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Guriqbal Singh vs Piara Lal @ Piare Lal & Anr on 14 September, 2018

CRM-M-21701-2014 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Date of decision: 14.09.2018

1. CRM-M-21701-2014 (OM)

Dr. Guriqbal Singh
…Petitioner

Versus

Piara Lal @ Piare Lal and another
…Respondents

2. CRM-M-26215-2017 (OM)

Bhupinder Singh
…Petitioner

Versus

Piara Lal @ Piare Lal and another
…Respondents

CORAM: HON’BLE MR JUSTICE ARVIND SINGH SANGWAN

Present: Mr. Naveen Batra, Advocate
for the petitioner (in CRM-M-21701-2014).

Mr. Vipul Dharmani, Advocate
for the petitioner (in CRM-M-26215-2017).

Mr. Ramneek Vasudeva, Advocate
for respondent No.1 (in both cases).

Mr. Joginder Pal Ratra, DAG, Punjab.

******

ARVIND SINGH SANGWAN, J.

Prayer in both these petitions is for setting aside the order dated

10.03.2012 passed by the Additional Sessions Judge, vide which, while

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allowing the revision petition filed by respondent No.1-complainant, the

order dated 15.09.2011 passed by the trial Court, dismissing complaint, was

set aside and the case was remanded back to the trial Court for passing a

fresh order on the point whether the petitioners/accused can be summoned or

not as well as the subsequent summoning order dated 06.11.2013 passed by

the trial Court in aforesaid criminal complaint, in pursuance to the aforesaid

remand order as well as all the subsequent proceedings arising therefrom.

Brief facts of the case are that the complainant-respondent No.1

had three sons namely Dharam Chand, Varinder Kumar and Sham Lal.

Dharam Chand was got married with Mohinder Kaur, daughter of co-accused

Dharampal in the year 1995. After the death of aforesaid Dharam Chand on

16.09.1997, marriage between said Mohinder Kaur and Varinder Kumar was

solemnised on 21.01.2000 and out of this wedlock, no child was born,

however, from the previous wedlock of Mohinder Kaur with Dharam Chand,

one male child was born. Said Varinder Kumar had gone to M.P. to get the

job for ten months along with his wife Mohinder Kaur but when Varinder

Kumar returned to his village, he found that one female child was born to his

wife and had doubt in this regard. Mohinder Kaur got operated herself of

vasectomy for not born any child in future. Thereafter, relations between

Varinder Kumar and his family members as well as Mohinder Kaur and her

parents became strained. Varinder Kumar filed a petition under Section 10 of

the Hindu Marriage Act against his wife Mohinder Kaur. The parents of

Mohinder Kaur started extending threats to Varinder Kumar of dire

consequences as they had link with higher authorities. At the instance of

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Mohinder Kaur and her parents, the police of Police Station Nurpur Bedi had

illegally confined Varinder Kumar in the police station. Said Varinder Kumar

was a Mechanic and used to sell vegetables and his name was written in

Punjabi on his left arm and he was always keeping one note book with him

every time in which his address was mentioned. The petition filed by

Varinder Kumar was dismissed in default due to fear from the side of

accused persons.

On 15.12.2002, Varinder Kumar had left for his job on his cycle

in the morning and after doing his work of mechanic, he went to Village

Saini Majra, where the house of his relatives is situated. Then he returned to

his village on the same day at about 10.00 P.M. When he reached at Bus

Stand Nurpur Bedi, a quarrel took place between him and parents of

Mohinder Kaur who gave him severe beatings and thereafter, parents of

Mohinder Kaur and other accused persons took Varinder Kumar to Police

Station in the police vehicle. Consequently, all the accused persons had

murdered Varinder Kumar and thrown his dead body in Village Balewal. In

connivance with each other, the accused persons made a false report, false

post-morten examination report and on the same, they immediately cremated

him. The complainant enquired about his son Varinder Kumar from the

police of Police Station Nurpur Bedi on 16.12.2002, but the police did not

disclose anything. Again on 17.12.2002, the complainant along with other

persons went to the police station for lodging the complaint but the police

did not do so. The complainant had also given many applications to the

higher authorities regarding murder of his son Varinder Kumar by all the

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accused persons but no action has taken.

The trial Court, after recording the preliminary evidence of the

complainant, finding that no prima facie case is made out against the

petitioners/accused, dismissed the complaint vide order dated 15.09.2011.

