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2014 DIGILAW 255 (PNJ)

Tarun Rohilla v. State of Haryana

2014-01-31

SURINDER GUPTA

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Mr. Surinder Gupta, J.: - The petitioners seek the quashing of the order dated 05.07.2010 passed in complaint No.511 dated 31.08.2009 (Annexure P-12) by the Chief Judicial Magistrate, Gurgaon along with quashing the complaint and all the subsequent proceedings arising therefrom. 2. The complaint was filed by Smt. Archana against the petitioners for offences under Sections 406, 420, 120-B, 506, 471, 468, 167, 168 IPC. The dispute pertains to the residential plot bearing No.337 in Sector 45, Gurgaon, allotted to the complainant vide allotment letter No.1842 dated 19.11.2004. As per the complainant, petitioner No.3-Sudesh Kumar Rohilla had close relations with her husband. He had obtained signatures on certain blank papers about three years before filing of the complaint on the pretext of taking some loan in the name of petitioners No.1 and 2. Petitioners No.3 and 4 gave assurance to respondent No.2 and her husband that being property dealers they will arrange a handsome bargain for their plot. However, petitioner No.3 in collusion with petitioners No.1 to 4 started misusing signatures of respondent No.2 and her husband and on the basis of these documents got transferred the plot from their name in the name of petitioner No.1 and 2. Respondent No.2 came to know about the fraud on receipt of the permission letter for the transfer of her plot No.337, Sector 45, Gurgaon from the Estate Office, HUDA, Gurgaon. On inquiry, she came to know about the entire fraud. 3. The trial Court recorded the statement of following witnesses:- 4. Ram Niwas (CW1), Kuldeep Sharma (CW2), Sushil Kumar (CW3), P.K.Raman (CW4), Smt. Archana (CW5) and ordered the summoning of the petitioners for offence under Sections 420,467,471 read with Section 120-B IPC. Petitioners No.3 and 4 were also summoned to face trial for offence under Section 506 read with Section 34 IPC. 5. Learned counsel for the petitioners has argued that the petitioners are the residents of Rohtak. The summoning order was passed by the Additional Chief Judicial Magistrate, Gurgaon. Without complying with the provisions of Section 202 Cr.P.C. and has not taken into account the civil litigation pending in between the parties regarding the same plot. 5. Learned counsel for the petitioners has argued that the petitioners are the residents of Rohtak. The summoning order was passed by the Additional Chief Judicial Magistrate, Gurgaon. Without complying with the provisions of Section 202 Cr.P.C. and has not taken into account the civil litigation pending in between the parties regarding the same plot. He has argued that the complainant has earlier made the complaint at Rohtak and also at Gurgaon to police which was found to be false and in case the trial Court had entered into inquiry, this fact would have come to its notice and the summoning order may not have been passed. He has relied upon the judgment of this Court in case of S.K. Bhowmik Vs. S.K.Arora and another, reported as 2007 (4) R.C.R. (Criminal) 650, wherein it has been observed as follows:- “The Magistrate can then either hold enquiry or direct investigation to be made either by police officer or any other person. This is to help the Magistrate to decide if there is sufficient ground for him to proceed further. This seems to be emerging from the wording of Section 202 Cr.P.C. Thus, after taking cognizance, the stage of issuing a process would come, which under Section 202 Cr.P.C. can be postponed by the Magistrate if he thinks fit to hold an enquiry or direct an investigation to see if there are sufficient grounds for proceeding or not. This enquiry or investigation now is made obligatory/mandatory in a case where accused is residing at a place beyond the area in which he exercises jurisdiction.” 6. He has also relied upon the observations by the Hon’ble Supreme Court in case Udai Shankar Awasthi Vs. State of U.P. and another reported as 2013 (2) R.C.R. (Criminal) 503 wherein it has been observed as follows:- “The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.. (See also: Shivjee Singh V. Nagendra Tiwary and others., [2010(4) Law Herald (SC) 2779] : 2010 (3) R.C.R. (Criminal) 466: AIR 2010 SC 2261 ; and National Bank of Oman V. Barakara Abdul Aziz and Another., JT 2012 (12) SC 432).” 