Kuldip Singh vs Gurmail Singh and Others

Kanwaljit Singh Ahluwalia, J.—Present petition has been filed by Kuldip Singh. He is aggrieved that in the complaint filed by him, the trial

Court had only issued summons against Kamail Singh and Bhag Singh.

Aggrieved against the same, petitioner had filed a revision petition. The same was dismissed by the Court of Additional Sessions Judge, Patiala

on 26th February, 2007. Petitioner filed Criminal Misc. No. 15853-M of 2007 in this Court and assailed the order of summoning and the order

passed by the revisional Court. In the petition so filed, the matter was remanded back to the Court of Additional Sessions Judge, Patiala to decide

the revision petition afresh on merits. Revision petition was decided on 8th September, 2008. The revisional Court, along with two accused

already summoned, also ordered summoning of accused Karnail Singh son of Kartar Singh and Sawinder Singh son of Uttam Singh.

Petitioner is aggrieved that the respondent No. l to 6, who were arrayed as accused No. 2, 3 and 6 to 9, have not been summoned by the trial

Court and the revisional Court has also not accepted his prayer of summoning respondent No. 1 to 6.

The case of the petitioner, in nutshell, is that he had filed a civil suit for recovery of the amount. He succeeded in the suit. Consequently, the

property was ordered to be attached and after the orders of attachment were pronounced, the accused had sold the property, hence offence u/s

420 IPC is made out.

Case of the petitioner is that he had earlier lodged an FIR at Police Station Sadar, Patiala on 8th December, 2000 u/s 420, 120B IPC. The

police had filed cancellation report. Therefore, petitioner was compelled to file the complaint.

An important question has arisen for consideration of this Court as to whether, where a property has been attached by the Court complying with

the due process of law, can accused be permitted to sell the property and go scot-free.

Mr. Parminder Singh appearing for the petitioner has stated that in the present case, offence will be made out u/s 206 IPC. If it is accepted that

offence is made out u/s 206 IPC, then there is a bar u/s 195 Cr.P.C. for taking cognizance of the offence. Since the property was attached by the

Court, it is that Court only, which can take any action. Therefore, petitioner has to file an application u/s 340 Cr.P.C.

Counsel for the petitioner has submitted that he has been agitating his grievance in the wrong forum, therefore, the FIR lodged and the

cancellation report submitted and also the complaint filed are to be treated as an application by the concerned Court for initiating proceedings u/s

340 Cr.P.C.

Counsel for the respondents has submitted that this has not been brought to the notice of this Court that earlier a contempt petition was filed by

the petitioner. Therefore, the present petition is not maintainable. Commission of a penal offence and contempt of Court are entirely in different

domain. Initiation of proceedings under the provisions of Contempt of Courts will not oust the petitioner from taking the offenders to task under the

penal provisions.

It has further been submitted by counsel for the respondents that order of attachment was not noticed in the revenue record and in the

Jamabandi obtained by the respondents. Therefore, respondents were not aware of any attachment order.

To controvert this, Mr. Parminder Singh has submitted that the respondents had the knowledge of the attachment of the property.

Whether respondents were aware regarding the order of attachment or not, is a question of fact, which can not be examined in a petition u/s

482 Cr.P.C. Consequently, taking the larger interest in view, it is ordered that the complaint filed and the cancellation report submitted in the FIR,

shall be treated as an application u/s 340 Cr.P.C. They shall be placed before the Court, which had ordered attachment, for consideration. The

Court shall hold an inquiry as envisaged u/s 340 Cr.P.C. and if the Court comes to the conclusion that any offence has been committed, which falls

within any of the provisions, which have been specified u/s 195 Cr. P.C. the Court shall proceed in accordance with provisions of law.

Accordingly, summoning order and the order passed by the revisional Court are set aside. In case concerned Court comes to the conclusion

that any other offence is made out, which has not been specified u/s 195 Cr. P.C. the Court may take cognizance of the offence. However, as a

matter of abundant caution, it is also ordered that in case Court comes to the conclusion that no offence is made out, then also the Court may

proceed in accordance with provisions of law. Parties shall appear before the concerned Court on 15th May, 2009.

With these observations, present petition is disposed off.

Order accordingly.