Punjab-Haryana High Court
State Of Punjab vs Sanjeev Kumar And Others on 12 March, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Reference No. 1 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Reference No. 1 of 2013
Date of decision : 12.03.2013
State of Punjab .....Petitioner
VERSUS
Sanjeev Kumar and others ....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Kirat Singh Sidhu, DAG, Punjab
for the State.
Mr. S.S. Sandhu, Amicus Curiae,
****
RANJIT SINGH, J.
The present reference has a trail of history behind which may have to be recapitulated to fully get the hang of the issues arising in the present reference.
The history in this case, starts from FIR No. 123 dated 10.11.2004 registered at Police Station Raman under Sections 376, 506 and 34 IPC against Sajeev Kumar @ Sandeep Kumar, Manoj Kumar @ Manu and Gora @ Gourav. Smt. Mukhtiaro Bai wife of Raja Ram Bajigar, resident of District Hanumangarh, Rajasthan had lodged this FIR. She has disclosed in the FIR that she used to suffer Criminal Reference No. 1 of 2013 2 from the problem of High Blood Pressure. Her bother-in-law, Mahinder Singh @ Sadhu resided in village Talwandi Sabo. He told the complainant that she could have her wishes fulfilled by offering prayers at the Gurdawara, Talwandi Sabo. Accompanied by her husband Raja Ram, the complainant lady came to visit the said Gurdwara. While returning after paying obeisance, they met the accused persons sitting in black colour car. The persons present in the car called her husband. In response to query, the husband of the complainant told these persons that he and his wife were waiting for bus. These persons then offered lift to the complainant and her husband as they were statedly going to their village. The complainant lady and her husband, thus, sat in the car.
Sometime in the evening, these persons stopped the car and opened its bonnet saying that the car had developed some defect. They also said that Mechanic may have to be called. Saying so these persons started taking liquor. After sometime, they again started the car but then stopped on the side of canal. When the husband of the complainant asked them about it, they took out khapa from the car. These persons then took him to one side and told him that if he raised any noise, he would be done to death. The complainant lady was thrown on the back seat and subjected to forceable intercourse. These persons tore away the shirt of the complainant and in the process her bangles broke. As a result, the complainant suffered injuries as well. The complainant lady was warned that not to disclose this incident to anyone. Three persons then sat in the car leaving the complainant and her husband at the Criminal Reference No. 1 of 2013 3 spot. The husband of the complainant knew them and disclosed their names as Sandeep, Manoj and Gourav.
The complainant was subjected to medical examination on 11.11.2004. The petitioners would allege that this case was false and fabricated and when they learnt about the same, they submitted an application dated 13.12.2004 to SSP, Bathinda alleging their false implication. SSP, Bathinda detailed DSP, Talwandi Sabo to investigate the case. After investigation, the DSP found petitioner, Gourav, innocent. Dissatisfied with this finding, the husband of the complainant gave an application to DGP, Punjab complaining that the accused persons were being favoured. The petitioners also made a request for proper investigation in this matter by some higher police officers.
The detailed inquiry statedly was then held by SP (DP), Bathinda. It is stated that he found this case to be falsely lodged at the instance of husband of the complainant. He, accordingly, made recommendation for cancellation of FIR and for initiating proceedings under Section 182 Cr.P.C. against the complainant and her husband.
Faced with this situation, the complainant and her husband again complained to the DGP on 17.02.2005. The matter was again sent for further investigation to SP(DP), Faridkot. This officer also had found this case to be false. The cancellation report was, accordingly, submitted before the Illaqa Magistrate. At that stage, respondent No. 2/lady filed complaint against the petitioners under Sections 376, 506 and 34 IPC when Sub Divisional Judicial Magistrate after recording preliminary evidence found that there was Criminal Reference No. 1 of 2013 4 sufficient evidence on record to summon the accused persons named above for offences under Sections 376, 506 and 34 IPC. The cancellation report submitted by the police was not accepted. The Sub Divisional Judicial Magistrate committed the case to the Court of Session for trial. The case was entrusted to the Court of Sh. G.K. Dhir then Additional Sessions Judge, Bathinda.
