Punjab-Haryana High Court
Darshan Singh vs Central Bureau Of Investigation on 19 March, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No. M-33033 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No. M-33033 of 2010
Date of Decision:-19.3.2012
Darshan Singh ...Petitioner
Versus
Central Bureau of Investigation ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.R.S.Rai, Senior Advocate with
Mr.Preetinder Singh Ahluwalia, Advocate for the petitioner.
Mr.Sumeet Goel, Advocate for the respondent.
Mehinder Singh Sullar, J. (Oral)
Tersenessly, the facts, which need a necessary mention, relevant for the limited purpose of deciding the sole controversy, involved in the instant petition and oozing out, from the record, are that, a criminal case was registered against the accused, vide FIR No.10 dated 8.2.1993, on accusation of having committed the offences punishable under Sections 364, 302 and 201 IPC and Sections 3 to 5 of the Terrorists & Disruptive Activities (Prevention) Act, 1987 (hereinafter to be referred as "the TADA Act"), by the police of Police Station Roop Nagar, District Ropar, with regard to the abduction and murder of Kulwant Singh, Advocate, his wife and a child.
2. Taking into consideration the seriousness of the crime, the Hon'ble Apex Court directed the CBI to investigate the matter. The trial of the case was transferred from the Designated Court, Ropar to the Designated Court at Chandigarh by the Hon'ble Supreme Court, vide order dated 10.5.1996. After the completion of formalities, the Designated Court, Chandigarh framed the charges against the accused, by virtue of detailed order dated 9.4.2001 and slated the case for prosecution evidence. The prosecution, after examining 160 witnesses, closed its evidence on 13.4.2010 and statements of the accused were recorded under CRM No. M-33033 of 2010 -2- Section 313 Cr.PC. The petitioner did not raise any objection of any kind in this respect and permitted the trial to complete. After a lapse of many years, he moved an application dated 29.9.2010 (Annexure P3) to discharge him on account of non- compliance of section 193 Cr.PC. His prayer was refuted by the CBI.
3. Sequelly, the trial Judge, after taking into consideration the entire material on record, dismissed the application, by way of impugned order dated 5.10.2010 (Annexure P1), which, in substance, is (paras 19 to 28) as under:-
"19. But his (sic. this) case has very peculiar situation. The case bearing FIR No. 10 dated 08.02.1993 was registered under sections 364, 302, 201 IPC and Sections 3, 4, 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter called TADA) at Police Station Sadar, Ropar and the challan against Harpreet alias Lucky was filed in the Designated Court, Ropar that is why the Hon'ble Apex Court in the order dated May 10, 1996 has ordered the transfer of the trial from Designated Court at Ropar to Designated Court at Chandigarh. Section 14 (1) of the TADA reads as under:
"14. Procedure and Powers of Designated Courts : - (1) A Designated Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts."
20. So, as per the aforesaid provisions of law a Designated Court was competent to take the cognizance of any offence without the accused being committed to it for trial. As the Hon'ble Apex Court has mentioned in the order dated May 10, 1996 that the trial stands transferred to the Designated Court, Chandigarh and the CBI was directed to file the challan in accordance with the Cr.P.C. before the trial Court at Chandigarh, so the prosecution might be under the belief that the Designated Court at Chandigarh was the trial Court, so, though the present case was under the normal provisions of the Indian Penal Code i.e. 120-B, 364 and 302 IPC, CBI has presented the present challan directly before the learned Sessions Judge who was the then Judge, Designated Court, Chandigarh and the case was assigned to Shri S.S. Lamba, and thereafter it also remained pending before the Additional Judge, Designated Court, Chandigarh. Thus, it appears that the prosecution might be under the impression that the challan was to be directly filed before the Designated Court and as per the provisions of Section 14 of the TADA reproduced above no commitment proceedings were required for a Designated Court to take the cognizance.
