The absence of a witness list in criminal proceedings is a curable irregularity and does not invalidate the issuance of summons if the Magistrate applies judicial mind to the evidence presented.

JUDGMENT :

Rakesh Kainthla, J.

The petitioners have filed the present petition for quashing of proceedings pending before learned Judicial Magistrate First Class-IV, Shimla, in a case titled Kavita Chaudhary Vs. Harpreet Singh. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that the complainant made a complaint to Hon’ble the Chief Justice of this Court asserting that she is a resident of Dimple Cottage, Chotta Shimla-2, H.P. Her husband had taken Dimple Cottage on lease through Lease Deed dated 24.5.2010. Physical possession of the Cottage was handed over to her husband on 1.6.2010. Gurpreet Singh is the Special Power of Attorney of Harpreet Singh. He was dealing with the property on behalf of Harpreet Singh. The complainant’s husband remained in possession since 24.5.2010. He carried out the necessary repairs in the building. Gurpreet Singh and Harpreet Singh started interfering with the enjoyment of the property. The complainant’s husband filed a civil suit, which was compromised on 26.3.2011. The defendant undertook not to interfere in the possession of the complainant and her husband. Harpreet Singh and Gur Parveen Kaur trespassed in the accommodation on 21.4.2011. The complainant visited Shimla on 24.4.2011, and she was informed by Gurinder Singh Maan about the trespass. She noticed that the locks and doors of the premises were broken. This fact was also confirmed by Gurpreet Singh Maan. The complainant found that her goods were disturbed, and some of the articles were stolen. She reported the matter at the Police Station, Chhotta Shimla, however, Shyam Sunder, Additional SHO, refused to enter the information. Shyam Sunder visited the premises of the complainant on 24.4.2011 along with some constable. He tried to place some suspicious articles on the premises. The complainant objected to it. Shyam Sunder abused and threatened her. This incident occurred at 8.30 PM. Sarwan Singh, SHO and Shyam Sunder, Additional SHO, came to the premises at about 10.30 PM. Sarwan Singh used rough and unparliamentary language against the complainant. Harpreet Singh had a blanket. The complainant objected. It was found that Harpreet Singh had a rifle which was concealed in the blanket. The police seized the rifle. Gur Parveen Kaur visited the premises on 25.4.2011 and told the complainant to leave the premises. The complainant asserted that no action was being taken in the complaints filed by her. Hence, it was prayed that an action be taken and protection be provided to her.

3. This complaint was sent by Hon’ble the Chief Justice to the Secretary, District Legal Services Authority, Shimla, H.P., who forwarded it to learned Judicial Magistrate First Class-VI, Shimla. Learned Judicial Magistrate First Class-VI, Shimla recorded preliminary evidence and ordered the issuance of summons vide order dated 4.7.2011.

4. Being aggrieved, the petitioners Harpreet Singh and Gur Parveen Kaur approached this Court. This Court vide Cr.MMO No. 53 of 2012, decided on 18.9.2012, titled Harpreet Singh and others Vs. Kavita Chaudhary quashed the order dated 4.7.2011. The matter was carried to the Hon’ble Supreme Court.The Hon’ble Supreme Court passed the following order:-

“We are not inclined to interfere with the impugned order passed by the High Court under section 482, Cr.P.C. quashing cognizance taken against the respondents on the ground that the order was passed by the Magistrate without application of judicial mind. However, it will be open for the Magistrate to apply judicial mind to whatever materials placed before him and pass appropriate orders on the question of cognizance.

The special leave petition is dismissed with the above observations.”

5. Learned Judicial Magistrate First Class-IV held that ASI Shyam Sunder, Harpreet Singh, SHO Swaran Singh and Kalu had forcibly entered the house of the complain