High Court of Punjab and HaryanaCRR/1877/2011dismissed

Suresh Pal Singh Parmar v. State Of Haryana

2016-12-23Mrs. Justice Manjari Nehru Kaul19 pages

CRR No.1877 of 2011 (O&M).

Decided on:December 23, 2016.

Suresh Pal Singh Parmar.

.........Petitioner.

Versus

State of Haryana and others .........Respondents.

Argued by: Mr. Sunil Panwar, Advocate for the petitioner.

Mr. Manish Bansal, DAG, Haryana.

Mr. Karanvir Singh Khehar, Advocate for respondents No.2 and 3.

Petitioner has filed the present revision petition against the order dated 29.4.2011 passed by learned Additional Sessions Judge, Panchkula, whereby revision petition filed by respondents No.2 and 3, namely, Anita Chaudhary and her husband Surender Kumar Chaudhary against the summoning order dated 30.11.2009 passed by learned Judicial Magistrate 1st Class, Panchkula, was accepted and accordingly the summoning order was set aside.

Briefly stated, the petitionercomplainant had filed a complaint under Sections 499, 500, 109 and 120B IPC against the respondents accused No.2 and 3. As per the complaint, the complainant was working as

District Attorney in District Court, Panchkula whereas respondent No.3 Surender Kumar Chaudhary was working as a Lecturer in Chemistry Department in Government College, Sector1, Panchkula and was junior to the wife of complainant, namely, Rukmani Parmar. Respondent No.2 Anita Chaudhary is wife of respondent No.3 and was working as Assistant Director in the office of Commissioner, Higher Education, Haryana whereas Charan Dass Walia (now deceased), who was arrayed as accused No.3 in the complaint, was father of respondent No.2 Anita Chaudhary and father in law of respondent No.3 Surender Kumar Chaudhary.

In the month of February, 1999, a complaint was filed by Dr. Narender against respondent No.3 Surender Kumar Chaudhary wherein it was alleged that he had filed a false affidavit with regard to Giandeep Cooperative Group Housing Society, Panchkula deposing therein that neither he nor his spouse or children own any house, flat, plot etc. in their name in the Urban Estate, HUDA, Panchkula. The said complaint was marked to CIA Staff for enquiry and during the said enquiry, respondent No.3 had approached the petitionercomplainant, who was working as Deputy District Attorney to help him in the pending enquiry. But the petitioner refused to extend any help to him. Later on, on the basis of enquiry, an FIR was registered against the respondent No.3 on the basis of opinion sought from the petitionercomplainant. Therefore, the accused No.3, namely, Charan Dass Walia had some grudge against the wife of the petitioner when she took the charge as Head of the Department from respondent No.3.

Accordingly, the wife of petitioner had restrained respondent No.3 from interfering in the department functioning unnecessarily. In this manner, enmity between the parties cropped up. Respondent No.3 started harassing the wife of the petitioner by adopting illegal means for which the authorities had verbally warned the accused to be careful. During the year 200708, respondent No.3 instigated Charan Dass Walia (accused No.3, as referred in the complaint), who was father of respondent No.2 Anita Chaudhary and got a complaint lodged against the petitioner and his wife before the various authorities including ADGP (Crime), DGP, Haryana, Education Minister, Haryana and the Chief Minister, Haryana to defame and damage the reputation of the petitioner and his wife in the eyes of friends, colleagues, official circle and the public at large.

On 27.6.2007, all the accused had made a false complaint against the petitioner through accused Charan Dass Walia (now deceased). After detailed enquiry, the allegations made by the accused were found to be false. DSP Rajesh Duggal had concluded that respondent No.3 used to write/draw unworthy words and figures in the classroom of the Department of Chemistry where the wife of complainant used to take classes. It was alleged that the respondent No.3 caused unnecessary obstruction in the department work and mentally harassed the wife of the petitioner complainant from time to time.

The accused thereafter had conspired again to defame the complainant and his wife and had resorted to file a false complaint on

17.7.2007 to ADGP, Haryana through accused Charan Dass Walia. The complaint was marked to Superintendent of Police, Panchkula and during the enquiry, said Charan Dass Walia himself made a statement to the police that since Rukmani Parmar (wife of the petitionercomplainant) had been transferred, there was no dispute. After the enquiry, the said complaint was filed by the Superintendent of Police.

Despite the DGP enquiry on 22.4.2008, all the respondents accused conspired with each other and instigated accused Charan Dass Walia to file another complaint to the Education Minister. Accused Charan Dass Walia had only stated that no action was taken by the police on his earlier complaint. However, the Enquiry Officer, S.S. Phulia, who was Principal, Government College, Ambala upheld the allegations of the wife of the complainantpetitioner to be true as the same were never refuted by him. Charan Dass Walia had filed another false complaint on 10.3.2008 to the Chief Minister, Haryana which was marked to DGP, Haryana for enquiry. However, DGP, Haryana filed the same as the complainant had already been enquired into by the police. The petitioner remained posted as Deputy District Attorney in the office of S.P.