Thereafter, the respondent-complainant preferred a revision petition before

the Court of Sessions and the Additional Sessions Judge, vide impugned

order dated 10.03.2012, set aside the aforesaid order of the Magistrate and

remanded the case back to pass a fresh order. The operative part of the order

dated 10.03.2012 is reproduced as under: –

“It is a settled law that at the stage of summoning the accused,

the Court is not to evaluate the evidence adduced by the

complainant on golden scales so as to reach at a conclusion

that whether the evidence led by the complainant is truthful and

is sufficient for convicting the accused. At the time of

summoning of accused, evidence led by the complainant is

unrebutted and same has to be taken as prima facie true. In

S.W. Palantikar and others Vs. State of Bihar and others 2002

(1) Criminal Court Cases 360 (SC), it was held by the Hon’ble

Supreme Court that “sufficient grounds means that a prima fcie

case is made out against the accused and not sufficient grounds

for the purpose of conviction.” Similarly in Gurdeep Kaur Vs.

Balbir Singh and others 2005 (3) Criminal Court Cases 222

(PH) our own Hon’ble High Court has laid down that “at the

time of summoning an accused, in a complaint case; Trial

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Magistrate is supposed to look into the allegations, as levelled

in the complaint or averred at the time when evidence is led.

Trial Magistrate has to be prima facie satisfied as to whether

there are sufficient grounds for proceeding against the accused

named in the complaint or not. It is not the duty of Trial

Magistrate to enter into detailed discussions on the merits or

demerits of the case”. From these authorities on the point

involved in the present petition, it can be held that the

reasonable test to be applied by the Magistrate is to see

whether reasonable grounds are made out to proceed further in

the matter and not whether the allegations in the complaint can

lead to conviction. However, learned Trial Court on its own

assumption have not summoned accused. It is therefore directed

that learned Trial Court shall re-examine the evidence

available on record in view of the settled legal position after

giving opportunity to the complainant to lead any further

evidence in support of his case and thereafter to proceed further

as per law. With these observations, the revision petition filed

by the complainant stands allowed and impugned order is set

aside. The complainant is directed to appear before the learned

Trial Magistrate on 31.3.2011.”

After the case was remanded back to the trial Court, the trial

Court subsequently vide impugned order dated 06.11.2013, finding a prima

facie case under Sections 302 IPC read with Sections 120-B IPC summoned

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accused No.1 to 8 and further summoned petitioner Dr. Guriqbal Singh

(accused No.9) under Sections 201, 217, 218 IPC. The petitioner in CRM-M-

21701-2014 Dr. Guriqbal Singh as well as petitioner Bhupinder Singh in

CRM-M-26215-2017 have challenged the aforesaid impugned orders

primarily on the ground that before passing of remand order, the revisional

Court has not afforded an opportunity of hearing to them.

Learned counsel for the petitioners have relied upon

Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai

Mohanbhai Patel and others, 2012 (4) RCR (Crl.) 689, in which question

for consideration before the Hon’ble Supreme Court was whether the suspect

is entitled to be heard by the revisional Court in a revision petition preferred

by the complainant, challenging the order of Magistrate, dismissing the

complaint under Section 203 Cr.P.C. The Hon’ble Supreme Court, while

deciding the aforesaid issue, has held as under: –

“In a case where the complaint has been dismissed by the

Magistrate under Section 203 of the Code either at the stage

of Section 200 itself or on completion of inquiry by the

Magistrate under Section 202 or on receipt of the report from

the police or from any person to whom the direction was issued

by the Magistrate to investigate into the allegations in the

complaint, the effect of such dismissal is termination of

complaint proceedings. On a plain reading of sub-section (2)

of Section 401, it cannot be said that the person against whom

the allegations of having committed offence have been made in

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the complaint and the complaint has been dismissed by the

Magistrate under Section 203, has no right to be heard because

no process has been issued. The dismissal of complaint by the

Magistrate under Section 203 – although it is at preliminary

stage – nevertheless results in termination of proceedings in a

complaint against the persons who are alleged to have

committed crime. Once a challenge is laid to such order at the

instance of the complainant in a revision petition before the

High Court or Sessions Judge, by virtue of Section 401(2) of the

Code, the suspects get right of hearing before revisional court

although such order was passed without their participation.

The right given to “accused” or “the other person”

under Section 401(2) of being heard before the revisional court

to defend an order which operates in his favour should not be

confused with the proceedings before a Magistrate

under Sections 200, 202, 203 and 204. In the revision petition

before the High Court or the Sessions Judge at the instance of

complainant challenging the order of dismissal of complaint,

one of the things that could happen is reversal of the order of

the Magistrate and revival of the complaint. It is in this view of

the matter that the accused or other person cannot be deprived

of hearing on the face of express provision contained in Section

401(2) of the Code. The stage is not important whether it is pre-

process stage or post process stage.

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xxx xxx xxx

We are in complete agreement with the view expressed by

this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.

