Punjab-Haryana High Court
Bikramjit Singh And Anr vs State Of Punjab And Anr on 8 January, 2019
Author: Sudhir Mittal
Bench: Sudhir Mittal
CRR-2117-2016 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.202
CRR-2117-2016 (O&M)
Date of decision : 07.02.2019
Bikramjit Singh and another ..... Petitioners
VERSUS
State of Punjab and another ..... Respondents
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present: Mr. P.S. Ahluwalia, Advocate, for the petitioners.
Mr. Luvinder Sofat, AAG, Punjab
Mr. Tarun Sharma, Advocate for
Mr. R.S. Bajaj, Advocate, for respondent No.2.
*****
SUDHIR MITTAL, J.
The petitioners are the accused in FIR No.195 dated 17.8.2002, registered at Police Station Tanda, District Hoshiarpur. Vide impugned order dated 9.5.2016 (P2), the learned Addl. Sessions Judge, Hoshiarpur, has consolidated the said FIR with a complaint case and has directed that all the witnesses mentioned in the State case be examined afresh. Further, in the complaint case, charges have been framed under Section 302 read with Section 34 and Sections, 201, 120-B and 205 IPC.
2. Facts in brief are that deceased Balwant Singh and his uncle Karnail Singh son of Kartar Singh drove together in a car bearing No.PB-08-T-1457 on 17.8.2002. When the car reached near the shops in front of village Daburgi, the car accidently scraped a motorcycle going ahead as a result of which, the motorcycle fell down. The said motorcycle was being driven by one Satwinder Singh son of Joginder 1 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 2 Singh alongwith pillion rider. Both these persons confronted Balwant Singh and Karnail Singh resulting in an altercation. The person riding pillion quietly slipped away and in the meanwhile, one Bikramjit Singh (Sarpanch) and his son Kuljit Singh @ Satwinder Singh @ Sonu reached the spot and started hitting Balwant Singh. They beat him up severely and while this was going on, a truck came from behind. Balwant Singh tried to escape by boarding the truck from co-driver side, but the assailants pulled him down. The head of Balwant Singh struck the side of the rear wheel of the truck and he suffered serious injuries. Resultantly, he died while being taken to Civil Hospital, Hoshiarpur. FIR under Section 304 IPC was registered on the complaint of Karnail Singh son of Kartar Singh aforementioned.
3. Satwinder Singh son of Joginder Singh was tried separately and was acquitted vide judgment dated 1.4.2003 delivered by the learned Sessions Jude, Hoshiarpur. Against the petitioners, charges were framed on 8.8.2003. Thereafter, Kulwant Singh (brother of deceased Balwant Singh) preferred a private complaint No.76 of 2003, under Sections 302, 304, 34, 201, 205 and 120-B IPC and named the petitioners and Satwinder Singh son of Joginder Singh alongwith Karnail Singh son of Kartar Singh as accused. In the year 2006, charges were framed against the said four accused and the trial of the State case as well as the complaint case was proceeding separately in the same Court. The charges were assailed by Satwinder Singh son of Joginder Singh and Karnail Singh son of Kartar Singh before this Court. Vide judgment dated 27.8.2012, said Satwinder Singh was discharged and private 2 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 3 complaint No.76 of 2003 qua him was quashed. Vide separate judgment of even date, aforesaid Karnail Singh was also discharged and private complaint No.76 of 2003 was quashed qua him as well. The said judgments were upheld by the Supreme Court and SLP thereagainst was dismissed on 1.3.2016.
4. Thus, proceedings commenced before the trial Court. The complainant in compliant No.76 of 2003 contended that in view of the fact that Satwinder Singh son of Joginder Singh and Karnail Singh son of Kartar Singh had been discharged, fresh charges were to be framed against the petitioners. It was also contended that the State case and the complaint case be consolidated. The consolidation was objected to by the learned defence counsel, however, vide aforementioned impugned order, the trial Court ordered consolidation. Charges were framed afresh and all the witnesses mentioned in challan were directed to be summoned for various dates.
