Punjab-Haryana High Court
Manjot Singh vs State Of Punjab And Ors on 2 February, 2018
Author: A. B. Chaudhari
Bench: A. B. Chaudhari
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRL. REVISION No.3747 OF 2017
DATE OF DECISION : 2ND FEBRUARY, 2018
Manjot Singh
.... Petitioner
Versus
State of Punjab and others
.... Respondents
CORAM : HON'BLE MR. JUSTICE A. B. CHAUDHARI
****
Present : Mr. P. S. Ahluwalia, Advocate and
Mr. Jasraj Singh, Advocate for the petitioner.
Mr. Dhruv Dayal, Sr. D.A.G. Punjab.
Mr. D. S. Pheruman, Advocate for respondent No.3.
Mr. Animesh Singh, Advocate for respondent No. 4.
****
A. B. CHAUDHARI, J.
1. By the present petition, petitioner Manjot Singh has put to
challenge order dated 29.09.2017 passed by Additional Sessions Judge,
Hoshiarpur in trial of FIR case No.91 dated 28.06.2012 (Annexure P-1),
by which the prayer by complainant for cross-examining the defence
witness DW-5 Jaspal Singh (respondent No.4 herein) was declined.
There is further prayer to pass such order as this Court deems fit and
proper in view of the facts and circumstances by invoking the inherent
power of this Court, under Section 482 Cr. P. C.
Facts:
2. A sessions trial arising out of FIR No.91 dated 28.06.2012
registered at police station Mukerian, District Hoshiarpur under Sections
302, 307, 323, 325, 506, 148, 149 IPC and 30 of Arms Act, is pending
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before the Court of Additional Sessions Judge, Hoshiarpur. The
prosecution case in the FIR No.91 is that Haqiqat Singh got his statement
recorded with the police station regarding murder of his nephew Gurpreet
Singh, receipt of injuries by him and the present petitioner Manjot Singh
by fire arms, caused by the accused persons. There is a cross-case at the
behest of the accused persons in the FIR No.91, registered against
Haqiqat Singh and others for commission of offences punishable under
Sections 452, 307, 326, 324, 427, 148, 149 and 506 IPC vide DDR
No.34A dated 02.07.2012, which is also being tried in the same Court.
During the trial in FIR No.91, one ASI Gurkirpal Singh was examined as
PW-11. In his examination-in-chief he proved various documents
prepared by him during the course of investigation and recovery made by
him pursuant to the disclosure statements made by the accused persons.
Thus in examination-in-chief (Annexure P-3) he deposed as per the
prosecution case. When the cross-examination started, he took
somersault and in answer to the questions virtually gave clean chit to the
accused persons. According to the petitioner, in cross-examination he
deposed in such a manner that he had appeared for all intents and purpose
as a defence witness for the accused persons and gone his way to help the
accused in the said murder case FIR No.91. He went to the extent that
the injuries have been caused by the accused in their defence, when that
was never the case of the prosecution. The petitioner then filed petition
under Section 311 Cr.P.C. to summon him for recalling the witness but
the trial Court dismissed the said application. The petitioner, therefore,
filed Criminal Revision No.4774 of 2016 and this Court vide order dated
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16.08.2017 set aside the order made by the trial Court and allowed ASI
Gurkirpal Singh to be recalled. The statement of accused No.3-Jaspal
Singh @ Pal (respondent No.4 herein) under Section 313 Cr.P.C. was
recorded on 29.11.2016 and another supplementary statement was
recorded on 02.12.2016. Accused No.3-Jaspal Singh @ Pal (respondent
No.4 herein) wanted himself to be examined as defence witness in the
said FIR No.91 and therefore he entered the witness box as DW-5.
Needless to say that in the cross-case DDR No.34A the statement of
accused No.3-Jaspal Singh was recorded which is to be found in the said
DDR case. DW-5-Jaspal Singh was cross-examined by the learned
Additional Public Prosecutor who according to the petitioner supported
the case of the accused persons. During the cross-examination counsel
for the petitioner-complainant requested that he wanted to cross-examine
the said witness DW-5 Jaspal Singh on behalf of the complainant. The
trial Court heard learned counsel for the rival parties on the issue and
passed the impugned order holding that under Section 311 Cr. P. C., the
complainant cannot be allowed to cross-examine the witness independent
of the public prosecutor.
3. In the alternative the petitioner has invoked the inherent
power of this Court under Section 482 Cr. P. C. in the peculiar facts of
the case. Hence, this petition.
4. This Court at the time of admission of the petition on the
first date of hearing made order dated 12.10.2017, which reads thus:
"Heard learned counsel for the petitioner.
He contended that one of the accused in the
Sessions trial entered the witness box and examined
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himself. According to him the concerned public
prosecutor did not perform his duty and therefore, the
complainant applied to the trial Court to allow him to
cross-examine the accused-respondent No.4-Jaspal
Singh who entered the witness box. The trial Court,
however, rejected the said application and in my
opinion rightly, since there is no provision in Cr.P.C.
to allow complainant in Sessions trial to cross-
examine any witness dehors Section 301 and 302 Cr.
