September 28 v. Ram Niwas & Ors.

Present: Mr.Sandeep K.Sharma, Advocate for the petitioner. None for the respondents ** Sabina, J. Petitioner has filed this revision petition under Section 401 of the Criminal Procedure Code (for short `Cr.P.C.') challenging order dated 2.5.2005 passed by the Additional Sessions Judge, Jhajjar whereby the summoning order passed by the trial Court was set aside. The facts of the case, in brief, as noticed by the learned Additional Sessions Judge in para 2 of its order read as under:- “Brief facts of the case are that complainant Bhim Singh had filed a criminal complaint in the Court of the ld. Judicial Magistrate Ist Class, Jhajjar on 1.2.2002, in which he had claimed himself to be a peace loving resident of village MadanKalan, tehsil and District Jhajjar. According to him, the accused are quarrelsome persons. Criminal Revision No. 1579 of 2005 2 On 15.6.2001 at about 7.00 p.m. they in furtherance of their common intention had entered into the house of the complainant and they had confined all his family members illegally. On the basis of their muscle power, the accused started removing the roof of his house. They took away wooden log and an almirah, thereby causing him financial loss to the tune of Rs.15,000-20,000/-. They had also threatened the family members of the complainant with death in future. The accused had too made illegal encroachment on the land of the complainant. The matter was reported to the police, but it in collusion with the accused, had filed challan under Sections 107/151 IPC. Therefore, a criminal complaint was filed in Court.” After hearing the learned counsel for the petitioner, I am of the opinion that the instant petition deserves dismissal Learned Additional Sessions Judge, while setting aside the summoning order, in paras 6 and 7 of the order, has held as under:- “6.I have considered the submissions advanced by both the sides. It is admitted fact that the parties are locked in multiple litigation. Criminal and civil cases are pending between them. There is nothing to show that the matter was reported to the police regarding the alleged occurrence. As per the averments made in the complaint, the occurrence had taken place on 15.6.2001. However, in the civil suit filed by the complainant on 21.6.2001, precisely the said occurrence had taken place about one month before filing of the suit i.e. 21.5.2001. Thus, the complainant himself was not sure as to when the said occurrence had taken Criminal Revision No. 1579 of 2005 3 place. It prima facie follows no such occurrence had ever taken place. It is very easy to procure oral testimony of a few witnesses particularly in the country side. Two of the witnesses namely Karanvati (PW3) and Om Parkash (PW4) happen to be his wife and son, respectively. Not much weight can be attached to the evidence of such closely related interested witnesses.

7. Possibility cannot be ruled out that the instant complaint was filed by the complainant as a counter-blast to the litigation pending between the parties. Thus, looking from any angle, I am of the opinion, the ld. Judicial Magistrate Ist Class, Jhajjar fell into error in summoning the accused, without applying her judicial mind. The impugned order is accordingly set aside. This revision petition stands accepted. The lower Court file be sent back and the file of this Court be consigned to record room.” The petitioner had filed a civil suit for declaration and permanent injunction and damages against the respondents. Paras 3 and 5 of the plaint read as under:- “3. That the defendants are strong headed and muscle men having enough man power and they out of ill-will and man power illegally and forcibly got the wall from point GHF demolished and as a result of this they also demolished the room marked EFHI and took away with them the entire raw material included Bricks, Garder and Wooden Battens etc. resulting in monetary loss of Rs. 15,000/- approximately and now the defendants have got the wall marked GHF constructed in 4'' inches wall on the land of plaintiff only instead of 14'' inches wall about one month back. Criminal Revision No. 1579 of 2005 4

5. That the plaintiff requested the defendants severally not to interfere in demolishing the wall over marked AG and further that the 4'' inches wall marked GF be got demolished from the land of plaintiff. The defendants have made an encroachment over the land of the plaintiff and to pay Rs.15,000/- as damages for causing loss by demolishing the Room marked EFHI. But at least the defendant paid no heed to the request of the plaintiff and finally refused on 15.6.2001. Hence this suit.” Thus, the petitioner himself had averred in the Civil Suit that the occurrence had taken place about a month before the filing of the suit. The plaint is dated 21.6.2001. Hence, the plea taken by the petitioner that the occurrence in dispute had taken place on 15.6.2001 stands falsified. Moreover, in the plaint no averment has been made that any occurrence had taken place on 15.6.2001. In these circumstances, the delay in filing of the complaint gains significance. The complaint was filed in December 2001 qua the occurrence alleged to have taken place on 15.6.2001. The suit was filed in June, 2001. The suit as well as the criminal complaint have been filed by the same counsel and it cannot be said that the correct facts were not in the knowledge of the counsel at the time of the filing of the complaint and the Civil Suit. In these circumstances, the learned Additional Sessions Judge had rightly quashed the summoning order. No ground for interference is made out. Dismissed. September 28,2010 ( Sabina ) Judge Criminal Revision No. 1579 of 2005 5