5. Learned counsel for the petitioners had contended that charge under Section 205 IPC could not have been framed as there is no allegation of impersonation against the accused persons. Neither in challan presented in State case nor in the private compliant, there is any averment or evidence, which may indicate impersonation by the petitioners and of making any statement or confessing judgment or doing any other act in a criminal case in such assumed character. Thus, the charge under the said provision deserves to be quashed. Moreover, in view of Section 195(1)(b)(i) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), a Court is barred from taking cognizance of an offence 3 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 4 under Section 205 IPC unless there is a complaint in writing by a Court or some officer authorized by the Court or a Court superior to the Court concerned. Thus, on this ground also the charge is not sustainable. Reliance is placed upon 'C. Muniappan and Ors. Vs. State of Tamil Nadu, 2010 (4) RCR (Criminal), 268.'
6. The direction for clubbing of the two cases is also assailed on the ground that Section 210 Cr.P.C. is not attracted in the instant case as according to sub-section (1) thereof, the said provision comes into play only when investigation in the State case is in progress. The complaint case is stayed and the challan under Section 173 Cr.P.C. is awaited and only on receipt thereof, both the cases are tried as if they were both instituted on a police report. In the instant case, at the stage of filing of the complaint case, the investigation in the State case had been completed and co-accused Satwinder Singh son of Joginder Singh had been acquitted. Charges had been framed against the petitioners also and thus, Section 210 Cr.P.C. is not attracted in the instant case. It is, further argued that in the State case, the complainant in the complaint case, namely, Kulwant Singh son of Dharam Singh, had been sought to be summoned as a prosecution witness through an application under Section 311 Cr.P.C., but the said application had been rejected and it was directed that he be summoned as a Court witness only. In case the clubbing is permitted, said Kulwant Singh son of Dharam Singh would be examined as prosecution witness and the same would amount to review of the order passed on the application under Section 311 Cr.P.C., which is not permissible in law. Thus, learned counsel for the petitioners contends that 4 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 5 both trials be separated, but the cases be tried by the same Court. In this regard, reliance is placed upon 'Balbir Vs. State of Haryana, 1999(4) RCR (Criminal) 839.'
7. On behalf of the State of Punjab, it is conceded that the charge under Section 205 IPC is not sustainable in law. However, regarding clubbing of the cases, it is submitted that no prejudice would be caused to the petitioners thereby and thus, the impugned order does not suffer from any infirmity.
8. A bare perusal of Section 205 IPC shows that to attract a charge under the said provision, there has to be personation by the accused and in such assumed character, he must either make an admission or statement or confess judgment or cause any process to be issued or become bail or security in any suit or criminal prosecution. The allegations made in this case do not pertain to personation at all. As recorded hereinabove, the petitioners are alleged to have beaten up deceased Balwant Singh, to have dragged him down when he tried to board a passing truck, thus, resulting in his death. Under the circumstances, I fail to understand how Section 205 IPC is attracted in this case. Learned State counsel has also conceded that the charge under Section 205 IPC is not sustainable in law and thus, charge under Section 205 IPC framed by the trial Court vide impugned order dated 9.5.2016 is quashed.
9. Before I proceed to examine the next contention regarding clubbing of the two cases, it would be appropriate to briefly recite the case set up in the complaint dated 27.8.2003. The said complaint has 5 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 6 been placed on record as Annexure P7. As mentioned earlier, it has been preferred under Sections 302, 304, 34, 201, 205 and 120B IPC. It is stated that on 17.8.2002, Karnail Singh son of Kartar Singh (complainant in the State case) came to the house of the complainant to convince his brother Balwant Singh to effect a compromise in a criminal case instituted upon his complaint and at about 3.00 p.m. on the same date, he requested Balwant Singh to take him to village Jalalpur to meet a person. Since, the complainant and one Diwan Singh son of Faqir Singh was also present at that time, deceased-Balwant Singh requested them to follow him on their motorcycle. Karnail Singh and Balwant Singh travelled in a car. The person to be met in village Jalalpur was not available and thus, all of them were returning home. As stated earlier, Balwant Singh and Karnail Singh were travelling in the car and the complainant and Diwan Singh were following on a motorcycle. On reaching near village Daburgi, the car of Balwant Singh scraped against a Hero-Honda motorcycle being driven by Satwinder Singh son of Joginder Singh and it fell down. Said Satwinder Singh and his pillion rider confronted Balwant Singh and Karnail Singh. The pillion rider quietly slipped away from the scene and the petitioners came to the spot and started beating Balwant Singh. Diwan Singh restrained the complainant from interfering. A truck was passing by and deceased Balwant Singh tried to board the same from the co-driver side, but was pulled down by the petitioners and driver of the motorcycle, resultantly, his head hit the rear wheel of the truck from the side. Thereafter, the accused persons ran away and by arranging a vehicle Balwant Singh was taken to Civil 6 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 7 Hospital, Tanda, from where, he was referred to Hoshiarpur., However, he died on the way. It is also stated that Karnail Singh connived with the petitioners and obtained the acquittal of Satwinder Singh son of Joginder Singh and also took money for getting the petitioners acquitted.