N. Santhanam. We hold, as it must be, that in a revision petition

preferred by complainant before the High Court or the Sessions

Judge challenging an order of the Magistrate dismissing the

complaint under Section 203 of the Code at the stage

under Section 200 or after following the process contemplated

under Section 202 of the Code, the accused or a person who is

suspected to have committed crime is entitled to hearing by the

revisional court. In other words, where complaint has been

dismissed by the Magistrate under Section 203 of the Code,

upon challenge to the legality of the said order being laid by the

complainant in a revision petition before the High Court or the

Sessions Judge, the persons who are arraigned as accused in

the complaint have a right to be heard in such revision petition.

This is a plain requirement of Section 401(2) of the Code. If the

revisional court overturns the order of the Magistrate

dismissing the complaint and the complaint is restored to the

file of the Magistrate and it is sent back for fresh consideration,

the persons who are alleged in the complaint to have committed

crime have, however, no right to participate in the proceedings

nor they are entitled to any hearing of any sort whatsoever by

the Magistrate until the consideration of the matter by the

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Magistrate for issuance of process. We answer the question

accordingly. The judgments of the High Courts to the contrary

are overruled.”

Learned counsel for the petitioners have thus submitted that

since on dismissal of the complaint, a right has accrued in favour of the

petitioners, therefore, before passing any order, adverse to the right of the

petitioners, Court of Sessions was required to afford them an opportunity of

hearing as per Section 401 (2) Cr.P.C.

In reply, learned counsel for respondent No.1 has relied upon

Mohit @ Sonu and another Vs. State of U.P. and another, 2013 (3) RCR

(Crl.) 673, in which the aforesaid judgment in Manharibhai Muljibhai

Kakadia’s case (supra) was relied upon and the Hon’ble Supreme Court has

held as under: –

“Indisputably, a valuable right accrued to the appellants by

reason of the order passed by the Sessions Court refusing to

issue summons on the ground that no prima facie case has been

made out on the basis of evidence brought on record. As

discussed hereinabove, when the Sessions Court order has been

challenged, then it was incumbent upon the revisional court to

give notice and opportunity of hearing as contemplated under

sub-section (2) of Section 401 of Cr.P.C. In our considered

opinion, there is no reason why the same principle should not

be applied in a case where such orders are challenged in the

High Court under Section 482 of Cr.P.C.”

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Learned counsel for respondent No.1-complainant has

submitted that in Mohit @ Sonu’s case (supra), the Hon’ble Supreme Court,

while dealing with the procedure for summoning an accused under Section

319 Cr.P.C., has held that it is incumbent upon the revisional Court to give an

opportunity of hearing as contemplated under Section 401 (2) Cr.P.C., while

deciding the revision petition against an order passed under Section 319

Cr.P.C.

After hearing learned counsel for the parties, I find merit in both

these petitions.

The undisputed facts of the case are that the revisional Court,

while passing the impugned order dated 10.03.2012, has not issued any

notice to the accused persons, despite the fact that they were arrayed as

accused No.2 to 10 along with respondent No.1; State of Punjab. Much less

to say, even no notice was issued to the State of Punjab and the revision

petition was decided only after hearing the version of the complainant. It is

also undisputed that subsequent to passing of the remand order, setting aside

the order of dismissal of complaint passed by the Magistrate dated

15.09.2011, the trial Court has subsequently summoned the accused persons

vide impugned order dated 06.11.2013 and therefore, the order dated

10.03.2012 passed by the revisional Court, without affording an opportunity

of hearing, which was the forming of base for the trial Court to pass a fresh

order, thereby summoning petitioners, has adversely affected the rights of the

petitioners, who have a right to be heard as per provisions of Section 401 (2)

Cr.P.C. in view of judgment of the Hon’ble Supreme Court inManharibhai

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Muljibhai Kakadia’s case (supra).

Accordingly, both these petitions are allowed. The order dated

10.03.2012 passed by the Additional Sessions Judge and dated 06.11.2013

passed by the trial Court are set aside and the case is remanded back to the

Court of Additional Sessions Judge, Ropar for deciding it afresh after

affording an opportunity of hearing to the petitioners.

Both the petitioners are granted liberty to raise all the

pleas/defences available to them.

Parties through their counsel are directed to appear before the

ld. Sessions Judge, Ropar on 24.09.2018.

As CRM-M-21701-2014 is pending since 2014 and further

proceedings qua petitioner Guriqbal Singh were stayed, considering the fact

that it is an old case, the revisional Court is directed to dispose of the matter

preferably within a period of three months from the date of receipt of

certified copy of this order.

Nothing observed in this order shall have any bearing on merits

of the case and the revision petition will be decided on merits.

Since both these petitions are disposed of, liberty is granted to

petitioner Bhupinder Singh to move an appropriate application before the

revisional Court or trial Court for seeking permission to travel abroad.

[ ARVIND SINGH SANGWAN ]
14.09.2018 JUDGE
vishnu

Whether speaking/reasoned Yes/No
Whether reportable: Yes/No

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