Criminal Misc. petition seeking quashing of a private complaint and summoning order. The single judge dismissed the petition, holding that prima facie evidence exists and the grounds for quashing under Ch.Bhajan Lal are not met.
The instant petition has been dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRM No. M-8880 of 2008 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Misc. No. M-8880 of 2008 Date of Decision:- 17.5.2012 Ghanshyam & Ors. ...Petitioners Versus
Balwant Singh & Anr. ...Respondents
CORAM:HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:Mr.N.S.Shekhawat, Advocate for the petitioners.
Mr.Gaurav Jain, Advocate for Mr.A.K.Jain, Advocate for respondent No.1.
Mr.Kartar Singh, DAG Haryana for respondent No.2.
Mehinder Singh Sullar, J . (Oral)
What cannot possibly be disputed here is that the Hon'ble Apex Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R. (Criminal) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:-
CRM No. M-8880 of 2008 -2-
(vii)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:-
“16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.”
3 . Above being the legal position, now the short and significant question, though important that, arises for determination in the instant petition is, as to whether the impugned complaint (Annexure P1) filed by complainantrespondent No.1 Balwant Singh son of Ishwar Singh (for brevity “the complainant”) and the summoning order dated 3.1.2007 (Annexure P2), by means of which, the petitioners-accused were ordered to be summoned as accused to face
CRM No. M-8880 of 2008 -3-
the trial under Sections 323, 325, 452 and 506 read with Section 34 IPC by the JMIC, deserve to be quashed at this preliminary stage or not?
CRM No. M-8880 of 2008 -4-
Charan Singh son of Parbhati and Mohar Singh, who saved them from the clutches of the accused. While leaving, all the accused again threatened to kill them.
CRM No. M-8880 of 2008 -5-
the complaint at this initial stage, as (contrary) urged on behalf of the accused.
“ 11. 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
CRM No. M-8880 of 2008 -6-
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." (emphasis supplied)
12. The use of the word shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused.”
have been falsely implicated by the complainant due to enmity as the complainant belongs to opposite group of the Sarpanch, is again not only devoid of merit but misconceived as well at this stage. As to whether the accused have been falsely implicated, all other contentions relatable to alibi, motive and previous enmity, as now sought to be urged on their behalf and letter (Annexure P5) issued by SDO
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(Civil) to XEN (Public Health), notice (Annexure P6), application (Annexure P7) and writing (Annexure P8) are genuine or not and what would be their effects, would be the moot points to be decided during the course of trial by the trial Court. If all such points, relatable to the defence of the accused, which require determination by the trial Court, are to be decided by this Court in the garb of petition under section 482 Cr.PC, then the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as contemplated under the Code of Criminal Procedure, which is not legally permissible.
17.5.2012 (Mehinder Singh Sullar) AS Judge
Whether to be referred to reporter? Yes /No
3 issues framed by the court
Whether the impugned complaint and summoning order deserve to be quashed at this preliminary stage under Section 482 Cr.PC.
Whether the allegations constitute sufficient ground for proceeding against the accused.
Whether the lack of evidence or enmity justifies quashing the criminal proceedings.
Colour shows how this judgement treated each authority
State of Haryana and others v. Ch.Bhajan Lal and othersExplained¶10
State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604 · Who else cites this
Som Mittal v. Government of KarnatakaExplained¶10
Som Mittal v. Government of Karnataka 2008(2) R.C.R. (Criminal) 92
Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr.Explained¶19
Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal) 183
Shivjee Singh v. Nagendra Tiwary & Ors.Explained¶39
Shivjee Singh v. Nagendra Tiwary & Ors. 2010(7) SCC 578 · Who else cites this
Mohinder Singh v. Gulwant SinghExplained¶39
Mohinder Singh v. Gulwant Singh 1992(2) RCR(Criminal) 134
2 provisions across 2 enactments
Ghanshyam & Ors.
Balwant Singh & Anr.
Mehinder Singh Sullar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
