SUDHIR KUMAR Vs. KIRTI KUMAR BALL

JUDGEMENT

(1.) Petitioners by filing this petition under Section 482 read with Section 397 of the Code of Criminal Procedure have prayed for setting-aside an order passed by Judicial Magistrate 1st Class (II), Shimla in a complaint filed by Respondent No. 1 against Respondents No. 3 to 5 directing the Petitioners to be summoned and tried alongwith the other accused.

(2.) The facts in brief giving rise to the filing of the present petition are that on 29-12-1988 Respondent No. 1 filed a complaint in the court of Chief Judicial Magistrate, Shimla against Respondents 3 to 4 complaining that be bad been defamed by them-by making false statements/imputations by drafting a resolution against him on 10-6-1987 and thereafter circulating it to the higher authorities in the government as well as to the Ministers on 12-6-1987 and in June, 1988 of which he acquired knowledge only in the month of December, 1988. The complaint was assigned by the Chief Judicial Magistrate, Shimla to the Judicial Magistrate, 1st Class (II), Shimla, who called upon the complainant to produce evidence in support of the complaint. On 21st of July, 1989 complainant examined himself and two other witnesses and closed his preliminary evidence on 30th of August, 1989. The trial Magistrate on the basis of evidence on record, came to the conclusion that there was sufficient grounds for proceeding against the three accused namely Respondents No. 3 to 5 and accordingly he made an order summoning them to face trial. After the accused had been duly served on 24th of April, 1990, an order was made, calling upon the complainant to produce pre-charge evidence on 4th of June, 1990. On the adjourned date two witnesses were present who were not examined by the complainant on the ground that in the facts and the circumstances, it was for the accused to have rebutted the averments made in the complaint. On the same day an application was moved by the three accused praying for being discharged, as there was no prima facie case made out against them. The case was taken up on 7th of August, 1990 when this application moved by three accused was rejected, and case was fixed for 8th October, 1990 for recording pre-charge evidence, after the complainants contention had been negatived that it was for the accused to have rebutted the allegations made in the complaint.

(3.) Feeling aggrieved the accused took up the matter in revision and the Additional District and Sessions Judge, Shimla on 5th of April, 1991 dismissed the revision and upheld the order of summoning the three accused. This order was further challenged by the three accused by filing Criminal Revision No. 31 of 1991 in this Court, which was dismissed on 6th of May, 1991.