P.C. which provides for a limited authority to the
complainant in sessions trial.
Learned counsel for the petitioner, however,
cited the decision in the case of Sister Mina Lalita
Baruwa Vs. State of Orissa, 2014(1) RCR (Criminal)
257 and submitted that the Apex Court had utilized
the bar under Section 311 Cr.P.C. to recall the
witness.
I think the said decision would not be
applicable since this is not the case of recall of the
witness. The order made by the trial Court also
cannot be faltered because the trial Court could not
have traveled beyond Sections 301 and 302 Cr.P.C.
Prima facie, in my opinion, the complainant/victim
has the only remedy to approach High Court under its
inherent power since Section 482 Cr.P.C. reads thus:
"482. Saving of inherent powers of High Court
- Nothing in this Code shall be deemed to limit
or affect the inherent powers of the High Court
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to make such orders as may be necessary to
give effect to any order under this Code, or to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice."
Hence the following question is framed for
consideration:
In the absence of any provision in the criminal
procedure code enabling the complainant/victim to
cross-examine the witness in addition to the public
prosecutor whether power under Section 482 Cr.P.C.
can be exercised to allow such request in case it is
found that there is failure of duty on the part of the
concerned public prosecutor or otherwise it is
expedient to secure the ends of justice ?
Notice of motion returnable for final disposal
be issued for 20.11.2017.
Passing of final order by the trial Court shall
remain stayed."
5. Thereafter, at the time of final hearing of the present petition
the learned counsel for the petitioner candidly admitted that the trial
Court did not commit any error in holding that it cannot travel beyond the
scope of Section 301 and 302 Cr. P.C. in relation to the limited authority
given to the counsel for the complainant.
Arguments:
6. Mr. P. S. Ahluwalia, Advocate for the petitioner submitted
that the conduct of the Sessions trial in FIR No.91 and the cross-case i.e.
DDR No.34A dated 02.07.2012, by one and the same Public Prosecutor
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has resulted into the miscarriage of justice to the victim/complainant. As
was clear from the fact that this Court found that the application for
further examination of PW-11 ASI Gurkirpal Singh-Investigating
Officer, was made after two months, when as a matter of fact during the
course of recording of evidence of PW-11 immediately he was required
to be examined. According to him, the gap of two months for making the
application for re-examination under Section 311 Cr. P. C., was unfair to
the victim/complainant and at any rate it was essential to have the said
witness PW-11 re-examined as he had taken somersault in his cross-
examination by favouring the accused persons in the said trial. He
submitted that this Court then also called the explanation from the Public
Prosecutor vide its order dated 16.08.2017 passed in CRR-4774-2016 and
allowed the request for requiring of PW-11 for being examined and re-
examined. Learned counsel for the petitioner then contended that the
power of this Court under Section 482 Cr. P. C. is being invoked by the
petitioner as according to him the Public Prosecutor was acting against
the interest of the complainant/victim and that is clear from the reading of
the cross-examination of DW-5 Jaspal Singh @ Pal-accused No.3
(respondent No.4 herein). He further submitted that the Public
Prosecutor started asking the questions and giving suggestions which
would favour the accused persons in the trial FIR No.91, which can be
seen from the reading of cross-examination of DW-5 Jaspal Singh @ Pal.
He submitted that the Public Prosecutor also started referring to statement
of Jaspal Singh recorded under Section 161 in cross case DDR No.34A.
It could not have been done at all, at least by the Public Prosecutor, since
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the statement under Section 161 Cr. P. C. in the cross-case could not have
been utilized by the Public Prosecutor which purportedly favoured the
accused persons. Learned counsel for the petitioner submitted that the
rights of the victim/complainant having been recognized by the Apex
Court over a period of time and if not under Section 301/302 Cr. P. C.,
the inherent power of the High Court under Section 482 Cr. P. C. is
required to be utilized in the peculiar facts of the present case. In support
of his submissions learned counsel for the petitioner cited judgment of
Hon'ble the Supreme Court in the case of Popular Muthiah versus State,
2006(3) RCR (CriminL), 527.
7. Per contra, Mr. D. S. Pheruman, learned counsel for the
respondents opposed the petition. He submitted that the order under
challenge is an interlocutory order and, therefore, the present revision
petition is not maintainable and should be dismissed.
8. On the question of submission regarding interlocutory order
learned counsel for both the parties cited several decisions but it is not
necessary for me to refer to any of those decisions because the impugned
order holding that the Sessions Court/Trial Court did not have power to
extend the scope of Section 301 IPC, is legal, correct and proper and held
accordingly by me in the order dated 12.10.2017.
