Himachal Pradesh High Court
Dinesh Chander Sharma vs Joga Singh And Another on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No.339/2017
Reserved on : 29.11.2019
Date of decision : 3.1.2020
Dinesh Chander Sharma ... Petitioner.
Versus
Joga Singh and another ...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : Petitioner in person.
For the Respondent : None.
Anoop Chitkara, Judge
Challenging the dismissal of criminal revision by the Court of Sessions, upholding the termination of the complaint under section 203 CrPC, the complainant has come up before this Court, seeking prosecution of the respondent/accused for beatings, criminal intimidation, and criminal defamation etc. 1 Whether reporters of Local Papers may be allowed to see the judgment?
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2. This case has a chequered history as old as the agitation .
against the Mandal commission report. The complainant, who is an Advocate by profession, alleged that on Sep 29, 1990, at 1:30 pm, he, along with his elder brother Shri Avinash Chander Sharma, left for their home, from the house of one Shri Sunil Sharma, situated near Civil Hospital, Una. When both brothers were crossing near the Civil Hospital, Una, then 10-15 police personnel, were patrolling the area.
They asked them to stop and then, for no reason, started beating them with sticks. On this, the complainant asked them to tell the reasons for beating, but instead of stopping, they continued to beat. However, one police officer who was a Sikh gentleman intervened and saved them from the clutches of the remaining policemen.
3. After that, the complainant warned those police officials that he would report the matter against them and ask for registration of FIR.
On this, another Police team, present near the spot, again gave beatings to him mercilessly. At 2:00 PM, the policemen dragged his brother to the CIA room and kept on beating them on the way. They threatened them to do away with their lives in case they inform anyone about this. Due to this, the complainant suffered a fit that lasted for 15- 20 minutes. The police did not even permit him to take the medicines.
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4. In the evening at around 5:00-6:00 PM, the police took both of .
them to a local Police Station and then took them to District Civil Hospital for their medical examination. On the next day, i.e., Sep 30, 1990, the then Chief Judicial Magistrate visited the complainant in the hospital.
5. On Sep 29, 1990, Roda Ram, posted as Additional SHO of Police Station, Una, lodged FIR against the complainant and other persons, under Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984, and Sections 147, 148, 149, 435 read with Section 34 of the IPC.
6. After completion of the investigation in this FIR, the police filed a report under Section 173(2) of the Code of Criminal Procedure, 1973, after now called CrPC, in the Court of Judicial Magistrate 1st Class (I), Una. However, on May 8, 1992, the prosecution withdrew the said case as a gesture of goodwill and public interest. Accordingly, the complainant, as well as the other four accused, stood discharged.
7. Vide present complaint dated Nov 5, 1993, filed under Section 190(1)(a) of CrPC, the complainant sought prosecution of all the Police officers, who were involved in the beatings, for appropriate offences, punishable under IPC.
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8. Paragraph-8 of the complaint states that the complainant and .
his brother belong to an educated and reputed family, and the action of the police disgraced him and affected his spotless reputation in the society. He further alleged that his illegal confinement injured his character and lowered his reputation in the eyes of society.
9. The complainant further stated that the cause of action accrued to him on Sep 29, 1990, when the alleged assault took place, and also on Dec 31, 1990, when the police filed the report in the Court, under Section 173(2) CrPC, against him.
10. As reflected from the order-sheets, the Judicial Magistrate 1st Class, Una, received the said complaint on Nov 5, 1993, and registered it as Complaint No.27-II/93. After that Ld. Judicial Magistrate took cognizance of the offense, and called for the examination of the complainant and his evidence.
11. Subsequently, Ld. Judicial Magistrate, found a prima facie case to proceed and issued process under Section 204 CrPC, and summoned all the seven accused. The relevant extract of the said order is as follows: -
"From the perusal of the complaint and preliminary evidence, a prima-facie case is made out to proceed against the accused No.3 to ::: Downloaded on - 04/01/2020 20:27:50 :::HCHP ...5...
6 for the commission of offences u/s 116, 166, 167, 182, 193, 195, 323, 203, 211, 220, 221, 342, 352, 355, 357, 500 and 506 read with .
Section 34 IPC and a prima facie case is also made out to proceed against accused No.1, 2 and 7 for the commission of offences u/s 182, 193, 195 and 203 IPC. The accused be summoned on filing PF and copies of complaint for 14.2.1994."
12. Accused No.1 Arjun Singh, accused No.2 P.C. Sharma and accused No.7 Niranjan Singh, challenged this order of summoning before learned Sessions Court, Una, by filing a criminal revision petition under Section 397 of the CrPC. Vide judgment dated Dec 8, 1994, passed in Criminal Revision No.16 of 1994, Ld. Sessions Judge, Una, set aside the order of summoning against accused No.1, 2, and 7, for offenses punishable under Sections 182, 193, 195, 203 of the IPC. However, the Court observed that since the other accused, i.e., accused Nos.3 to 6, did not challenge the impugned order, as such, the Judicial Magistrate may proceed against them following the law.