The accused persons had then filed Criminal Miscellaneous Petition No. 4186-M of 2008 for quashing the complaint dated 28.03.2005 filed by the respondent lady under Sections 376, 506 and 34 IPC. They also prayed for quashing the summoning order dated 06.09.2007 passed by the Sub Divisional Judicial Magistrate and the consequential pending proceedings arising out of the complaint. This Court had rejected the prayer of the accused persons by observing that the complainant in support of the allegation made by her had examined Doctor as well as independent witnesses and thereafter, Sub Divisional Judicial Magistrate had summoned the accused persons. The Court went on to observe that for the purpose of quashing the allegation made in the complaint had to be taken at their face value and the defence of the accused persons, as projected, could not be looked into. Finding that there was serious allegation made against the accused persons by the complainant, the petition was dismissed on 18.02.2008.
Soon thereafter, the case was taken up by the Sessions Court and the charges were framed against the accused persons on 04.03.2008. Though their prayer for quashing the complaint had been Criminal Reference No. 1 of 2013 5 dismissed but the accused persons still chose to prefer another Criminal Miscellaneous Petition No. 22262 of 2008 before this Court on 14.04.2008. The prayer in this petition was for quashing of the order and the charge sheet dated 04.03.2008. The accused persons had been charge sheeted under Section 376 and 506 IPC. Unmindful of their earlier petition having been dismissed, the accused persons further prayed for direction to get the present matter investigated through some higher police officials of Vigilance Department or for handing over the case for investigation to CBI.
Notice of motion, in this petition, was issued on 01.09.2008. This petition then came up for hearing before various Benches of this Court. The case had to be adjourned from time to time for various reasons. On 20.11.2008, this Court observed that there was no stay of the proceedings before the trial Court and that the trial Court would be at liberty to continue the proceedings in accordance with law.
The petition was further adjourned on various dates either on the written request or otherwise on the request of counsel for the parties. Even the costs were imposed on 16.07.2010. When the reply still was not filed, the costs were increased to ` 2000/- on 14.09.2010. The Court did not hear the petition as the costs had not been deposited. Subsequently, again various adjournments followed till the matter was taken up for hearing on 04.08.2011. On this date, the Court found that there was no justification for request of adjournment as the case was pending since 2008. The Court allowed one last opportunity to the counsel for the petitioners to make his Criminal Reference No. 1 of 2013 6 submission. The case was adjourned to 09.12.2011. While adjouring the case, a positive directions were issued by this Court directing the trial Court to proceed with the trial by noticing that there was no interim order passed by this Court but still the trial has not been concluded. Copy of the order dated 04.08.2011 was sent to the concerned court for expeditious disposal of the trial.
When the case came up for hearing on 09.12.2011, which was the next date, this Court took serious notice as the trial had not made any progress. The Court noticed that the accused persons were seeking quashing of the charge sheet framed under Sections 376 and 506 IPC. The gravity of allegations were taken note and also the fact that trial Court was not proceeding with this case. This Court had then reiterated earlier directions to continue with the trial besides asking the trial Court to explain reasons as to why the trial has not made any progress despite orders. No report, however, was received from the trial Court and the case had to be adjourned. It appears that these directions were forgotten and finally, this petition was got dismissed as withdrawn by the accused persons on 09.08.2012 with liberty to take all these pleas before the trial court at an appropriate stage.
Ordinarily, this would have been the end of the matter but this was not to be so. It is now revealed that the then Additional Sessions Judge, Fast Track Court, Bathinda, who was dealing with the case had made a reference in the case on 18.02.2010 for seeking guidance and appropriate direction from this Court. The ground of reference was that the case had been committed to the Criminal Reference No. 1 of 2013 7 Court of Session without examining all the witnesses listed by the complainant. This was found to be in violation of provisions of Section 202 (2) of Cr.P.C. as per law laid down by this Court in Charanjit Singh versus Shingara Singh and others 1979 C.L.R. (Pb. & Haryana) 261. The case of Dev Dalbir Singh Sandhu versus State of Punjab and others 1982 (1) Recent Criminal Reports, 1 is also referred. It is also noticed that while the case was pending before the Court of Session, the complainant had desired to examine those witnesses, who were not examined by her before commitment of the case. Making reference to some observation recorded in the case that where remaining witnesses mentioned in the list had not been examined, it could fairly be concluded that the complainant had felt satisfied by examination of witnesses, who were examined, and had given up remaining witnesses. Accordingly, it was observed that it could not be urged that the Magistrate had violated the provisions of Section 202 (2) Cr.P.C. Some more judgments are noted and in this background, the reference order was framed on 18.02.2010 to seek guidance from this Court.