9. The next submission made by Mr. Pheruman is that the
present petition then will be required to be dismissed as the petitioner has
not filed separate petition claiming relief under Section 482 Cr.P.C. for
invoking the inherent powers of this Court. At any rate according to him
when the remedy of revision is prohibited by virtue of nature of the
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interlocutory order, this Court would not be able to exercise the power
under Section 482 Cr. P. C. indirectly. That which cannot be done
directly cannot be done indirectly. In support of his above submission
learned counsel for the respondents cited two judgment of Hon'ble the
Supreme Court i.e. Krishnan versus Krishnaveni & another, 1997(1)
RCR (Criminal) 724; Gian Singh versus State of Punjab & another,
2012 (4) RCR (Criminal) 543 and one judgment of Hon'ble Kerala High
Court i.e. Saidevan Thampi versus State of Kerala, 2013(4) Ker L.J.,
611.
10. Learned counsel for the respondents then contended that the
scheme of Section 301 relating to the Sessions case is as clear as it can
be. In that case no complainant or his counsel can take over sessions trial
or the job of the Public Prosecutor and the provisions regarding the right
of the Public Prosecutor for the State to open the prosecution case and to
conduct the same in accordance with his wisdom, cannot ignored. The
only facility given to the complainant/victim is to file written
submissions and nothing more. He then submitted that if the
complainant/victim has any grievance about the Public Prosecutor in the
matter of the cases, this Court is not the forum to say so and he can
always seek redressal of his grievance from the law department of the
State. Mr. Pheruman, has relied upon several decisions relating to the
proposition of law that it is only the Public Prosecutor who has to
conduct a State case and none else, including the complainant/victim.
None can be allowed to persecute the accused persons. He also referred
Section 24 of Cr.P.C. He then cited the paras No.76 and 77 from the
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judgment of the Supreme Court in the case of Sidharth Vashisth @
Manu Sharma vs State Of Delhi, 2010 (2) RCR (Criminal) 692.
11. Learned counsel for the respondents finally prayed for
dismissal of the present petition.
Consideration
12. At the outset, in the light of the preamble of the present
judgment, the only question that is required to be decided is the one
framed by this Court on 12.10.2017 is as under:
"In the absence of any provision in the criminal
procedure code enabling the complainant/victim to
cross-examine the witness in addition to the public
prosecutor whether power under Section 482
Cr.P.C. can be exercised to allow such request in
case it is found that there is failure of duty on the
part of the concerned public prosecutor or otherwise
it is expedient to secure the ends of justice ?"
13. The question is modified as under:
Whether the High Court, without filing of a formal separate
petition, in its inherent power under Section 482 Cr.P.C., would be
entitled to allow a request by the complainant/victim to cross-examine
the witness in the trial in addition to the public prosecutor if it is found
that the same is expedient in order to meet the ends of justice ?
14. In order to examine the scope of power under Section 482
Cr. P. C., this Court finds that the question is no more res integra and has
been decided by the Apex Court in some of the judgments. In the case of
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Krishnan versus Krishnaveni & another, 1997(1) RCR (Criminal) 724
the Apex Court stated thus in para 14:
"14. In view of the above discussion, we hold that
though the revision before the High Court under sub-
section (1) of Section 397 is prohibited by sub-
section (3) thereof, inherent power of the High Court
is still available under Section 482 of the Code and
as it is paramount power of continuous
superintendence of the High Court under Section
483, the High Court is justified in interfering with
the order leading to miscarriage of justice and in
setting aside the order of the courts below."
15. In the case of Gian Singh versus State of Punjab &
another, 2012 (4) RCR (Criminal) 543 a three judges' Bench reviewed
the entire law and recorded the following proposition of law in respect of
the question in following paragraphs:
"48. The question is with regard to the inherent
power of the High Court in quashing the criminal
proceedings against an offender who has settled his
dispute with the victim of the crime but the crime in
which he is allegedly involved is not compoundable
under Section 320 of the Code.
49. Section 482 of the Code, as its very language
suggests, saves the inherent power of the High Court
which it has by virtue of it being a superior court to
prevent abuse of the process of any court or
otherwise to secure the ends of justice. It begins with
the words, 'nothing in this Code' which means that
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the provision is an overriding provision. These words
leave no manner of doubt that none of the provisions
of the Code limits or restricts the inherent power.
The guideline for exercise of such power is provided
in Section 482 itself i.e., to prevent abuse of the
process of any court or otherwise to secure the ends
of justice. As has been repeatedly stated that Section
482 confers no new powers on High Court; it merely
safeguards existing inherent powers possessed by
High Court necessary to prevent abuse of the process
of any Court or to secure the ends of justice. It is
equally well settled that the power is not to be
resorted to if there is specific provision in the Code
for the redress of the grievance of an aggrieved
party. It should be exercised very sparingly and it
should not be exercised as against the express bar of
law engrafted in any other provision of the Code.
50. In different situations, the inherent power may be
exercised in different ways to achieve its ultimate
objective. Formation of opinion by the High Court
before it exercises inherent power under Section 482
on either of the twin objectives, (i) to prevent abuse
of the process of any court or (ii) to secure the ends
of justice, is a sine qua non.
