Gurmukh Singh vs Jaswant Singh

J.B. Garg, J.

Gurmukh Singh, his wife Manjit Kaur, two daughters Rani alias Satpal Kaur and Karamjit Kaur and a son Gogi, in all five petitioners have challenged a summoning order dated 30.4.1991 passed by Shri Naginderjit Singh, Judicial Magistrate, I Class, Ludhiana on a complaint instituted by Jaswant Singh, the brother, for offences under Sections 324/326/452/148/149 of the Indian Penal Code.

The allegations of the complainant are that the dispute relates to possession of residential house and Gurmukh Singh, the brother, allegedly caused injury with a Gandasi and it was grievous as well.

On behalf of the present petitioners, it has been alleged that a similar complaint filed by Jaswant Singh a brother of Gurmukh Singh relating to the same occurrence was dismissed by Judicial Magistrate I Class, Ludhiana on 5.7.1990 and that too after closing the precharge evidence of the complainant and second complaint regarding the same occurrence was not maintainable.

The learned counsel for Jaswant Singh respondent, who is the complainant, it has been pointed out that he is employed as a Driver in CRPF and he could not attend the Court on 5.7.90 because there was misunderstanding regarding the date fixed and his duty is of such a nature that he could not immediately file the second complaint and it could be filed only on 29.8.1990.

The learned counsel for the petitioners has referred to Dr. Krishan Kumar v. Sunil, 1993(2) Recent Criminal Reports 8 : 1993(1) All India Criminal Law Reporter 759 where the second complaint for an offence under Sections 406 and 498A read with Section 506 of the Indian Penal Code was dismissed and the summoning order and all subsequent proceedings were quashed. In the aforesaid case the complainant kept it concealed from the Court that his first complaint was dismissed for default whereas in the case now in hand the complainant has specifically mentioned in the second complaint the circumstances in which he could not appear in the Court on the date fixed in the trial Court.

Since the offences mentioned in the complaint were cognizable, in the circumstances of the case, it is held that the complaint is maintainable. However, the impugned order is set aside inasmuch as the trial Court did not record any preliminary evidence after entertaining it. It is hereby ordered that the trial Court shall first record the preliminary evidence and then make up its mind whether it is a fit case for summoning the accused and if so whom. The complainant shall appear in the trial Court.