Surprisingly having made reference, the same was never sent to this Court as is now revealed from the proceedings. There is yet another twist in the story. A retired Ahlmad namely Rajinder Pal Dhir appeared before the Sessions Judge on 14.05.2012 alongwith the file titled Mukhtiaro Bai versus Sanjeev Kumar and others to point out that the reference made on 18.02.2010 was pending. Strangely, the Sessions Judge did not show any concern. He made no query from the retired Ahlmad as to how he was keeping this file. Criminal Reference No. 1 of 2013 8 Could the case files in cases as serious as rape be dealt with in causal manner. The Sessions Judge even did not make any effort to find as to why this reference was not sent. He also has not explained in any manner, how this case escaped his notice despite repeated directions by this Court to continue with the trial. Sessions Judge, cooly choose to assign this case to Sh. Harbans Singh Lekhi, the then Additional Sessions Judge (Adhoc) Fast Track Court, Bathinda being the successor Court for disposal of the same. It is, at this stage, that Sh. Harbans Singh Lekhi has found this order passed by Sh. Rajeev Malhotra, the judge, dealing with the case, who had made reference, which had not been sent to this Court. The Officer who was assigned the case had even sent assurance to this Court for early disposal. Of course later he has forwarded this reference to this Court, finding that the successor Court would not be in a position to review the order earlier passed. He has sent the reference to this Court in continuation of this order passed on 02.07.2012. The order dated 02.07.2012 reads as under:-
" Complainant Mukhtiaro Bai served and appeared through counsel Sh. K.C. Verma. Accused not served. A perusal of the record reveals that vide order dated 18.2.2010 passed by the Court of Sh. Rajiv Malhotra, Addl. Sessions Judge (Adhoc) (Fast Track Court), Bathinda, reference was ordered to be sent to the Hon'ble High Court but the same has not been sent for the reasons best known to the concerned Court/official and file remained in the custody of Sh. Rajinder Pal Dhir, Ahlmad of the said Court, who produced the same on 14.5.2012, before learned Sessions Judge, Bathinda and file was entrusted to this Court for disposal in accordance Criminal Reference No. 1 of 2013 9 with law and report was sought with regard to the order passed by the Hon'ble High Court in Crl. Misc. No. M- 22262 of 2008, and the same was submitted vide letter No. 121 dated 15.5.2012, with the assurance to dispose of the case expeditiously. But since this Court cannot review the order dated 18.2.2010 passed by the Court of Sh. Rajiv Malhotra, so letter of request is being sent to the Hon'ble Punjab and Haryana High Court for seeking guidance in the matter, so that further proceedings may be taken. File be put up on 20.7.2012 for awaiting order of Hon'ble High Court."
This order was followed by reference dated 12.12.2012. In the meantime, CRM No. 22262-M of 2008 filed by the accused persons had been dismissed as withdrawn on 09.08.2012. The trial Court, now dealing with the case has, accordingly, again sought response to the reference, which was initiated in the year 2010 but was never sent to this Court. It is in this background that this reference has now been placed on the judicial side for its disposal in accordance with law.
I am not only surprised but am feeling sad and disgusted at the turn of events in this case. Having drawn a reference, the then Additional Sessions Judge without any justification did not send the same to this Court. Shocking it may be to notice that retired Ahlmad appeared nearly after two years and produced this case file before the Court of Session, who conveniently choose to assign the case to the successor Court without raising even an eye lid as to where this file had been and how it was in the custody of retired Ahlmad for him to produce in this manner. This is despite the fact that this Court had Criminal Reference No. 1 of 2013 10 been telling the trial Court to proceed with the case from time to time.