51. In the very nature of its constitution, it is the
judicial obligation of the High Court to undo a wrong
in course of administration of justice or to prevent
continuation of unnecessary judicial process. This is
founded on the legal maxim quando lex aliquid alicui
concedit, conceditur et id sine qua res ipsa esse non
potest. The full import of which is whenever
anything is authorised, and especially if, as a matter
of duty, required to be done by law, it is found
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impossible to do that thing unless something else not
authorised in express terms be also done, may also
be done, then that something else will be supplied by
necessary intendment. Ex debito justitiae is inbuilt in
such exercise; the whole idea is to do real, complete
and substantial justice for which it exists. The power
possessed by the High Court under Section 482 of
the Code is of wide amplitude but requires exercise
with great caution and circumspection."
16. In the case of Saidevan Thampi versus State of Kerala,
2013(4) Ker. L. J. 611 upon conspectus of number of judgments a single
Judge of Kerela High Court held thus in paragraphs 87 and 88:
"87 It is well settled by now that Section 482 of
Cr. P. C. does not confer any new power on the
Court. It only declares the power which already
existed in the Code. The declaration was necessary
to dispel any doubt that apart from the powers
enumerated in the Code the Courts enjoyed no other
power. Section 482 of the Cr. P. C. in fact only
recognizes inherent power in every Court to exercise
its powers to do justice. The exercise of power under
Section 482 of Cr. P. C. is contemplated under three
circumstances. They are,
(i) to give effect to an order under the Code,
(ii) to prevent abuse of process of Court,
(iii) to secure the ends of justice.
Among the above three, (ii) and (ii) work in both
ways. Those powers are exercised either to prevent
injustice being done to a party as well as ensuring
that a just cause is not thrown out unjustly and that
grievance of a person does not go unredressed.
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88. One may now refer the decisions in this
regard. In the decision reported in (Dinesh Dutt
Joshi v. State of Rajasthan (2001) 8 SCC 570), it
was held as follows:
"4. Section 482 of the Code of Criminal
Procedure confers upon the High Court
inherent powers to make such orders as may
be necessary to give effect to any order under
the Code, or to prevent abuse of the process
of any court or otherwise to secure the ends
of justice. It is a well-established principle of
law that every court has inherent power to act
ex debito justitiae -- to do that real and
substantial justice for the administration of
which alone it exists or to prevent abuse of
the process of the court. The principle
embodied in section is based upon the
maxim: quando lex aliquid alicuiconcedit,
concedere videtur id quo resipsaesse non
potest i.e. When the law gives anything to
anyone, it gives also all those things without
which the thing itself would be unavailable.
Section does not confer any new power, but
only declares that the High Court possesses
inherent powers for the purposes specified in
the section. As lacunae are sometimes found
in procedural law, the section has been
embodied to cover such lacunae wherever
they are discovered. The use of extraordinary
powers conferred upon the High Court under
this section are however required to be
reserved, as far as possible for extraordinary
cases.
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17. To repeat, this Court has already found that the trial Court
did not have any power to grant relief to the petitioner-complainant with
reference to its power under Section 301 Cr.P.C. and therefore, the
counsel for the petitioner also conceded to that aspect of the matter.
Consequently, the revision against the said order has been held to be not
maintainable vide interim order dated 12.10.2017 made by this Court
cited (supra).
18. The title of the petition however as under :
"Petition under Section 401 read with 482 of the
Code of Criminal Procedure for setting aside of the
impugned order dated 29.09.2017 passed by the
Court of Ld. Additional Sessions Judge,
Hoshiarpur, in the trial pertaining to case FIR No.91
dated 28.06.2012 (Annexure P/1) registered at
Police Station Mukerian, District Hoshiarpur, under
Section 302, 307, 323, 325, 506, 148, 149 of the
Indian Penal Code, whereby the counsel for the
complainant/victim has been denied the permission
to cross-examine a defence witness DW-5 Jaspal
Singh (Respondent-accused No.4) appearing as his
own witness in defence, in view of the facts and
circumstances of the case, in the interest of justice."
19. Learned counsel for the respondent vehemently opposed
exercise of power under Section 482 Cr. P. C. on multiple grounds. He
submitted that there cannot be omnibus prayers with omnibus provisions
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of law in one petition. The present petition has been filed essentially to
challenge the order (Annexure P-1) made by the trial Court holding that it
has no power to allow complainant victim to cross-examine the witness.
The revision petition must come to an end there only. Since there is no
formally filed separate petition under Section 482 Cr. P. C., this petition
cannot be treated as the one under Section 482 Cr. P. C. for passing any
orders. Mr. Pheruman also submitted that the provisions of Cr. P. C.