21. There is no dispute with the proposition of law laid down in all the three authorities relied upon by learned counsel for the applicants and Section 193 Cr.P.C. that the Court of Session cannot take the cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the provisions of the Cr.P.C.
22. The expression "to take cognizance" has not been defined in the Cr.P.C. nor there is any special form of taking the cognizance. However, the word cognizance indicate the point when the court takes the judicial notice of the offence. Taking cognizance is a judicial act, therefore taking cognizance means applying one's mind to the facts stated in the police report and then proceed further in the matter under the relevant provisions of law. That stage in the present case has passed much earlier. It is evident from the interim order dated 10.11.1999 that the learned Special Judge, Chandigarh has applied the mind to the report and issued the process of the accused to secure their CRM No. M-33033 of 2010 -3- presence. This was the first stage when the learned Judge applied the judicial mind and took the cognizance of the matter. The accused appeared before the learned Special Judge on 11.01.2000 and did not raise any objection about his competency to directly take the cognizance of the offence without the commitment proceedings.
23. Then the second important stage was the stage of framing the charges when the accused/applicants could have raised this objection. The charges have been framed against the accused by the learned Additional Judge, Designated Court, Chandigarh vide a detailed order dated 09.04.2011. At that time also the accused have not raised any objection about the irregularity or illegality in the procedure being adopted. These two stages i.e. the date on which the accused had put in their first appearance on 11.01.2000 in compliance to the order dated 10.11.1999 and the stage of framing the charges vide order dated 09.04.2011 were the proper stages to raise this objection. The accused have appeared before the court on 10.01.2000 and the charges were framed on 9th April, 2001 i.e. after about one year and three months, but even during this long period no finger was raised by the accused about any illegality in the procedure.
24. Thereafter the trial started. The prosecution has examined 160 witnesses and the prosecution evidence was closed on 13.04.2010 i.e. after nine years of framing of charges. Thereafter the statement of the accused under Section 313 Cr.P.C. were recorded, but even in those statements no such objection has been raised. One of the accused namely Jaspal Singh has already closed his defence evidence and the case was fixed for the defence evidence of remaining accused, if any and arguments when this application has been moved. Thus, the accused have kept sleeping for more than hen years and when the trial had reached at its fag end this application has been filed apparently to prolong and delay the proceedings and if this application is allowed at this stage, it will require the denovo trial which shall not be advisable at this stage. To support this view reference can be made to case State of Madhya Pradesh versus Bhooraji and others (supra).
25. As already mentioned Section 193 bars the cognizance of an offence by a Court of Session by exercising the original jurisdiction without the commitment of the case by a Magistrate, but in this case the cognizance was already taken by the Court vide orders dated 11.10.1999 when after perusal of the report the process was issued to the accused and the order dated 09.04.2001 when the charges were ordered to be framed for initiating the trial. So, the stage of cognizance is already over and now the case is pending for defence evidence, if any, and for arguments.
26. As per Section 460 Cr.P.C. if any Magistrate not empowered by law to take the cognizance of any offence under clause (a) or clause (b) of sub section (1) of Section 190 Cr.P.C. erroneously in good faith takes the cognizance of the offence that irregularity does not vitiate the proceedings. The same analogy of law will apply to the present proceedings. Hence it cannot be stated that the present trial is void ab initio or vitiated.
27. There is no question of any prejudice to the right of the accused or any failure of justice as argued by learned counsel for applicants. The present report under section 173 Cr.P.C. was presented under Sections 120-B read with section 364 and 302 IPC and the Magistrate was not competent to discharge the accused as the aforesaid offences were exclusively triable by the Court of Session and the Magistrate was also not competent to weigh the evidence i.e. the reports of the CBI Ex. DA and Ex. DB in the committal proceedings. To support this view reference can be made to cases Sanjay Gandhi versus Union of India and others AIR 1978 SC 514, Rajinder alias Gora versus State of Punjab 1997 (1) RCR 11 and Jagjit Singh versus State of Punjab 2000 (1) RCR (Cri.) 580. Moreover, the present trial is being held by the court of competent jurisdiction. The accused have availed their rights provided under the law to defend themselves in the trial. Thus, there is no question of any prejudice to the rights of the accused or failure of justice. CRM No. M-33033 of 2010 -4-
28. Thus, keeping in view my above discussion the present application has no merits and the same is hereby dismissed."
4. Aggrieved by it, the petitioner preferred the present petition to quash the impugned order (Annexure P1), invoking the provisions of Section 482 Cr.PC.
5. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant petition in this context.
6. Ex facie, the argument of learned counsel that since the Court did not comply with the provisions of Section 193 Cr.PC, so, the petitioner deserves to be discharged, is neither tenable nor the observations of Hon'ble Apex Court in cases Gangula Ashok v. State of A.P. 2000(1) RCR (Criminal) 797; State of Madhya Pradesh v. Bhooraji 2001(4) RCR (Criminal) 40 and Vidyadharan v. State of Kerala 2004(1) RCR (Criminal) 28 are at all applicable to the facts of this case, wherein, while interpreting the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred as "the SC & ST Act) and Section 193 Cr.PC, it was observed that "where Court of Sessions Judge was specified as a special Court for trial of offences under the SC & ST Act, then, it can take the cognizance of the offences when the case is committed to it by the Court of Magistrate, in view of the provisions of Cr.PC."
7. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the petitioner in the present controversy. It is not a matter of dispute that altogether different Courts were designated as special Courts under the T.A.D.A. Act, which could legally take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts, as contemplated under Section 14 of the T.A.D.A. Act. Moreover, as is evident from the record, that initially, a criminal case was registered against the accused, by means of FIR No.10 dated 8.2.1993 for the CRM No. M-33033 of 2010 -5- commission of the indicated offences by the police of Police Station Roop Nagar, with respect to the abduction and killing of Kulwant Singh, Advocate and his family members. Keeping in view the serious nature of crime, the Hon'ble Supreme Court directed the CBI to investigate the matter.
8. Subsequently, the Hon'ble Apex Court transferred the case from the Designated Court, Ropar to the Designated Court, Chandigarh. Having completed all the codal formalities, the Judge, Designated Court, Chandigarh framed charges against the accused, vide order dated 9.4.2001. As, the case was only triable by the Judge, Designated (Special) Court, as per the provisions of Section 14 of the TADA Act, therefore, having examined 160 witnesses, the prosecution closed its evidence on 13.4.2010. More so, the statements of the accused were recorded under Section 313 Cr.PC. Not only that, accused Jaspal Singh has already closed his defence evidence and the case was fixed for defence evidence of remaining accused. Till that stage, the petitioner did not raise any sort of objection, permitted the trial to complete and moved this application (Annexure P3) for his discharge on 29.9.2010 in order to further delay the disposal of the case.
9. Above all, in these special pointed circumstances, no prejudice is shown to have been caused to the petitioner in this relevant connection. He appears to have filed the instant application just to delay the disposal of the case. Hence, no ground for quashing the impugned order (Annexure P1) is made out. Thus, the contrary submissions of learned counsel for petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
10. Therefore, to my mind, the trial Judge has examined the matter in the right perspective and correctly negatived the claim of petitioner in this behalf. Such impugned order, containing valid reasons, cannot possibly be interfered with by this Court, in exercise of limited powers conferred under section 482 Cr.PC, unless and until, the same is illegal, perverse and without jurisdiction. Since no CRM No. M-33033 of 2010 -6- such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-accused, so, the impugned order (Annexure P1) deserves to be and is hereby maintained in the obtaining circumstances of the case.
11. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
12. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the present petition is hereby dismissed as such.
13. Needless to state that nothing recorded, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so observed for a limited purpose of deciding the instant petition in this relevant direction.
19.3.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No