Sh. Santa Singh vs Kanwar Charanjit Singh

Kuldip Singh, Judge

This petition u/s 482 of the Code of Criminal Procedure (for short ''Code'') has been filed for setting aside, quashing summoning order dated 31.05.2011 passed by learned Judicial Magistrate Ist Class, Court No. 1, Amb, in Criminal Complaint No. 84-1/2009 and also for quashing Criminal Complaint No. 84-1/2009. It has been stated in the petition that petitioner is devotee and managing affairs of Gurdwara Manji Sahib, Mairi, as President. There is another Gurdwara Dera Baba Barbhag Singh Ji controlled and managed by respondent adjacent to Gurdwara Manji Sahib, Mairi.

On Khasra No. 3417 measuring 0-00-20 hectares at Mairi, in fact, there is a ''gairmumkin sarak'' on the spot, but in the revenue record entry has been wrongly recorded as ''gairmumkin abadi'' of Dera Baba Barbhag Singh Ji. The entry is wrong and factually incorrect.

The petitioner as President of Gurdwara Manji Sahib being most affected with the revenue entry on Khasra No. 3417, filed an application before the Assistant Collector Ist Grade for correction of nature/classification of land over Khasra No. 3417. The Assistant Collector Ist Grade passed an order on 03.11.2006 of correction to ''gairmumkin sarak'' instead of ''gairmumkin abadi''.

The respondent and others filed an appeal against the order dated 03.11.2006 before Collector, Sub Division, Amb and on 06.01.2010 Collector, Sub Division, Amb, affirmed the order dated 03.11.2006. The complainant has not whispered anything regarding the correction of the entry made by Assistant Collector Ist Grade on 03.11.2006 and affirmed by Sub Divisional Collector, on 06.01.2010.

On 02.05.2008, respondent obstructed petitioner from using the aforesaid land illegally by putting a concrete flooring over the land in question, which was resisted by the petitioner. The matter was reported to the police by petitioner (sic respondent) and FIR No. 91/2008 under Sections 447, 504 and 34 IPC was registered. The said case was transferred to Panchayat being competent forum, but respondent did not appear before the Panchayat on the plea that matter is pending before the Court. The Gram Panchayat, Mairi, has passed the order dated 21.06.2009.

The respondent has filed a false complaint u/s 190 of the Code on 27.03.2009 alleging that on 02.05.2008 at about 11.00 p.m., when he was in the process of laying concrete on the spot, the petitioner objected and respondent was humiliated. It has been alleged that petitioner has committed offence under Sections 451, 452, 355 IPC.

The complaint has been filed on 27.03.2009, there is delay of 11 months. There is no explanation in the complaint why it was not filed promptly. Panchayat Mairi had summoned respondent in January and February, 2009.The complaint filed by respondent is not only false, but is an abuse of process of law. The competent revenue authorities had made correction with regard to nature/classification of the land. This has been concealed in the complaint.

The petitioner has committed no offence. There was civil dispute with regard to land over which the respondent alleged commission of offence. The respondent lodged FIR No. 91/2008 with regard to incident which took place on 02.05.2008. The order dated 31.05.2011 summoning petitioner under Sections 447, 355 and 506 IPC and the complaint is liable to be quashed.

The complaint is malafide. The respondent has not stated in the complaint regarding correction proceedings even though he himself filed the appeal against the order of the Assistant Collector Ist Grade. The offence under Sections 447, 355 IPC is not made out. The petitioner has prayed for allowing the petition.

Heard learned counsel for the parties. The learned counsel for the petitioner has submitted that complaint is barred by limitation. The respondent has not challenged the report filed by police in pursuance of FIR No. 91/2008 dated 03.05.2008, registered at Police Station, Amb, under Sections 447, 504, 34 IPC. The complaint is barred. The complaint is not maintainable in view of order dated 06.01.2010 of Sub Divisional Collector, Amb, and order dated 21.06.2009 of Gram Panchayat, Mairi. The learned counsel for the petitioner has relied Sudhir Kumar and others Versus Kirti Kumar Bali and others 1992 (2) S.L.C. 372, Vir Prakash Sharma Versus Anil Kumar Agarwal and another (2007) 7 SCC 373, Inder Mohan Goswami and another Versus State of Uttaranchal and others (2007) 12 SCC 1. The learned counsel for the respondent has supported the impugned order, he has relied Municipal Corporation of Delhi Vs. Purshotam Dass Jhunjunwala and Others, State of A.P. Vs. Gourishetty Mahesh and Others,

On behalf of the petitioner, plea of limitation has been taken. The petitioner has been summoned by the trial Court under Sections 447, 355, 506 IPC. The punishment u/s 447 IPC is three months with fine or which may extend to 1500/- or with both. The punishment u/s 355 IPC is two years or with fine or with both. The punishment u/s 506 IPC Part-I is two years or with fine or with both and under Part-II it is seven years or with fine or with both. In the complaint, the allegation is that petitioner has hurled threats to the life and limb of the complainant. The Part-II of Section 506 IPC deals with threat to cause death or grievous hurt. Therefore, it cannot be said that in the complaint there is no allegation covering Part-II of Section 506 IPC which is punishable for seven years punishment.