relating to the role of the Public Prosecutor and his right to conduct the
prosecution and examine and cross-examine the witness has been
repeatedly upheld by the Apex Court so also by the Gujarat High Court
and therefore Court should not ignore the "will" of the parliament and the
implementation of law promulgated by the Parliament. Citing the
decisions in the case of Sidharth Vashisth (supra) and in particular paras
76 and 77 thereof; Shiv Kumar (supra) and Hitendra Vishnu Thakur
and others (supra) he submitted that a Public Prosecutor of the State
Government may or may not agree with the reasons given by the
Investigating Officer and if a private counsel for complainant/victim is
allowed free hand to conduct prosecution he would obviously bring the
case to conviction or persecution of the accused persons. That is why
this Court should not interfere. Paras 76 and 77 in the case of Sidharth
Vashisth (supra) read thus:
76. A public prosecutor is appointed under Section
24 of the Code of Criminal Procedure. Thus, Public
Prosecutor is a statutory office of high regard. This
Court has observed the role of a prosecutor in Shiv
Kumar v. Hukam Chand and Anr. 1999(4) RCR
(Criminal) 190 : (1999) 7 SCC 467 as follows:
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"13. From the scheme of the Code the
legislative intention is manifestly clear
that prosecution in a Sessions Court
cannot be conducted by any one other
than the Public Prosecutor. The
legislature reminds the State that the
policy must strictly conform to fairness
in the trial of an accused in a Sessions
Court. A Public Prosecutor is not
expected to show a thirst to reach the
case in the conviction of the accused
somehow or the other irrespective of the
true facts involved in the case. The
expected attitude of the Public
Prosecutor while conducting
prosecution must be couched in fairness
not only to the Court and to the
investigating agencies but to the
accused as well. If an accused is entitled
to any legitimate benefit during trial the
Public Prosecutor should not
scuttle/conceal it. On the contrary, it is
the duty of the Public Prosecutor to
winch it to the force and make it
available to the accused. Even if the
defence counsel overlooked it, Public
Prosecutor has the added responsibility
to bring it to the notice of the Court if it
comes to his knowledge, A private
counsel, if allowed frees hand to
conduct prosecution would focus on
bringing the case to conviction even if it
is not a fit case to be so convicted. That
is the reason why Parliament applied a
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bridle on him and subjected his role
strictly to the instructions given by the
Public Prosecutor.
This Court has also held that the prosecutor
does not represent the investigation agencies, but
the State. This Court in Hitendra Vishnu Thakur
and Ors. v. State of Maharashtra and Ors. 1994
(3) RCR (Criminal) 156 : (1994) 4 SCC 602 held:
"22. ...A public prosecutor is an
important officer of the State Govt. and
is appointed by the State under the
Criminal Procedure Code. He is not a
part of the investigating agency. He is
an independent statutory authority. The
public prosecutor is expected to
independently apply his mind to the
request of the investigating agency
before submitting a report to the court
for extension of time with a view to
enable the investigating agency to
complete the investigation. He is not
merely a post office or a forwarding
agency. A public prosecutor may or
may not agree with the reasons given by
the investigating officer for seeking
extension of time and may find that the
investigation had not progressed in the
proper manner or that there has been
unnecessary, deliberate or avoidable
delay in completing the investigation."
Therefore, a public prosecutor has wider
set of duties than to merely ensure that
the accused is punished, the duties of
ensuring fair play in the proceedings, all
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relevant facts are brought before the
court in order for the determination of
truth and justice for all the parties
including the victims. It must be noted
that these duties do not allow the
prosecutor to be lax in any of his duties
as against the accused.
77. It is also important to note the active role
which is to be played by a court in a criminal trial.
The court must ensure that the prosecutor is doing
his duties to the utmost level of efficiency and fair
play. This Court, in Zahira Habibulla H. Sheikh
and Anr. v. State of Gujarat and Ors. 2004 (2)
RCR (Criminal) 836 :2004(3) Apex Criminal 46 :
(2004) 4 SCC 158, has noted the daunting task of a
court in a criminal trial while noting the most
pertinent provisions of the law. It is useful to reproduce
the passage in full:
"43. The Courts have to take a
participatory role in a trial. They are not
expected to be tape recorders to record
whatever is being stated by the
witnesses. Section 311 of the Code and
Section 165 of the Evidence Act confer
vast and wide powers on Presiding
Officers of Court to elicit all necessary
materials by playing an active role in the
evidence collecting process. They have
to monitor the proceedings in aid of
justice in a manner that something,
which is not relevant, is not
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unnecessarily brought into record. Even
if the prosecutor is remiss in some ways,
it can control the proceedings
effectively so that ultimate objective i.e.
truth is arrived at. This becomes more
necessary the Court has reasons to
believe that the prosecuting agency or
the prosecutor is not acting in the
requisite manner. The Court cannot
afford to be wishfully or pretend to be
blissfully ignorant or oblivious to such
serious pitfalls or dereliction of duty on
the part of the prosecuting agency. The
prosecutor who does not act fairly and
acts more like a counsel for the defence
is a liability to the fair judicial system,
and Courts could not also play into the
hands of such prosecuting agency
showing indifference or adopting an
attitude of total aloofness.
20. It is undoubtedly true that the petitioner has made omnibus
prayers taking recourse to both the provisions namely Section 401 and
482 Cr. P. C. in the aforesaid one petition. As earlier stated, the revision
petition cannot be entertained for the reasons stated by me above,
particularly because even the counsel for the petitioner has conceded
absence of power in the trial Court. The question, however, is whether in
the absence of a properly framed and properly filed petition under
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Section 482 Cr. P. C., without any separate registration thereof, this
Court would be entitled to exercise the inherent power. I think the
question has been dealt with by the Apex Court in the case of Popular
Muthiah (supra) explicitly and therefore, it will be better to quote the
following paragraphs from the said judgment, which read thus:
24. The High Court while, thus, exercising its
revisional or appellate power, may exercise its
inherent powers. Inherent power of the High Court
can be exercised, it is trite, both in relation to
substantive as also procedural matters.