13. The petitioner challenged the judgment dated Dec 8, 1994, before the High Court of HP. Vide judgment dated May 10, 1996, the Hon'ble Chief Justice, upheld the same.
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14. After this, accused No.6, Sita Ram Parmar, also filed a Criminal .
Revision under Section 197 of the CrPC against the order of summoning dated Dec 16, 1993, before learned Sessions Judge, Una, HP.
15. Vide judgment dated Jun 14, 1996, passed in Criminal Revision No.3/1995, learned Sessions Judge, Una, allowed the revision petition. While accepting the revision petition in its judgment dated Jun 14, 1996, learned Sessions Judge in Paragraph 10 referred to the fact that the High Court had already upheld the order passed by Sessions Judge, discharging the accused Nos.1, 2 and 7.
16. Because of the judgments passed in Criminal Revision petitions, accused Nos.1, 2, 6, and 7, were discharged, and the summoning order was confined only to accused Nos. 3 to 5, namely Om Parkash (accused No. 3), Parmeshwari Dass (accused No. 4), and Joga Singh (accused No. 5).
17. An endorsement in the complaint reads that the accused No. 3, Om Parkash died, and as such, the matter against him was abated.
Consequently, the complaint continued only against original accused Nos.4 and 5, namely Parmeshwari Dass and Joga Singh, who are respondents in the present petition.
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18. After that, the complaint took U-turn. The complainant filed .
criminal revision in the Sessions Court, praying therein that the order of summoning dated Dec 16, 1993, needs correction. After a gap of nine years, seven months, and eleven days, the complainant challenged the order of issuance of process, seeking its modification by including Section 500 of the IPC. However, vide order dated Nov 9, 2004, passed in Criminal Revision No.7/2004-RBT-16/2004, learned Sessions Judge, Fast Track Court, Una, District Una, HP, dismissed the said application, being barred by limitation.
19. After that, the complaint moved like a shuttlecock between the Courts, and finally vide impugned order dated Sep 9, 2013, passed in Criminal Complaint No.27-I-1993, Judicial Magistrate 1st Class, dismissed the same, finding no prima facie case against the accused of commission of the alleged offense.
20. While dismissing the complaint, learned Judicial Magistrate observed that the evidence of the complainant and his brother had pointed out that the police personnel had beaten them. Still, there is no evidence that the accused Joga Singh and Parmeshwari Dass were members of the said police party. Consequently, it did not find any evidence to prosecute and dismissed the complaint.
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21. Having aggrieved, the complainant challenged this order dated .
Sep 9, 2013, by filing a Criminal Revision Petition before learned Sessions Judge, Una, under Section 397 of the CrPC. Vide order dated Oct 27, 2016, passed in Criminal Revision Petition No.15/2013, learned Additional Sessions Judge (I), Una, District Una, HP, upheld the impugned order and dismissed the revision petition.
22. Challenging the dismissal of Criminal Revision petition, and also the dismissal of the complaint, the complainant has come up before this Court, by filing the present petition under Article 227 of the Constitution of India read with Section 482 of the CrPC, seeking prosecution of the two surviving police officials, who are 1st and 2nd respondents herein.
23. I have heard Shri Dinesh Chander Sharma, petitioner in person.
The respondents did not prefer to engage any counsel and a Co-
ordinate Bench of this Court, vide order dated Nov 30, 2017, recorded that despite proper service, they did not choose to represent. I have also waded through the entire record starting from Nov 4, 1993, onwards.
24. The thicker the brief, the thinner the controversy; the longer the trial, the shorter the issue.
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25. The allegations made explicitly by the complainant, explicitly .
mentioned that troop of 15-20 policemen gave beatings to him and his brother. He did not mention the single name of the assailants or a member of the police party in the complaint. There is not even an only averment in the complaint that any of the accused was a member of the said troop of Police officials who had given them beatings.
Accordingly, the complainant did not attribute any specific role to any of the accused, named in the complaint. The ingredients of the common intention and the common object are absent.
26. Out of the seven persons, arraigned as accused in the complaint, Ld. Sessions Judge, had set aside the order of summoning, issued against accused Nos.1, 2, and 7. This Court had upheld such order. Ld. Sessions Judge had also set aside the summons issued against the 6th accused. In the interregnum, the 3rd accused expired.
Only these two persons (accused Nos. 4 and 5), who are respondents herein, are facing this prolonged trial.
27. There is not even an iota of the allegation, explicitly mentioning the direct or indirect role of accused Joga Singh and Parmeshwari Dass. There is not also a whisper about the role they played in the illegal beatings.
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28. The silence in this complaint about the participation of accused .
Parmeshwari Dassa and Joga Singh assumes importance because the complaint was filed after a gap of more than two years. As such, the complainant had ample time and opportunity to ascertain their names. Furthermore, keeping in view the fact that the complainant was an Advocate in practice, so he would know the consequences of not naming the accused in the complaint.
29. Given the above observations, I find no infirmity or illegality in the impugned orders. Consequently, the present petition devoid of merits and is dismissed. Pending application(s), if any, stand closed.
(Anoop Chitkara), Judge.
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