JAI CHAND Vs. ASHU BALA

JUDGEMENT

(1.) JAI Chand and two others through present petition filed by them under Section 482 of the Code of Criminal Procedure seek quashing of complaint bearing No. 143-2 dated November 22, 1993, under Sections 376/452 read with Section 120-B of the Indian Penal Code, which is pending disposal in the Court of Shri H.P. Singh, Judicial Magistrate I Class, Fazilka, as also summoning order dated December 24, 1993.

(2.) THE facts, on which the relief aforesaid is sought to rest, as per petitioners' case, are that Punnu Ram, father of petitioner No. 2, Ram Rakha, had two brothers, namely, Lehna Ram and Karam Chand and three sisters. All these six persons inherited land measuring 12 killas and 3 marlas situated in village Tahliwala Bodla. On the death of Punnu Ram and his brothers, his share was inherited by his son-Ram Rakha and shares of his brothers, Lehna Ram and Karam Chand, were inherited by their widows, Viran Bai and Budhan Bai. Budhan Bai gave her share to Ram Rakha whereas Veeran Bai gave her share to her brother, Pahalwan Ram. On the basis of a family settlement that was worked out by the brother-hood, Ram Rakha was cultivating killa Nos. 9 and 10 of the Rect. No. 138 and had sown cotton crop therein in Sawani, 1993. On the intervening night of November 15-16, 1993 at about 10 p.m. Pehalwan Ram with the help of his son-in-law, Puran Chand, his father Mohri Ram of village Kalimwala and one Bohar Singh of village Lakhewali, cultivated the land and destroyed the cotton crop sown by Ram Rakha in killa numbers, mentioned above, regarding which an FIR No. 273 dated November 19, 1993 was registered against four persons aforesaid, who are presently facing trial under Sections 447/427 IPC. It is the case of the petitioners that as a counter blast of the FIR aforesaid, and with a view to put pressure on the petitioners so as to withdraw the case mentioned above, Pehalwan Ram fabricated a false story of rape of his daughter-Ashu Bala and got a false complaint lodged through her in the Court of Judicial Magistrate I Class, Fazilka. After recording preliminary evidence, learned Magistrate, seized of the matter, summoned all the petitioners and one Balkar Singh, under Sections 376/452/120-B IPC vide order dated December 24, 1993. It is this complaint as also the summoning order, as referred to above, which the petitioners seek to get quashed.

(3.) THIS matter has been contested by respondent No. 1-Ashu Bala, who has also filed written statement. It is pleaded by way of preliminary objections that petition is not maintainable against summoning order in view of the law laid down in K.M. Mathew v. State of Kerala, 1992(1) Recent 232 wherein it has been held that the summoning order is an interim order and not a judgment and it can be considered by the trial Court on making application by the accused after putting in appearance before the said Court. It is also pleaded that the complaint in the present case was filed on November 22, 1993 and as a counter blast similar type of complaint under Section 376 IPC was got instituted by petitioners through one Raj Rani against four persons, namely, Diwan Chand, Bhagwan Chand, Khazan Chand and Buta Ram, who after being summoned, challenged the summoning order by way of Crl. Misc. No. 3824-M of 1995 on the ground that there was no medical of the prosecutrix and the allegations were false and no case of rape was made out. That petition came up before this Court for motion hearing and was dismissed. It is for this reason that it is being pleaded that the present petition deserves to be dismissed. The assertions of the petitioners, reference whereof has already been given, have been stoutly denied. It is pleaded that the complaint has been filed on the basis of actual occurrence and there is no question of same being as a counter blast. It is also pleaded that in paragraph 3 of the complaint it has been specifically mentioned that on November 20, 1993 complainant along with her mother had gone to the police for information but no action was taken because the accused were influential persons. Medical of the victim of rape was also not got done as the police was not co-operative and that being the situation, there was no choice for the prosecutrix but for to approach the Court. Insofar as acquittal of Ram Rakha-Petitioner No. 2 in an earlier case pertaining to year 1981 is concerned, it is pleaded that the accused in the said case were actually acquitted but that does not mean that the petitioners in the present case are also innocent and it will be seen only at the time when evidence of the parties has been recorded.