25. In respect of the incidental or supplemental
power, evidently, the High Court can exercise its
inherent jurisdiction irrespective of the nature of
the proceedings. It is not trammeled by procedural
restrictions in that
(i) power can be exercised suo motu in the interest
of justice. If such a power is not conceded, it may
even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently
with the appellate or revisional jurisdiction and no
formal application is required to be filed therefore.
(iii) It is, however, beyond any doubt that the
power under Section 482 of the Code of Criminal
Procedure is not unlimited. It can inter alia be
exercised where the Code is silent where the power
of the court is not treated as exhaustive, or there is
a specific provision in the Code; or the statute does
not fall within the purview of the Code because it
involves application of a special law. It acts ex
debito justitiae. It can, thus, do real and substantial
justice for which alone it exists.
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This Court in Dinesh Dutt Joshi v. State of
Rajasthan and Another, [(2001) 8 SCC 570]
while dealing with the inherent powers of the High
Court held:
"The principle embodied in the section is
based upon the maxim: quando lex aliquid
alicui concedit, concedere videtur et id sine
quo res ipsae esse non potest i.e. when the
law gives anything to anyone, it gives also
all those things without which the thing
itself would be unavailable. The section
does not confer any new power, but only
declares that the High Court possesses
inherent powers for the purposes specified
in the section. As lacunae are sometimes
found in procedural law, the section has
been embodied to cover such lacunae
wherever they are discovered. The use of
extraordinary powers conferred upon the
High Court under this section are however
required to be reserved, as far as possible,
for extraordinary cases."
21. It is clear from the observations made in para 25 (ii) that no
formal application is required to be filed under Section 482 Cr. P. C. and
this Court would be entitled to act ex debito justitiae to do real and
substantial justice for which along it exists. I therefore, hold that the
objection raised by Mr. Pheruman, learned counsel for the respondent,
with due respect cannot be accepted.
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22. The next question is that whether in the peculiar facts of the
present case, this Court should exercise the power under Section
482 Cr. P. C. ?
23. Looking back to the previous applications and the orders, it
is seen from the record that the petitioner-Manjot Singh had applied to
the trial Court purportedly under Section 311 Cr. P. C. to summon the
witness PW-11 ASI Gurkirpal Singh the IO himself for re-examination.
He was IO and supported the prosecution case. But he took a somersault
and in the cross-examination by the defence, started supporting the
accused persons in FIR No.91. That was obviously to the detriment of
the complainant/victim and it was expected of the prosecution to have
filed its application immediately for recall of the witness. But nothing
happened. The application was filed by the Public Prosecutor after two
months. This Court thereafter noted the conduct of the Public Prosecutor
as well as the investigating officer ASI Gurkirpal Singh (PW-11), while
deciding Criminal Revision No.4774 of 2016 and sought explanation
from the Public Prosecutor and also held that PW-11 ASI Gurkirpal
Singh was not supposed to evade the test of re-examination/examination
if he had decided to work against the interest of the State in a criminal
offence. Accordingly, the request for re-examination was allowed. The
above background facts cannot be ignored for further events which have
occurred.
24. As earlier stated Jaspal Singh-accused No.3 (respondent
No.4 herein) in FIR No.91 before the trial Court examined himself by the
defence witness as DW-5-Jaspal Singh and deposed as under :
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"DW-5 Jaspal Singh, accused, aged 54 years,
son of Charan Singh R/o village Mansoorpur, PS
Mukerian, District Hoshiarpur on SA.
I am permanent resident of village
Mansoorpur. I was earlier tractor driver of
Bhupinder Singh, accused. Bhupinder Singh,
Baldev Singh, Daljit Singh @ Sethi and Maninder
Singh belongs to one party. In my presence, there
was nothing of any sought of enmity. Parkash Kaur
is paternal aunt of Bhupinder Singh. Parkash Kaur
is having a landed property in village Mansoorpur.
One person named Kugga used to cultivate the land
of Parkash Kaur earlier, thereafter, the land was
given on lease to Mahabir singh, Sarpanch and he
was in cultivating possession of the same. The said
land is about 3 acres. No agreement to sell was
scribed in my presence regarding the land of
Parkash Kaur. I do not know, about any civil
litigation in respect of land of Parkash Kaur.
Haqiqat Singh, Gurpreet Singh and Manjot Singh
were helping in cultivating the land of Mahabir
Singh, Sarpanch.
On 28.06.2012, I was at diary farm of
Bhupinder Singh. I came about 9.30 AM at the
house of Bhuipinder Singh at that time in his house,
Bhupinder Singh, Baldev Singh, Daljit Singh and
Maninder Singh were sitting in his house. All the
accused person were planning that when the
partymen of Mahabir Singh will approach near their
house, they will stop them and teach them a lesson.