7. The provisions of Section 202 Cr.P.C. are mandatory and this fact has not been disputed even by the learned counsel for the respondents. The petitioners are residents of Rohtak and the learned Magistrate was well aware of this fact. In para 5 of the summoning order (Annexure P-13) it has been observed as follows:- “In case titled as Mohinder Singh Vs. Gulwant Singh and others 1992 (2) Recent Criminal Reports 134 (SC), it has been held by the Hon’ble Supreme Court of India that at the time of passing of summoning order in a criminal complaint the Court has not to go into the question of sufficiency of evidence for conviction. The Court has to see whether a prima facie case has been made out so as to put the accused on regular trial. No detailed enquiry is called for. The question whether evidence is adequate for supporting conviction, can be determined only at the trial and not at the stage of enquiry under Section 202 Cr.P.C. In case titled as Parkash Kaur and others Vs. Smt. Hardeep Kaur, 1993 (1) Recent Criminal Reports 380 (P&H) it has been held by the Hon’ble Punjab & Haryana High Court that at the stage of summoning of accused Magistrate is not required to meticulously examine and evaluate the evidence. The Magistrate is also not required to record reasons. A brief order indicating that Magistrate applied his mind is all that is expected at this stage. The Magistrate is also not required to record reasons. A brief order indicating that Magistrate applied his mind is all that is expected at this stage. In the present case, the complainant Smt. Archana Rohilla while appearing in the witness box as CW5 in her preliminary evidence has fully supported her allegations levelled by her against the accused in her complaint. The allegations of the complainant have also been fully supported by CW1 Shri Ram Niwas. Advocate, CW2 Sh. Kuldeep Sharma, stamp vendor and CW4 Shri P.K. Raman, Assistant in the office of Estate Officer, II, HUDA, Gurgaon. CW3 Sh. Sushil Kumar Ahlmad to the court of learned CJM, Gurgaon brought the summoned file of civil suit titled as ‘Tarun Rohilla Vs. Archana Rohilla’, which is pending in the court of Sh. D.N.Bhardwaj, learned Additional Civil Judge (Sr. Divn.) Gurgaon. The complainant has also placed on record affidavit of complainant Mark-A, affidavit of accused No.1 Mark-B, indemnity bond Mark-C and affidavit by transfer Mark-D in support of her allegations.” 8. The question which arise for consideration is as to what is the scope of inquiry under Section 202 Cr.P.C. The provisions of Section 202 Cr.P.C. are as follows:- 1) “Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. 2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on aoth. 3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant”. The Hon’ble Supreme Court in case Mohinder Singh Vs. Gulwant Singh and others reported as 1992(2) SCC, 213 has observed as follows:- “This Court as well as various High Courts in a catena of decisions have examined the gamut and significance of Section 202 of the Code and settled the principle of law, the Substance of which is as follows: “The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not, under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the Enquiry Officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry. Vide Vadilal Panchal V. Dattatraya Dulaji Ghadigaonkar, 1961 (1) SCR 1: AIR 1960 Supreme Court 1113 and Pramatha Nath Talukdar V. Saroj Ranjan, 1962 Supp. (2) SCR 297.” 9. The Additional Chief Judicial Magistrate has not only recorded the statement of the complainant but has also examined five witnesses in order to inquire into the matter and was of the view that a prima facie case to summon the accused to face a trial in the complaint is made out. The summoning order passed by Additional Chief Judicial Magistrate, Gurgaon, suffer from no illegality or infirmity on this score, so as to invoke the inherent powers of this Court to quash the complaint or the summoning order. Noncompliance of provisions of Section 202, could be a reason for directing the trial Court to pass a fresh order after complying with these provisions and the complainant cannot seek dismissal of complaint on this score. 10. This petition has no merits and is dismissed.