Panchkula from September, 1996 to August, 2003 and during this posting, he had earned an outstanding service record. Before the filing of complaint by accused Charan Dass Walia, the complainant had a good reputation in the eyes of all the officers in the Police Department.

good reputation and respect in the eyes of senior IPS officers and other colleagues. However, when the false complaint submitted by Charan Das Walia was received in the office of DGP, Haryana and dealt by different officials, all the officials started talking about the allegations made against the petitionercomplainant by accused Charan Dass Walia and they started ignoring the petitioner in the office. In this manner, image and reputation of the petitioner was lowered down in the eyes of colleagues and senior officers of the department.

The petitionercomplainant supported his complaint with documents Ex.C1 to C15. The complainant examined himself along with Kamla Devi working in the complaint Branch Office of S.P., Panchkula; HC Mukesh Kumar No.43, Ambala, Complaint Branch, DGP Office; Surender Pal Singh Chehal, Deputy District Attorney, DGP Office, Panchkula and Constable Jarnail Singh, DGP Office, Haryana. Vide order dated 30.11.2009, learned Judicial Magistrate 1st Class, Panchkula had summoned the accused i.e. respondents No.2 and 3 to face trial.

Against the summoning order dated 30.11.2009, the accused respondents No.2 and 3 had filed a revision petition before the Court of Session and vide order dated 29.4.2011, learned Additional Sessions Judge, Panchkula had accepted the revision petition and set aside the summoning order dated 30.11.2009 passed by learned Magistrate. It is in these circumstances, the petitionercomplainant, is

aggrieved against the order passed by learned Additional Sessions Judge, Panchkula, and has filed the present revision petition. Learned counsel for the petitioner has submitted that Charan Dass Walia, who was arrayed as accused No.3 in the complaint, had died in the year 2009. He has argued that unless there is a perversity with the trial Court judgment, the revisionary Court cannot interfere with the positive findings recorded by the trial Court which are based on material facts. The revisionary Court has interfered in the matter without there being any illegality in the order of summoning. The impugned order passed by the revisionary Court at the stage of summoning is illegal and not permissible as it is only during trial, the respondents may, if available, take defence of the 8th and 9th exceptions attached to Section 499 IPC.

So long as the version of complainant is not rebutted, it is to be considered as true. The defence of the respondentsaccused cannot be considered at the stage of summoning. The trial Court while summoning the accused had formed an opinion on the basis of evidence and, therefore, no interference was warranted. Learned counsel for the petitioner has further argued that assuming for the sake of arguments, the interference was warranted by the revisionary Court, the fault of the Court cannot prejudice the complainant and the best course left to the revisionary Court was to remand the case. At the stage of summoning, the defence of accused is not to be examined.

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summoning, the Court has to see whether a primafacie case is made out against the accused or not. But when the High Court has interfered in the revisionary jurisdiction and examined the defence on merit and has allowed the criminal revision petition reversing the decision of the Magistrate, the Supreme Court has observed that it was not a stage to examine the defence of respondents. Reliance has also been placed upon the judgment of this Court in &'.#$# !/ ())0+,-+ 1-,,* to state that the issue as to whether contents of the news item are true and were correctly published and whether or not there was any complicity of the petitioners behind publication thereof, are disputed questions of fact which can be adjudicated on appreciation of evidence to be led by both the parties. He has referred to para 11 of the said judgment, which reads as under: "

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Reliance has also been made to the judgment in the case of !!/2 " '#$# !3# &1 " ' (),)+4-+ 1-,54 wherein, in a case of quashing of criminal complaint on account of charge of defamation of complainant under Section 500 IPC, the trial Court had issued summoning and the accused had sought quashing of the complaint on the ground that imputations were made in good faith and no offence was made out as provided in the 10th Exception of Section 499 IPC, the Apex Court had dismissed the petition by observing that it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in "good faith" and for "public good" under the said Exception.

Such like question has to be considered on the facts and circumstances of each case having regard to the nature of imputation made. He has also relied upon another judgment of Hon'ble Supreme Court in 1%6' " '##$# ,78, +-,457 to contend that the question of applicability of Exception to Section 499 IPC can arise only after commencement of trial and at the stage of enquiry whether primafacie case is made out or not. The question of applicability of Exception to Section 499 IPC as well as other defences that may be available to the accused will have to be gone into only during the trial of the complaint. Thus, learned counsel for the petitioner has justified the order of summoning passed by learned Magistrate and has sought setting aside of the order passed by the revisionary Court.

On the other hand, learned counsel for the respondents No.

3 has argued that the complaint made by one Narender remained untraced and the DSP, who looked into said complaint exonerated the respondents. But the petitioner had opened the case of Narender without any approval, despite that he was not competent to reopen it. However, he justified the order passed by the revisionary Court and has submitted that there was no material with learned Magistrate to issue summoning. The trial Court must not issue summoning in a mechanical and casual manner as it prejudices the interest of the accused. He has further argued that the complaint was never moved by respondents No.2 and 3, namely, Anita Chaudhary and Surender Kumar Chaudhary, but the same was moved by Charan Dass Walia, who had already died in the year 2009. He was father of respondent No.2 and father inlaw of respondent No.3.