At 9.40 AM, Haqiqat Singh, Shanty and Shelly
were going towards the land of Hira Singh. When
Haqiqat Singh etc. reached near the house of
Bhupinder Singh, then Baldev Singh and Sethi
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raised the lalkara. After that, Bhupinder Singh fired
gun shot which hit on the head of Shanty. Then
Bhupinder Singh, Mannu, Sethi, Baldev Singh and I
came inside the house of Bhupinder Singh. I was
behind all the persons and somebody hit on the gate
and the same hit my head and I do not know what
happened after that, as I became unconscious. No
other injury was inflicted by any of the person after
that. I became conscious after three days of the
occurrence at SPS Apollo Hospital Ludhiana.
Xxxx deferred at the request of ld. APP as he wants
to go through the both the files before cross-
examination of the accused.
RO&AC (Priya Sood)
ASJ/HSP/08.12.2016
25. DW-5-Jaspal Singh was cross-examined by the Public
Prosecutor on 09.12.2016 and 13.12.2016 and the entire cross-
examination is quoted below:
Xxxn by Shri Varinder Kumar, APP for the State
assisted by Shri MP Singh counsel for complainant.
I was present at the spot at the time of
occurrence. I am not a witness of prosecution in the
case State Vs Dilpreet Singh which is also pending
in this court. I was medico-legally examined
because of the injury suffered by me. However, the
MLR does not bear my signatures. At the time of
my MLR the doctor did not ask me the details of
my injuries. I did not give any statement to the
police during investigation of case State Vs Dilpreet
Singh on 17.07.2012. It is wrong to suggest that on
17.07.2012, I got recorded statement mark PX
before police in the case State Vs Dilpreet Singh. It
is wrong to suggest that on 17.07.2012 I gave any
statement to the police that on 28.06.2012 at about
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10.30 AM, I was present in the courtyard of the
house of Bhupinder Singh alongwith Baldev Singh,
his wife Basant Kaur Rupinder Kaur wife of
Bhupinder Singh and his son Mehtab aged about 10
years and mother Mohinder Kaur. It is further
wrong to suggest that on 17.07.2012 I gave my
statement to the police that in the meantime,
Mahabir Singh Sarpanch, Preet Multani @ Pamma.
At this stage, that Ld. Counsel for
complainant has requested that the complainant side
does not to confront Jaspal Singh with any
statement dated 17.07.2012 purported to have been
recorded in the case State Vs Dilpreet Singh
whereas the ld. APP has requested that he wants to
further confront with the said statement. On
account of opposing request made by APP and
counsel for complainant, the case is adjourned to
12.12.2016 to settle said point.
RO&AC
(Priya Sood)
ASJ/Hsp./09.12.2016
The name of paternal aunt (Tayi) of
Bhupinder Singh is Parkash Kaur. Parkash Kaur
was having 9 and half kilas of land and now she is
having 3 kilas which is situated at village
Mansoorpur. Earlier, Ghuga was cultivating the
said land. Now, Mahabir Singh Sarpanch is
cultivating the 3 kilas of land. The remaining land
is cultivated by Baldev Singh. It is correct that
Sarpanch Mahabir Singh and Haqiqat Singh are
having good relations with each other. I was
present at the time of occurrence of this case. It is
wrong to suggest that both the parties suffered in
this occurrence. Volt. Stated only Haqiqat Singh,
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shanty and Manjot Singh received injuries due to
five/six bullets injuries. It is wrong to suggest that I
was armed with gandasi at the time of occurrence
and I caused injuries to Haqiqat Singh with my
gandasi which hit on his left elbow. I also received
two injuries in the present occurrence, one on my
forehead and on my right eye. These injuries were
not caused to me by anyone. Volt. I received
injuries by hitting the gate. It is wrong to suggest
that I have not received that injury as alleged by me
by hitting with the gate. It is wrong to suggest that I
am giving statement in the court to save myself.
I was working as Driver with Bhuipinder
Singh, accused for the last five-six years. I used to
assist Bhupinder Singh in agricultural and other
domestic work. I have seen the land of Parkash
Kaur measuring 23 kanal 13 marlas. I and
Bhupinder Singh never cultivating said land. For
one year prior to this occurrence the land was be
cultivated by Mahabir Singh and prior to him it was
cultivated by Ghuga. A motor is installed in the
said land. Mahabir Singh was in control and
possession of the said motor. I know Baldev Singh,
co-accused, who is cousin of Bhupinder Singh.
Baldev Singh used to reside with Bhupinder Singh
as and when he used to come from abroad. Baldev
Singh had come to India two/two and a half months
prior to the occurrence. On the day of occurrence, I
reached the house of Bhupinder Singh at 10.40 AM
again said 9.40 AM. At that time, Baldev Singh
and Daljit Singh @ Sethi stated that Haquiqat Singh
etc have come outside. On the raising of lalkara by
Baldev Singh and Daljit Singh, all of us came out
on the road. Haqiqat Singh etc were three persons
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i.e. Haqiqat Singh, Shanty and Manjot Singh. All
of them received fire arm injuries. I had fallen just
outside the gate when my head struck against the
gate. I regained full consciousness in Apollo
Hospital Ludhiana. However, I have faint idea that
I was taken to Dogra Hospital Mukerian also.
