Mandir, Bank Colony, Haibowal, Ludhiana v. State of Punjab

Judgment

2. Arun Khurmi, Advocate, son of Roshan Lal, r/o 406, Street No. 9, Upkar Nagar, Civil Lines, Ludhiana. State of Punjab. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER

Present: Mr. K.S. Dhanora, Advocate, for the petitioner. Mr. Jitender Singh Dadwal, Advocate, for respondent No. 1. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 2 – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Criminal Complaint, dated 13.02.09, under Sections 120-B, 379, 427, 457 and 506 read with Section 34 IPC (Annexure P1), the summoning order dated 24.03.09 (Annexure P2), and all the consequential proceedings, arising out of the same, has been filed by the petitioner.

2. The facts, in brief, are that, the complainant, is a practicing Criminal Misc. No. M-14265 of 2009 2 lawyer and a member of District Bar Association, Ludhiana. Varun, brother of the complainant was married to Ekta daughter of Late Jai Gopal, and the petitioner, but they had developed strained relations, owing to her arrogant and non-adjustable nature, as a result whereof, he (Varun) filed a petition, under Section 11 of the Hindu Marriage Act, against her, for declaring their marriage as null and void. It was stated that the petitioner, who is the mother of Ekta, is a political figure. It was further stated that a number of criminal cases, under various offences, stood registered against the petitioner Micky and Vicky, her sons. It was further stated that, on 18.09.07, at about

8.30 AM, when the complainant, visited his office, he saw the glass of the main door thereof, and its both sides broken. He immediately called the local Police, and got lodged DDR No. 3, dated 18.09.07. When the complainant inquired into the matter, he came to know, that on the night intervening 17/18.09.07, at about 3.30 AM, two unidentified persons, came on motorcycle, among whom, one was armed with iron rod. They with the help of iron rod broke the glass of the entrance of his (complainant's) office and entered therein. It also came to the fore, that both of them, committed theft of case files, cheque book, important documents and other valuables, belonging to the complainant. It was further stated that, an FIR No. 97, dated

19.09.07, under Sections 379 and 511 IPC, was got registered against the aforesaid unidentified persons.

3. It was further stated that, on 25.07.08, when the complainant, was standing, in the office of the Deputy Criminal Misc. No. M-14265 of 2009 3 Superintendent of Police, near the Deputy Inspector General's office, Ludhiana, in connection with an inquiry, being conducted by the M.D. Cell, Ludhiana, the petitioner alongwith Ekta, Micky and Vicky, came there, and started abusing him and threatened him with dire consequences. They also proclaimed that, in the first instance, Micky and Vicky broke the glass of the office of the Complainant and if he did not help his brother, his legs will be broken. Ultimately, the complaint, under Sections 120-B, 379, 427, 457 and 506 read with Section 34 IPC, was filed.

4. After recording the preliminary evidence, in the complaint, vide order dated 24.03.09 (Annexure P2), the petitioner alongwith other accused, were summoned, to face trial, for the offences, punishable under Sections 120-B, 379, 427, 457 and 506 read with Section 34 IPC, by the trial Court.

5. Feeling aggrieved, the instant petition, has been filed by the petitioner.

6. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

7. The Counsel for the petitioner, submitted that the respondent No. 1/complainant, being an Advocate, by profession and a member of the District Bar Association, Ludhiana, filed a false complaint. He further submitted that the brother of respondent No. 1/complainant, namely Varun Khurmi, is married to Ekta Sahni, daughter of the petitioner. He further submitted that Varun Khurmi and Ekta Sahni, developed strained relations with each other. He Criminal Misc. No. M-14265 of 2009 4 further submitted that due to temperamental differences, between Varun Khurmi (brother of the respondent No. 1/complainant) and Ekta Sahni (daughter of the petitioner), Varun Khurmi, filed a petition (Annexure P3), under Section 11 of the Hindu Marriage Act, for declaration of their marriage, as null and void. He further submitted that Varun Khurmi also filed an application for interim custody of their minor child namely Bhavishya. He further submitted that, due to the matrimonial dispute, between Varun Khurmi, the brother of respondent No. 1/complainant and Ekta Sahni, daughter of the petitioner, he (respondent No. 1/complainant), being an Advocate by profession, by misusing his position, started filing complaints, against Ekta Sahni and her family members. He further submitted that the complaint and the summoning order, being the sheer abuse of the process of the Court, are liable to be quashed.

8. On the other hand, the Counsel for the respondents, submitted that, bare perusal of the allegations, contained in the complaint, constitutes the offences, punishable under sections 120-B, 379, 427, 457 and 506 read with Section 34 IPC. They further submitted that the trial Court, after going through the allegations, contained in the complaint, and the preliminary evidence, was right, in coming to the conclusion, that the petitioner alongwith others, committed the offences. They further submitted that the mere fact that, on account of temperamental differences, between the daughter of the petitioner and the brother of respondent No. 1/complainant, there was a matrimonial dispute, between them, did not mean, that Criminal Misc. No. M-14265 of 2009 5 the instant complaint, is a false one. They further submitted that, if there is any probable defence, with the petitioner, that can be taken only, during the trial of the case. They further submitted that, this Court, in exercise of its power, under Section 482 Cr.P.C., which provides a summary remedy, cannot take into consideration the probable defence. They further submitted that the petition under Section 482 Cr.P.C., is not maintainable, as the revision-petition is maintainable against the order summoning the petitioner as an accused.

9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The summoning order dated 24.03.09, vide which, the accused/petitioner, was summoned by the trial Court, is revisable. No revision-petition was admittedly filed by the petitioner, against the order dated 24.03.09. While defining the powers of the High Court, under Section 482 of the Code of Criminal Procedure, the Apex Court, in State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), held that the inherent power under Section 482 of the Code of Criminal Procedure, is not to be resorted to, if there is a specific provision, in the Code or any other enactment, for redressal of the grievance of the aggrieved party. In view of the principle of law, laid down, in the aforesaid case, by the Apex Court, no resort to the extraordinary remedy, under Section 482 of the Code Criminal Misc. No. M-14265 of 2009 6 of Criminal Procedure, could be made, in view of the ordinary remedy of revision, available under Section 397 of the Code of Criminal Procedure. As stated above, the ordinary remedy under Section 397 of the Code of Criminal Procedure, was not availed of by the petitioner. Had the revision-petition been filed, against the order, summoning the petitioner, as an accused, in the event of acceptance of the same, by the Court of Sessions, the proceedings, as a whole, would have terminated. In view of the above, the petition under Section 482 of the Code of Criminal Procedure, is not maintainable. The same is, thus, liable to be dismissed, being not maintainable.

10. For the reasons recorded above, Criminal Misc. No. M-14265 of 2009, is dismissed, being not maintainable. However, it is made clear, that the petitioner, if so advised, may avail of the remedy of filing a revision, against the order dated 24.03.09, vide which, he was summoned, as an accused, by the trial Court, in the Court of Sessions. If such a revision petition, is filed by the petitioner, in the Court of Sessions, the same, may be decided by it, in accordance with the provisions of law. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

18.02.2010 Amodh (SHAM SUNDER) JUDGE