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2014 DIGILAW 1518 (PNJ)

Satyawan v. State of Haryana

2014-11-11

M.M.S.BEDI

body2014
JUDGMENT Mr. M.M.S. Bedi, J. (Oral) - Petitioners have been summoned in a private complaint vide order Annexure P2 dated 15.10.2010 , under Sections 326, 324, 323, 452, 148, 149, 427 and 379 IPC. The said summoning order was challenged before the revisional Court. The revisional Court has dismissed the said petition solely on the ground that the petitioners had knowledge about the summoning order as they have filed an application for pre-arrest bail but they opted to file a revision petition beyond the period of limitation as such, the revision petition was dismissed as barred by time. 2. Counsel for the petitioners submits that controversy involved in the case is the subject matter of a State case in which the petitioners were also arrayed as accused but challan was not presented against them. 3. Counsel for the petitioners has also submitted that cancellation report had been filed against the petitioners by the police in which the petitioners having not been challaned, the complainant opted to file a private complaint in which they have now been summoned. It is submitted that without taking into consideration the cancellation report the petitioners could not have been summoned. He placed reliance on judgments in Jile Singh Vs. State of U.P. and another, 2012 (1) RCR (Crl.) 583 and Sunder Singh Vs. State of Haryana and another, CRM-M-19568 of 2012, decided on 3.9.2013. In Sunder Singh (supra) the summoning order was set aside with a direction to the Judicial Magistrate First Class, Hisar, to pass a fresh order taking into consideration the cancellation report submitted by the police in view of the provisions of Section 202 Cr.P.C. 4. I have heard the counsel for the petitioners and gone through the facts and circumstances of the present case. 5. The provisions of Section 202 Cr.P.C., will not come into operation in the present case as the summoning order has been passed on the basis of preliminary evidence produced before the Court on subjective satisfaction of the Court. The trial Court before summoning the petitioners as accused did not ask for any report under Section 202 Cr.P.C. It is not mandatory for a summoning Court to call for the report under Section 202 Cr.P.C. in every case. The trial Court before summoning the petitioners as accused did not ask for any report under Section 202 Cr.P.C. It is not mandatory for a summoning Court to call for the report under Section 202 Cr.P.C. in every case. It is the discretion of the Court before issuing summoning order to seek a report under Section 202 Cr.P.C., but a Magistrate cannot be directed to review the summoning order in a private complaint as it will tantamount to violation of provisions of Section 263 Cr.P.C. 6. So far as the judgment in Jile Singh (supra) referred to by the counsel for the petitioners is concerned, the said judgment does not lay down an absolute rule of law that in every case where the accused has been found to be innocent by the police in a State case, the complainant would be debarred from availing the remedy by filing a private complaint under Section 190 (1) (a) Cr.P.C., to be considered as per Chapter XV of the Code of Criminal Procedure. 7. Besides this, the petitioners have been summoned in the year 2010. The revision petition has been dismissed being barred by time. I do not find any infirmity in the order of revisional Court in declining to interfere in the summoning order, the petition is dismissed. 8. It is made clear that any observation made in this order will not prejudice the rights of the petitioners to seek the benefit of doubt taking advantage of the cancellation report. 9. Counsel for the petitioners, at this stage, refers to provisions of Section 210 Cr.P.C., prescribing procedure to be followed when there is a private case and police investigation in respect of the same offence. In the present case, the complainant in his complaint has specifically referred to the said case in paras 5 and 6 of the complaint Annexure P1 and stated that the police had intentionally not arrested all the accused except for Jasbir Singh and Sandeep Singh. No prayer has been made to the Court w.e.f. 2010 till the year 2014 for seeking of report. After expiry of five years, it will be not be appropriate to direct the trial Court to advert to the provisions of Section 210 (1) Cr.P.C. to stay the proceedings and call for the report after a gap of 4 years. No prayer has been made to the Court w.e.f. 2010 till the year 2014 for seeking of report. After expiry of five years, it will be not be appropriate to direct the trial Court to advert to the provisions of Section 210 (1) Cr.P.C. to stay the proceedings and call for the report after a gap of 4 years. The irregularity if any, will not vitiate the criminal trial or the complaint at this stage. 10. It will be open to the petitioners to move an application for adjudication of the complaint and the police case simultaneously depending upon the status of both the cases. ---------0.B.S.0------------ —————————