The Section 468(1)(b) provides limitation of one year for taking cognizance if offence is punishable with imprisonment for a term not exceeding one year and under Clause ( c) sub-section 1 of Section 468 the limitation for taking cognizance is three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The alleged occurrence took place on 02.05.2008. It has been stated in the petition that complaint has been filed on 27.03.2009 after 11 months. The process has been issued against the petitioner for offence under Sections 447, 355 and 506 IPC. The punishment u/s 355 IPC is two years and u/s 506 Part-II is seven years. Therefore, complaint is within limitation.

It has been submitted that respondent has not challenged police report in pursuance of FIR No. 91/2008 dated 03.05.2008 which was lodged by respondent himself. The complaint is, therefore, barred and not maintainable. The plea of double jeopardy has also been taken by the petitioner. The question of double jeopardy is not at all applicable inasmuch as it is not the case of the petitioner that proceeding on the basis of FIR No. 91/2008 has been finally decided on merits.

It has been submitted on behalf of the petitioner that in view of order dated 06.01.2010 of Sub Divisional Collector, Amb and order dated 03.11.2006 of the Assistant Collector Ist Grade correction of revenue entry regarding the land in dispute substituting the entry of ''gairmumkin abadi'' to ''gairmumkin sarak'', the complaint is not maintainable. The dispute is of civil nature. In the complaint, the complainant has alleged commission of various offences. The complainant examined himself as CW-1. The learned Magistrate has considered the complaint and preliminary evidence and thereafter issued process to the petitioner. The orders passed by revenue officers will be considered at the appropriate stage of the case. In Md. Ibrahim and Others Vs. State of Bihar and Another, , the Supreme Court has held that criminal Courts should ensure that the proceedings before it are not used for settling scores or to pressure parties to settle civil disputes. But, at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.

There is no dispute to the proposition of law laid down in 1992 (2) S.L.C. 372, (2007) 7 SCC 373, (2007) 12 SCC 1 that in an appropriate case u/s 482 Cr.P.C., the summoning order and complaint can be quashed. In Municipal Corporation of Delhi(supra), it has been held that for the purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further. In State of Andhra Pradesh(supra), it has been held that Section 482 is an exception and not the rule. The High Court would ordinarily not embark an enquiry as to whether the evidence is reliable or allegations on their face value do not prima facie constitute an offence. The inherent power should not be exercised to stifle a legitimate prosecution.

In Trisuns Chemical Industry Vs. Rajesh Agarwal and others, , it has been held that time and again the Supreme Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. The Supreme Court has noticed R.S. Raghunath Vs. State of Karnataka and another, , Rajesh Bajaj Vs. State NCT of Delhi and Others,

The Section 210 of the Code provides the procedure to be followed when there is a complaint case and police case in respect of the same offence. It has emerged from the record that FIR No. 91/2008 was registered on 03.05.2008 at Police Station, Amb, under Sections 447, 504, 34 IPC. The respondent in the complaint has alleged that Investigating Officer in connivance with accused has prepared final report under Sections 447, 504 IPC omitting other serious offences. The petitioner has placed on record order dated 21.06.2009 of the Panchayat. It came to the notice of the Panchayat that the case is pending before the Court.

The Panchayat made no attempt what matter was pending in the Court. The Panchayat hurriedly closed the case. The complaint was filed by respondent on 27.03.2009, therefore, the order dated 21.06.2009 of Gram Panchayat, Mairi, is not sustainable and is set aside. I have gone through the complaint and preliminary evidence. It cannot be said that on the basis of complaint and preliminary evidence no case is made out for summoning petitioner under Sections 447, 355 and 506 IPC, therefore, no fault can be found with summoning order dated 31.05.2011.

In Wattan Singh Versus Joginder Singh and others 2005 (1) SLC 82, Section 210 of the Code has been noticed. In Wattan Singh (supra), it has been held:-

7.It is clear on a bare reading of the aforesaid provisions that when a complaint is filed and it appears to the Magistrate during the inquiry or trial of such complaint that the police has also investigated the same offence, the Magistrate has to stay the complaint case and call for a report from the police officer in the matter. In case there is a report by the police, both the complaint and the case arising out of the police report, are required to be tried together. Once the Magistrate decides to try the complaint and the police case together, he has to try them as a case instituted on a police report.

Therefore, the case presented before the Panchayat in FIR No. 91 dated 03.05.2008 and the present complaint are required to be tried together as a case instituted on a police report. In view of above, there is no merit in the petition and the same is dismissed. The learned trial Court shall proceed with the complaint along with case submitted by the police in FIR No. 91/2008 dated 03.05.2008 to the Panchayat after calling the record from the Panchayat in accordance with law. The parties through counsel are directed to appear before the trial Court on 16.08.2012. The record be sent back immediately.