after thorough investigation, the petitioners were found innocent and the police filed a cancellation report in the Court. On the other hand, the learned counsel for respondent No.1 submits that there is specific allegation against the petitioners. The petitioners caused injuries to the wife of the complainant. Heard. The only point to be decided in this case is as to whether the cancellation report filed by the police in the State case is binding on a Magistrate, while passing the summoning order in a complaint case on similar set of allegation as in the State case. No doubt, the dispute is interse the brothers with regard to the ancestral land. Earlier FIR No.93 dated 7.3.2010, under Section 307, 328 of IPC was registered against the petitioners, on the same set of facts. In the said case, there were specific allegation against the petitioner with regard to the causing of injuries to the wife of the complainant. Petitioner Mukesh caused danda blow to the wife of respondent no.1. Om Parkash, Subhash Chand and Raj Bala caught hold of his wife and then Subash Chand and Premo administered some poisonous substance in her mouth. The learned JMIC while summoning the petitioners vide order dated 7.12.2012, has specifically observed as under:- “9. I have perused this bed head tickets of the wife of the complainant i.e. Smt. Babli. The diagnosis mentioned by the doctor is suspected poisoning which supports the case of the complainant that poison was administered to his wife. The learned JMIC while summoning the petitioners vide order dated 7.12.2012, has specifically observed as under:- “9. I have perused this bed head tickets of the wife of the complainant i.e. Smt. Babli. The diagnosis mentioned by the doctor is suspected poisoning which supports the case of the complainant that poison was administered to his wife. Moreover, the patient remained in the hospital for a continuous period of approximately 10 days i.e. from 7.3.2010 to 17.3.2010. The doctor has specifically mentioned in his testimony that the possibility of fatality cannot be ruled out if the treatment was not given in time, which shows the critical condition of the patient when she was brought to the hospital for treatment. 10. CW3 Smt. Babli wife of the complainant has also corroborated the allegations of the complaint.” It is submitted that the police has submitted cancellation report in the FIR case on the same set of allegations on 20.4.2010. But it was not accepted by the Magistrate till the summoning order dated 7.12.2012, was passed in the criminal complaint. No notice of cancellation report was given to the lodger of the FIR. No opportunity of hearing or an opportunity to file protest petition was given to the informant. Mere submission of cancellation report by the police is not a bar to file complaint on the same set of allegations before the Magistrate. There is specific procedure prescribed in cancelling the FIR, which was not adhered to in this case. In the complaint, the lodging of FIR is mentioned and thus, there is no concealment of facts. The Magistrate after holding an enquiry into the complaint found that against all the accused the offences under Sections 148, 149, 307, 328, 452 of IPC are made out. So, it is held that the Magistrate was not bound to consider the cancellation report (which was not before him) at the summoning stage. No case to interfere in the summoning order by this Court is made out in exercise of power under Section 482 of the Code. In view of the above, this Court finds no illegality or perversity in the impugned order dated 7.12.2012, vide which, the petitioners have been summoned to face the trial. As such, the present petition being bereft of any merit is dismissed.