Chand Ahuja vs Gautam Hada

S. S. Grewal, J.

This revision petition is directed against the order of Chief Judicial Magistrate, Bhatinda, dated 1131989, whereby charge under Sections 385 and 506 of the Indian Penal Code was directed to be framed against the present petitioner and his other two coaccused namely Lalit Ahuja and ASI Sukhminder Singh.

In brief, Chand Ahuja the present petitioner who was partner of M/s Mulkh Raj Madan Mohan, Commission Agents, Bhatinda (hereinafter referred to as the Firm) had lodged First Information Report with the police under sections 420 and 406 IPC against the present respondents and others who were Directors and Executives of M/s Rama Fibres Ltd., New Delhi (hereinafter referred to as the Company). During the investigation of that case, the present petitioner and his brother Lalit Ahuja and two other persons and ASI Sukhminder Singh went to the office of Company and arrested Anil Hada and R.K. Gupta and hunted for other coaccused on the plea that warrants of arrest had been issued against all of them. The present petitioner demanded Rs. 5.35 lacs in cash for settling the case and threatened that in the alternative the police would take Anil Hada and R. K. Gupta to Punjab. The complainant then arranged a draft of Rs. 3.5 lacs from the current account of his own firm namely M/s Hada Leasing and Industries Ltd. in favour of the aforesaid firm. The police got the remand of Shri Anil Hada and R. K. Gupta to be produced at Bhatinda. On 10121985 the accused petitioner and Lalit Ahuja and some others approached the complainant at 10.00 A. M. when they were standing outside the Kotwali Bhatinda and threatened them to deliver the draft, otherwise Anil Hada and R. K. Gupta would not be bailed out; would be remanded to police custody and paraded through the main bazar in handcuffs. The complainant refused to deliver the draft. ASI Sukhminder Singh then took Anil Hada and R. K. Gupta on foot from Police Station Kotwali Bhatinda to the Courts at Bhatinda which caused further humiliation to the arrested persons. It was also alleged that in the Court ASI Sukhminder Singh threw open challenge that in case draft was not handed over Anil Hada and R. K. Gupta would be remanded to police custody for 10 days and in order to avoid harassment to them the present complainant handed over a draft of Rs. 3.5. lacs to the present petitioner.

Learned counsel for the parties were heard.

On behalf of the accusedpetitioner it was mainly submitted that the learned Chief Judicial Magistrate, in his impugned order, has not specifically applied his mind or referred to the evidence produced by the complainant, on the basis of which he came to the conclusion that a prima facie case under section 385/506 IPC appeared to be made out against the accused.

There appears to be substance in the arguments advanced by the learned counsel for the petitioner. Perusal of the impugned order dated 1131989, passed by the learned Chief Judicial Magistrate, does indicate that the learned Magistrate has taken pains to go into the history on the criminal litigation pending between the parties, including the complaint filed by the present petitioner against the present respondents on the basis of which a case FIR No. 262 under sections 406 and 420 IPC was registered against the said respondents and others at the instance of the present petitioner. However, the fact remains that the learned Chief Judicial Magistrate has neither referred to the evidence produced by the complainant on the basis of which the trial Court came to the conclusion that a prima facie case under sections 385/506 IPC was made out against present petitioner and his other coaccused. This aspect of the case supports the contention raised by the learned counsel for the petitioner that the learned trial Court has not applied its mind on this aspect. It is true that at the time of framing of the charge the trial Court is not expected to weigh the evidence on the file meticulously in order to come to the conclusion whether a prima facie case for framing of charge under section 385/506 IPC has been made out against the petitioner and his other coaccused. It would be all the more necessary to indicate that at that stage the trial court had properly applied its mind in coming to the conclusion whether a prima facie case under section 385/506 IPC against the present petitioner and his other coaccused, has been made out or not. Such conclusion can only be reached by referring to the relevant material brought out in the evidence produced by the complainant, so as to constitute the essential ingredients of offence, in respect of which the charge is to be framed. The learned trial court has order in law in not making any reference in the impugned order the same cannot be legally sustained and is hereby set aside. The trial Court is directed to reconsider this aspect of the case in the light of the observations made above, then pass a speaking order, and, proceed according to law and dispose of this old case expeditiously. This petition is allowed accordingly to the extent indicated above.

The parties through their counsel are directed to appear in the trial Court 2041990.