At this stage, the Ld. Counsel for
complainant Shri MP Singh has requested that he
also wants to cross-examine the witness on behalf
of complainant. The Ld. Counsel for co-accused
has opposed the said request. Both the counsels
seeks some time to produce the case law in respect
of their respective cases."
RO&AC
(Priya Sood)
ASJ/Hsp./12.12.2016
26. Perusal of the entire cross-examination made by the Public
Prosecutor shows that the story of the accused persons in the present FIR
No.91 trial which they had stated in DDR No.34A i.e. the cross case filed
by them, was put by the Public Prosecutor to DW-5-Jaspal Singh in the
cross-examination. It is also seen that the cross-examination on these
line tends to save the accused persons which is clear from the suggestions
given by the Public Prosecutor. At the end of the cross-examination by
the Public Prosecutor, request of the complainant's counsel for further
cross-examination was declined and hence this petition was filed.
27. In the first place, it is seen that in the cross-case as well as in
the main case i.e. FIR No.91 the same Public Prosecutor has been
appearing. In the case of Balbir vs. State of Haryana, 1999(4) RCR
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(Criminal) 839, the Apex Court has had to say thus in paragraph 16
which I quote hereunder:
"16. We are afraid, in the present case even that
much which was directed in Harjinder Singh's case
(supra) cannot be permitted, for, both versions here
are diametrically divergent without anything in
common except that the murdered person was the
same. In such cases the most appropriate procedure
to be followed by a Sessions Judge should be the
same as followed in the present case, i.e., the two
trials were separately conducted one after the other
by the same court before the same judge and
judgments in both cases were separately
pronounced on the same day. No. doubt the
Sessions Judge should take care that he would
confine his judgment in one case only to the
evidence adduced in that particular case. We may
add, if more than one Public Prosecutor are
available at the same station it is advisable that the
Public Prosecutor who prosecuted one case should
avoid prosecuting the other case."
28. Also in the case of Sudhir vs. State of M.P. 2001(1) RCR
(Criminal) 743 the Apex Court in paras 9, 10 & 11 held thus:
9. It is a salutary practice, when two criminal
cases relate to the same incident, they are tried and
disposed of by the same court by pronouncing
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judgments on the same day. Such two different
versions of the same incident resulting in two
criminal cases are compendiously called "case and
counter case" by some High Courts and "cross cases"
by some other High Courts. Way back in nineteen
hundred and twenties a Division Bench of the
Madras High Court (Waller, and Cornish, JJ) made a
suggestion (In Re Goriparthi Krishtamma - 1929
Madras Weekly Notes 881) that "a case and counter
case arising out of the same affair should always, if
practicable, be tried by the same court, and each
party would represent themselves as having been the
innocent victims of the aggression of the other."
10. Close to its heels Jackson, J, made an
exhortation to the then legislature to provide a
mechanism as a statutory provision for trial of both
cases by the same court (vide Krishna Pannadi vs.
Emperor AIR 1930 Madras 190). The learned judge
said thus:
"There is no clear law as regards the
procedure in counter cases, a defect
which the legislature ought to remedy. It
is a generally recognized rule that such
cases should be tried in quick succession
by the same Judge, who should not
pronounce judgment till the hearing of
both cases is finished."
11. We are unable to understand why the
legislature is still parrying to incorporate such a
salubrious practice as a statutory requirement in the
Code. The practical reasons for adopting a procedure
that such cross cases shall be tried by the same court,
can be summarised thus: (I) It staves off the danger
of an accused being convicted before his whole case
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is before the court. (2) It deters conflicting judgments
being delivered upon similar facts; and (3) In reality
the case and the counter case are, to all intents and
purposes, different or conflicting versions of one
incident.
29. In the light of the salutary principle set out by the Apex
Court as above, I think the Investigating Officer has not been doing his
duty correctly regarding prosecution filed by him and therefore, there is a
reason to believe that the complainant/victim could be put to prejudice
and detriment in the above peculiar background facts. In that view of the
matter, this Court is convinced that power under Section 482 Cr. P. C. ex
debito justitiae ought to be exercised by this Court to allow the
complainant-victim to cross-examine DW-5-Jaspal Singh-respondent
No.4 herein after the recording of evidence till 13.12.2016.
30. In the result I make the following order:
ORDER
(i) CRL. REVISION No.3747 OF 2017 is disposed of.
(ii) In exercise of power under Section 482 Cr. P. C. this Court allows the petitioner/complainant/victim/counsel for the petitioner to cross-examine the defence witness DW-5 Jaspal Singh after the proceedings of 13.12.2016.
(iii) The trial Court to proceed accordingly.
2nd FEBRUARY, 2018 (A. B. CHAUDHARI)
'raj' JUDGE
Whether speaking/reasoned: Yes
Whether Reportable: Yes
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