Criminal Misc. No. M-28340 of 2008 v. Madan Mohan Sharma

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vijay Sharma, Advocate, for the petitioners. Mr. Vivek Suri, Advocate, for the respondent. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Complaint No.1/18.01.06, titled as, 'Madan Mohan Sharma Vs. Anju Lata and others', under Sections 120-B, 148, 323, 427, 452, 504 and 506 read with Section 149 and 34 IPC, and, the summoning order dated 21.08.08, pending in the Court of Judicial Magistrate 1st Class, Patiala, has been filed by the petitioners.

2. The facts, in brief, are that, on 25.12.05, Madan Mohan Criminal Misc. No. M-28340 of 2008 2 Sharma, complainant, received a telephonic message, from the Manager, State Bank of Patiala, PSEB Branch, Patiala, where, he was posted, that the work of the bank, was to be done and after receiving the same, he went to his office. It was stated that, at about

12.15 PM, he received a telephonic message, from his sister Sharda Rani, that Anju Lata, one of the accused, alongwith 4/5 ladies and 7/8 persons, were calling bad names to him, and her, and forcibly trespassing into his house. On receiving the aforesaid message, from his sister, the complainant, immediately rushed, to his house, and found, that the accused and their companions, had forcibly trespassed therein. It was further stated that the accused persons manhandled both the complainant, and his sister Sharda, as also threatened to kill them. It was further stated that the accused alongwith their companions, caused damage to the household articles, belonging to the complaint. It was further stated that even Amit, nephew of Anju Lata, accused, also called bad names to Pushpa Attri, sister of the complainant, and also manhandled her. It was further stated that, thereafter, the complainant raised hue and cry, which attracted Rajinder Singh son of Jaimal Singh, resident of Jourian Bhattian, and, Ashok Kumar son of Suraj Bhan, resident of Arya Samaj, to the spot, who saved them, from the clutches of the accused. It was further stated that some of the assailants, on seeing Rajinder Singh and Ashok Kumar, fled from the spot. It was further stated that, thereafter, the matter, was reported, to the Police, as a Criminal Misc. No. M-28340 of 2008 3 result whereof, Baldev Singh, Assistant Sub Inspector alongwith some other Police officials, reached the spot and apprehended Anju Lata, Raj Rani and Bhawna. It was further stated that all the three accused, were taken to the Police Station. It was further stated that, thereafter, the complainant, lodged DDR No. 13 dated 25.12.05 with the Police, but no action was taken by it. Ultimately, the aforesaid complaint was filed.

3. After recording the preliminary evidence, and, on going through the documents, on record, the trial Court, summoned Anju Lata, Raj Rani and Kishori Lal, as accused, to face trial, for the offences, punishable under Sections 323, 427, 452 and 506 read with Section 34 IPC, whereas, it dismissed the complaint, against Amit, Sumit and Bhawna, accused.

4. Feeling aggrieved, the instant petition, has been filed by the petitioners.

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

6. The Counsel for the petitioners, submitted that the dispute, between the parties, was of civil nature, but the same was converted into a dispute of criminal nature. He further submitted that the allegations, contained in the complaint, did not constitute any cognizable offence. He further submitted that the criminal complaint, was filed, against the petitioners, by the respondent, with malafide intention. He further submitted that, even the order dated Criminal Misc. No. M-28340 of 2008 4

21.08.08, vide which, the petitioners, were summoned, by the trial Court, being without application of mind, was liable to be quashed.

7. On the other hand, the Counsel for the respondent, submitted that, against order dated 21.08.08, the revision-petition, was maintainable. He further submitted that, no revision-petition, was filed, by the petitioners, against the order summoning them. He further submitted that the petition, under Section 482 Cr.P.C., provides an extra-ordinary remedy. He further submitted that when an ordinary remedy, is available, to the petitioners, they cannot resort to the extra-ordinary remedy.

8. 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 21.08.08, vide which, the accused/petitioners, were summoned by the trial Court, is revisable. No revision-petition was admittedly filed by the petitioners, against the order dated 21.08.08. 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 Criminal Misc. No. M-28340 of 2008 5 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 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 petitioners, as 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.

9. For the reasons recorded above, Criminal Misc. No. M- 28340 of 2008, being not maintainable, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken as an expression of mind, on merits of the case.

10. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.

26.02.2010 Amodh (SHAM SUNDER) JUDGE