Even if a complaint has been made to the superior officer, it does not fall within the ambit of term "defamation". He has referred to Sections 190 and 204 Cr.PC and argued that firstly the Magistrate has to satisfy himself that the allegations made in the complaint are specific and it is only thereafter, he can issue summoning. The order passed by the Magistrate nowhere shows applicability of mind as what is the evidence against the accused so as to issue summoning. Learned counsel for respondents No.

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such like order cannot sustain before the scrutiny of law. When the learned Magistrate while issuing summoning has not recorded his satisfaction about primafacie case against the respondentsaccused and the role played by them in the offence, issuance of such summoning was held to be illegal and amounts to abuse of process of law. It is obligatory on the part of the Magistrate that while passing the order of summoning it must reflect that he applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a primafacie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. Reliance has also been placed upon the judgment of Hon'ble Rajasthan High Court in $& 6 = #$# ;#' ())8+,- + 1- 4<7 and the judgment of this Court in 6 1#'6$#$# ;'= " &' "

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I have heard learned counsel for the parties. Learned Magistrate, while issuing summoning of respondents No.2 and 3 vide order dated 30.11.2009 has ordered as under: "2 %

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As such, the cited authorities are not attracted in the peculiar facts and circumstances of the present case. The process of summoning cannot be initiated in casual manner. The learned Magistrate while issuing summoning has to assess the culpability of an accused as summoning of accused in criminal case is a serious matter. This Court finds that while issuing summoning, learned Magistrate has not appreciated the fact that on the relevant date when process of summoning was issued, Charan Dass Walia had already died.

the sake of repetition, it is said Charan Dass Walia, who initiated complaint against the petitioner which led to filing of the complaint by the petitioner. Thus, the authorities cited by learned counsel for the petitioner do not apply to the facts and circumstances of this case more particularly when Charan Dass Walia (who was arrayed as an accused in the original complaint) had moved complaints to the authorities concerned highlighting the grievances of respondents No.2 and 3. Therefore, the case of the respondentsaccused falls within the Exceptions 9th and 10th attached to Section 499 IPC. The administrative complaints made by the aggrieved person cannot outrightly be accepted as defamation.

It is not in dispute that the very complaint which has formed the basis of summoning by learned Magistrate was made by Charan Dass Walia, who was arrayed as accused No.3 in the original complaint. He has died in the year 2009. The copy of said complaint was made to DGP, Haryana which was marked to DSP Flying Squad and on enquiry, it was found that the allegation was false. Ex.C6 is again an application moved by Charan Dass Walia addressed to ADGP, Crime Branch and Ex.C10 is the application made to the Education Minister, Haryana. These applications were made to the authorities who were relevant to entertain such complaints and a prudent person would address such complaint to such authorities. The accused have claimed Exceptions 8th and 9th of Section 499 IPC, which read as under: ;

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Admittedly, the accused No.3 Charan Dass Walia was father of respondent No.2 Anita Chaudhary. It is not unusual for a father to make such complaints if he feels that his daughter or ward has some problem. So, it can hardly be accepted that on these facts a case for defamation is made out. The action of accused does not refer to any publication which may harm the reputation of the complainant in any manner. The accused No.3 had just sought to exercise his right for enquiry against the conduct of the petitioner complainant and invited the attention of the appropriate authority. Moreover, he had already died in the year 2009 and, therefore, the proceedings against him were already dropped during pendency of the complaint before the trial Court.

Further more, the order passed by learned Magistrate, which has been reproduced above, is too sketchy and shows complete nonapplication of mind. There is not even a slightest observation by the Magistrate that what are the factors/evidence available on record which led to summoning of the respondentsaccused for the offences committed by them. In 9

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Apex Court has observed that when the entire complaint contains bald and vague allegations against the respondents and the Magistrate having not recorded his satisfaction about primafacie case against the respondents, such summoning cannot sustain. The relevant observations made by the Apex Court in para Nos.14 to 19 of the said judgment are reproduced as under:

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+? In view of the above, this Court does not find any illegality, perversity or infirmity in the impugned order dated 29.4.2011 passed by learned Additional Sessions Judge, Panchkula as the summoning order dated 30.11.2009 is sketchy and vague and the same has been passed by learned Magistrate without any application of mind. Even otherwise, this Court finds that when Charan Dass Walia, who had initially made the complaint against the petitioner leading to filing of the complaint by the petitioner, has already died, the very purpose of summoning the accused has been diluted. Therefore, the impugned order dated 29.4.2011 passed by learned Additional Sessions Judge, Panchkula is upheld and the present revision petition, being devoid of any merit, is dismissed.

√ Whether speaking/reasoned:

Yes/No √ Whether Reportable:

Yes/No