Was there any need to seek any reference? This question may also arise in this case. There are precedents available which the trial Court could easily follow. A bit more application of mind and a bit of search would have made the trial Court to proceed with the case without wasting time in seeking guidance, which is the reference.
The issue has already been settled by the Hon'ble Supreme Court in Shivejee Singh versus Nagendra Tiwary and others 2010 (3) RCR (Criminal) 466. In this case, the Hon'ble Supreme Court has clearly observed that in criminal complaint before Magistrate in an offence triable by the Court of Sessions examination of all the witnesses cited in the complaint is not sine qua non for taking cognizance by a Magistrate and to issue process against the persons named as accused in the complaint. The Court in this case after making reference to large number of precedents has noticed that although Shah J. and Thomas J. appeared to express divergent views on the interpretation of provisions of Section 202 (2) but there is no discord between them that non examination of all the witnesses by the complainant would not vitiate the proceedings. The Hon'ble Supreme Court has clarified the legal position and in this regard has observed as under:-
14. Although, Shah, J. and Thomas, J. appear to have expressed divergent views on the interpretation of proviso to Section 202(2) but there is no discord between them that non examination of all the witnesses by the complainant would not vitiate the proceedings. With a view to clarify legal position on the subject, we deem it Criminal Reference No. 1 of 2013 11 proper to observe that even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2).
The Court has considered the case of Birendra K. Singh v. State of Bihar (2000) 8 SCC 498 in this regard and has observed:-
15. In Birendra K. Singh (supra), the only question considered by this Court was whether non-compliance of Section 197 Cr.P.C. was fatal to the prosecution. While holding that an objection regarding non-compliance of Section 197 can be raised only after the case is committed to the Court of Sessions, this Court observed that it was not made aware of the fact whether process was issued after complying with the provisions of Section
202. Therefore, that judgment cannot be read as laying down a proposition of law on interpretation of proviso to Section 202(2). That apart, it is important to mention that in Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC 500, a three-Judge Bench held that the decision in Birendra K. Singh's case does not lay down the correct law.
16. As a sequel to the above discussions, we hold that Criminal Reference No. 1 of 2013 12 examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202 (2)."
I find justification in the submissions made by the Amicus Curiae when he submits that for an offence under Section 376 IPC evidence of prosecutrix would be sufficient to summon and proceed against the person and even to base the conviction in some cases where her version does not suffer from some fatal discrepancies. In this regard, reference can be made to Ranjit Hazarkia vs. State of Assam, (1998) 8 SCC 635, wherein it is observed that the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where it inspires confidence.
This I think would leave enough guidance for the trial Court to proceed with the case irrespective of the fact whether all the witnesses were examined by the prosecution before the accused persons were committed for trial by the Magistrate.
Prosecution may have given up certain witnesses but still the Court cannot absolve itself of responsibility to arrive at just Criminal Reference No. 1 of 2013 13 decision in a case. Power of the Court to summon, which is emphasized with the use of word 'shall' in Section 311 Cr.P.C., and to examine or recall and re-examine any such person if his evidence appears to be essential to just decision of the case, may here be noticed to bring home the responsibilities on the Court in criminal trials. Observation made in the case of Dev Dalbir Singh Sandhu (supra), would be relevant and stand in support of above view.
The reference, order would show that the Court had taken note of certain precedents like Dev Dalbir Singh Sandhu's case (supra), Hardev Singh versus Alla Singh 2004 (2) RCR 128 and Rosy and others versus State of Kerala and others 2000 (1) Crimes 110. The judgment in the case of Rosy (supra) is a judgment passed by Apex Court. This is the same judgment, which is referred by the Supreme Court in Shivejee Singh (supra). His Lordship Thomas J. has expressed himself in very clean terms by observing that, "Thus, I have no doubt that the proviso incorporated in sub-section (2) of Section 202 of the Code is not merely to confer a discretion on the magistrate, but a compelling duty on his to perform in such cases. I wish to add that the magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the Court to summon such witnesses it is open to the magistrate to issue such summons, for, there is nothing in the code which prevents the magistrate from issuing such summons to the witnesses."
