KRISHAN MURARI Vs. MOHINDER PAL

JUDGEMENT

(1.) IN this petition the order of the learned Magistrate, Sunam, dated 7th April, 1977, summoning the petitioner is being questioned. Mr. A.N. Mittal, the learned counsel appearing for the respondent has contended that the order of the Magistrate summoning the accused-petitioners being an interlocutory order, no petition is maintainable in view of the provisions of Section 397(2) Criminal Procedure Code, 1973 (hereinafter referred to as the Code). That being so the inherent powers of this Court cannot be exercised for quashing the impugned order. He relies on the Single Bench decision of this Court in Surinder Mohan and others v. Smt. Kiran Saini, 1977 C.L.R. 212 in support of his contention. On the other hand it has been contended by the learned counsel for the petitioners that the impugned order passed by the learned Magistrate is, infact, an order without jurisdiction as he did not discuss the evidence, at all and if that is so, the provisions of Section 39(2) of the Code will be no bar for exercising inherent powers vested in this Court for quashing the order passed by the Magistrate. The learned counsel relies on a decision in Niranjan Lal Bawri v. The State and another, 1975 C.L.R., 488 and K.L. Nagpal v. Sat Parkash Jindal and another, 1977 C.L.R. 152 for this proposition, Reference has also been made to the observations of the learned Single Judge of this Court in Surinder Mohan's case (supra), at page 226 in which the learned Judge while discussing the case law come to the conclusion that the criminal proceedings against a person which culminated into the order of summoning if found to be without jurisdiction or in the nature of abuse of the process of the Court can be quashed by this Court under inherent powers. Mr. Mittal has made a reference to a decision in H.R. Bhuttani v. Miss Mani J. Desai and others. 1968 C.A.R. 223 (S.C.), wherein. Their Lordships of the Supreme Court while interpreting the provisions of Section 145 Criminal Procedure Code, held that the Magistrate while passing preliminary order has to give reasons for his satisfaction, but while expressing such satisfaction need not make a detailed reference to the evidence. The provisions of Section 145 shall stand complied with if the Magistrate has expressed his opinion with reference to the material on record. The learned counsel, therefore, contends that in case of provisions of Section 145, where a statute has placed obligation on the Magistrate for recording reasons in the preliminary order of summoning. Their Lordships held that the provisions of the Statute will stand complied with if opinion is expressed with reference to the material on the record, it would hardly the necessary for the Magistrate while passing an order under Section 204 of the Code to make reference to the evidence in detailed in the case. In any case, the view taken in the two Single Bench decisions of this Court in Niranjan Lal Bawri's case and K.L. Nagpal's case is contrary to the logical argument which is sought to be raised on the basis of the judgment of the Supreme Court in R.H. Bhutani's case (supra). It has also been brought to my notice that Criminal Misc. No. 3208-M of 1977-Darbara Singh v. Hakam Singh etc. involving same law point has been admitted to Division Bench by Sandhwalia, J. on 8th of August, 1977. In my view the following question of law needs to be settled authoritatively as the same is likely to be raised in a number of cases affecting a large number of persons :-

(2.) ADMITTED to D.B. To be heard with Criminal Misc. No. 3208-M of 1977. The proceedings before the Trial Court, stand stayed. ORDER of D.B.

(3.) KAMLA Rani filed a compliant against her husband Mangat Ram, his brother Mohinder Pal and a few others. That complaint was naturally, under Sections 434/109 of the Indian Penal Code and the major allegation against Mangat Ram was that with the assistance of Mohinder Pal and others he performed second marriage. It appears that during the pendency of that complaint Mohinder Pal respondent before us filed a complaint before the Magistrate for defamation under Section 500 Indian Penal Code and the accused were only two, Krishan Murari and Biru Mal and it was asserted in the complaint that these persons along with other disreputed Mohinder Pal in as much they were instrumental in the filing of the compliant by Kamla Rani on false allegations. Subsequently Kamla Rani died and the prior complaint filed by her was rendered infructuous. It would also be pertinent to mention that at this stage when the respondent Mohinder Pal brought the matter before the High Court in a Petition under Section 482 of the Code of Criminal Procedure and his prosecution in that complaint was quashed. It was held by this Court that no offence was committed by Mohinder Pal and as such he was exonerated of the offences alleged by Kamala Rani. While the learned Magistrate was considering the complaint filed by Mohinder Pal, obviously he recorded the statement of Mohinder Pal under Section 200 of the Code of Criminal Procedure and also recorded the preliminary evidence produced by Mohinder Pal. After hearing the arguments and considering that evidence, he made the impugned order of summoning the present petitioners. Against that order of the learned Magistrate passed under Section 204 of the Code of Criminal Procedure that the present petition under Section 482 of the Code is filed.