Partly allowed

Ajay Ahlawat & Ors. v. Rajesh Tomar & Anr.

Punjab & Haryana HC22 May 2012CRR/902/2011

Case brief

AI extract

What is this about?

The High Court held that a revisional Court lacks jurisdiction to direct a trial Magistrate to summon accused for specific offences without the Magistrate applying its independent mind. The High Court modified the revisional order and set aside the summoning order.

What did the court decide?

The impugned summoning order (Annexure P2) was set aside and the impugned revisional order (Annexure P1) was modified.

Ajay Ahlawat & Ors. Vs Rajesh Tomar… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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Criminal Revision No.902 of 2011 -1-

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CRR No.902 of 2011

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Date of Decision:-22.5.2012

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Ajay Ahlawat & Ors. …Petitioners Vs.

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Rajesh Tomar & Anr. …Respondents

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CORAM: HON’BLE MR.JUSTICE MEHINDER SINGH SULLAR

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Present:Mr.R.S.Sihota, Senior Advocate with Mr.B.R.Rana, Advocate for the petitioners.

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Mr.R.S.Rai, Senior Advocate with Mr.Gautam Dutt, Advocate for respondent No.1.

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Mr.Kartar Singh, D.A.G. Haryana for respondent No.2.

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Mehinder Singh Sullar , J. (Oral)

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The conspectus of the relevant facts and material, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that, complainant Rajesh Tomar respondent No.1 (for brevity “the complainant”) filed a private criminal complaint (Annexure P4) against Ajay Ahlawat and others petitioners-accused for the commission of offences punishable under Sections 148, 149, 307, 323, 452, 506, 34 and 120-B IPC. The Judicial Magistrate 1^st Class dismissed the complaint without summoning the accused, vide order dated 8.1.2010 (Annexure P7).

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Aggrieved by the order (Annexure P7), the revision petition (Annexure P8) filed by the complainant was accepted and the order of the trial Court was set aside by the revisional Court, by virtue of impugned order dated 22.1.2011 (Annexure P1). Thereafter, the Court of CJM, without applying its mind, summoned the accused, in view of the order of the revisional Court, to face the

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Criminal Revision No.902 of 2011 -2-

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trial under Sections 148, 452 and 506 read with Section 149 IPC, by way of impugned summoning order dated 29.1.2011 (Annexure P2).

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The petitioners-accused did not feel satisfied with the impugned orders (Annexures P1 & P2) and preferred the present petition, invoking the provisions of Sections 397 and 401 Cr.PC.

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After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this context.

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As is evident from the record, that the complaint (Annexure P4) filed by the complainant was dismissed by the JMIC, by means of order (Annexure P7). The revision petition filed by him was accepted by the revisional Court, by virtue of impugned order (Annexure P1), the operative part of which is (para 10) as under:-

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'In view of my above discussion the revision is accepted and impugned order of the trial court is set aside. The case is remanded to the trial Court with the direction to summon the accused in accordance with the observations made by this court. File along with the copy of judgment be sent to the trial court for 29.1.2011 and complainant is directed to appear in the trial court on the date fixed.”

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Sequelly, in pursuance thereof, the CJM, without applying its mind, summoned the petitioners-accused to face the trial, through the medium of impugned order (Annexure P2), which, in substance, is as under:-

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“Since finding has been given by the learned Appellate Court, this Court is also of the considered view that the material on record is sufficient to summon the accused to face trial under Sections 148, 452 & 506 read with Section 149 I.P.C. Now, the accused be summoned to face trial under Sections 148, 452 &506 read with Section 149 IPC on filing of PF etc. .for 28.5.2011.”

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That means, the revisional Court has specifically directed the trial Court to

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summon the accused for the pointed offences.

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Criminal Revision No.902 of 2011 -3-

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Above being the position on record, now the short and significant

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question, though important that, arises for determination in this petition is, as to whether the revisional Court can straightway direct the Magistrate to summon the petitioners-accused for the specific offences and that in turn, the Magistrate can legally summon them without application of its independent judicious mind ?

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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 amply clear that Sections 397 to 401 Cr.PC regulate the revisional powers of the revisional Court. Section 398 postulates that “on examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub-section (4) of section 204 or into the case of any person accused of an offence who has been discharged.”

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A conjoint and meaningful reading of these provisions would reveal that the revisional Court can only direct further inquiry into the complaint, which has been dismissed under sections 203 or 204 Cr.PC, as the case may be, but it did not have the jurisdiction to straightway direct the trial Court to summon the accused to face the trial for specific offences. Therefore, to my mind, the revisional Court has slipped into a deep legal error and the impugned order (Annexure P1) deserves to be modified to that extent in this regard. Resultantly, the impugned summoning order (Annexure P2), solely based on the directions of revisional Court, is liable to be quashed as well.

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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

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Criminal Revision No.902 of 2011 -4-

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trial of the complaint case, the instant revision petition is partly accepted and impugned summoning order (Annexure P2) is hereby set aside. Consequently, the impugned revisional order (Annexure P1) is modified to the extent and in the manner indicated here-in-above. The matter is remitted back to the Court of CJM, Palwal to decide the complaint afresh, without being influenced by the observations contained in the impugned revisional order (Annexure P1) and in accordance with law.

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The complainant through his counsel is directed to appear before the trial Court on 11.6.2012 for further proceedings.

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(Mehinder Singh Sullar) Judge

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22.5.2012 AS

Ajay Ahlawat & Ors. v. Rajesh Tomar & Anr.

Case brief

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Ajay Ahlawat & Ors. v. Rajesh Tomar & Anr.

Case brief

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