The Hon'ble Judge then has gone on to observe that, Criminal Reference No. 1 of 2013 14 "I reiterate that if the magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage regarding such omission the court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code."
The learned Judge has, thus, agreed with his Lordship M.B. Shah, J, who has held as under:-
"Hence, what emerges from the above discussion is:
I. (a) Under Section 200 Magistrate has jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present;
(b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses;
(c) In such case Court may issue process or dismiss the complaint.
II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by other person authorised by him.
(b) However, where it appears to the Magistrate Criminal Reference No. 1 of 2013 15 that the offence complained of is triable exclusively by the Court of Sessions, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the lime of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204(2) before issuance of the process.
(c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later."
Not only this, the Court has made reference to the provisions of Section 465 of Cr.P.C. to hold that objection with regard to such error, omission or irregularity in committal order in the case, was at a stage when evidence was already over. It is held that persons complaining of irregularity in committal proceedings under Section 202 (2) Cr.P.C. should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused.
Criminal Reference No. 1 of 2013 16
I fail to understand as to how these observations could be ignored to make reference by relying on the case of Charanjit Singh (supra), which was a decision of High Court. For this reason only, the observation in the case of Raj Pal Sood versus Rajinder Nath Vohra 1977 PLR 674 was to be considered in the light of view expressed by Apex Court.
No such objection was raised by the accused when they filed two quashing petitions. The trial Court has apparently failed to notice that objection was raised at belated stage and could be declined on this short ground. Besides the accused did not plead any prejudice.
Before parting with this reference, I would wish to consider the scope of reference to this Court by the trial Court. Section 395 Cr.P.C. is the enabling provisions for the Court to make reference to this Court. Where any Court is satisfied that the case pending before it involves a question as to validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of the opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court. Sub Section (2) of Section 395 Cr.P.C. has added to the scope of reference by Court of Session or a Metropolitan Magistrate in those cases where sub Section (1) Criminal Reference No. 1 of 2013 17 referred above do not apply to make reference to this Court where any question of law arising in the hearing of such case.
Whether there was a need to make reference in this case where the question of law is fairly settled may appear relevant. There were some precedents on the issue involved one of which was of binding nature. This question of law, if any, was affirmed in the case of Shivjee Singh (supra), which was decided on 06.07.2010 and is reported in the year 2010 itself. By making this reference and then by not following the same, which was not even forwarded to this Court, the trial Court has wasted nearly five years of time. The trial Court has failed to act in this case despite directions issued by this Court to proceed with the case. In my view, everyone has failed the cause of justice in this case.
Such serious infirmities cannot be glossed over. It is a case where a serious case of rape has remained unattended and un-actioned. There would be need to ascertain reasons as to why and how this has happened. There is a need to put remedial measure in place to avoid its reoccurrence. Let Sessions Judge, Vigilance held an enquiry into the background of this case as to how this case has been kept pending and how the reference made in year 2010 remained pending till 12.12.2012 and how the case file had remained with retired Ahlmad, who produced it before the Sessions Judge. Enquiry Officer would also enquire into the cause for which the Sessions Judge failed to take notice and action for the file being kept by retired Ahlmad. Each one responsible has to account for his lapse. This enquiry be held and completed within Criminal Reference No. 1 of 2013 18 three months from today and would pinpoint responsibility for the lapses on the part of all concerned. It is a serious issue and prima facie appears to have been done due to some hidden motives. Otherwise how could file be found with retired Ahlmad. The issue cannot be kept under a carpet as is done till now by the Sessions Judge.
Reference is answered in the above terms. The case should now be taken up for hearing and be disposed of without any further delay. Enquiry, as ordered, would not be a reason to delay or pend the trial. Copy of this order be handed over to Sessions Judge, Vigilance for holding enquiry by the Registry and be also forwarded to the Administrative Judge, Sessions Division, Bathinda to monitor the enquiry so that the same is brought to a finality and persons found guilty, if any, are brought to book.
March 12, 2013 ( RANJIT SINGH ) rts JUDGE