10. It may be noted that Satwinder Singh son of Joginder Singh and Karnail Singh son of Kartar Singh have been acquitted meanwhile and the orders of acquittal have been upheld by the Supreme Court. Thus, only the petitioners are the accused in the State case as well as in the complaint case. It may also be noted that the circumstances in which the death of Balwant Singh was caused are identical according to the State case as well as the complaint case. The only addition in the complaint case is that the complainant and Diwan Singh son of Faqir Singh have been shown to be eye-witnesses and allegations have been made against Karnail Singh son of Kartar Singh of colluding with the petitioners. Karnail Singh son of Kartar Singh has already been acquitted and thus, allegations made against him in the complaint case hold no water. The remaining allegations are identical with those in the State case apart from the introduction of the complainant and Diwan Singh son of Faqir Singh as eye-witnesses. It is under these circumstances that it is required to be examined whether the impugned order directing clubbing of the two cases is legally sustainable or not.
11. Learned trial Court has placed reliance upon Section 210 Cr.P.C for clubbing the two cases. Reliance thereupon is misplaced to say the least because Section 210 Cr.P.C. relates to a case where, during the examination of a private complaint the Magistrate comes to know that 7 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 8 a State case has also been registered and is under investigation, further enquiry in the private complaint is deferred till the challan is presented in the State case. Thereafter, both cases are tried as one case. Presently, the situation is entirely different. The complaint case came to be filed much after the investigation in the State case had been completed. In fact, co-accused Satwinder Singh son of Joginder Singh had also been acquitted and thus, the principle of staying the private compliant till the receipt of challan in the State case is not attracted.
12. Having held that Section 210 Cr.P.C. is not attracted in this case, is the order of the trial Court directing clubbing of the cases illegal ? Learned counsel for the petitioners has argued that it is so because; (a) in the State case charges have only been framed under Section 304 IPC, whereas in the complaint case charges have been framed under Section 302 read with Section 34 IPC, Sections 201 and 120-B IPC,
(b) Karnail Singh son of Kartar Singh has been mentioned as an accused additionally and (c) clubbing would result in nullifying the order passed earlier in the State case on an application under Section 311 Cr.P.C. rejecting the request of the prosecution for summoning complainant Kulwant Singh son of Dharam Singh as a prosecution witness. I take up argument-(b) first. As noticed earlier, Karnail Singh son of Kartar Singh has been finally acquitted and thus, his inclusion as an additional accused in the complaint case would make no difference. Presently, only the petitioners are facing trial as both Karnail Singh and co-accused Satwinder Singh stand acquitted. Thus, the argument holds no weight. Coming to contention-(a), a reference may be made to Section 223 8 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 9 Cr.P.C. The said provision relates to the persons who may be charged jointly. Clause-(d) thereof is relevant to the present case and it provides that persons accused of different offences committed in the course of same transaction may be charged jointly. In the instant case, the petitioners have been accused of murder/homicide/criminal conspiracy and destruction of evidence. These offences have allegedly been committed in the same transaction as is evident from the State case as well as the complaint case. Thus, there is no illegality in clubbing of two cases. The order passed on the application moved earlier in the State case under Section 311 Cr.P.C. is also no hurdle as even according to the said order, the complainant, namely, Kulwant Singh son of Dharam Singh had to be examined as a Court witness. Thus, whether he is examined as a Court witness or a prosecution witness would make no difference. The accused would be at liberty to cross-examine him in either of the situations and thus, no prejudice is caused to them. The judgment in Balbir's case (supra) is also not helpful to the petitioners because in the said case two different versions had been put-forth in a murder case. To start with two persons, namely, Balbir and his brother Rajinder were mentioned as accused in the FIR got registered but, on investigation, challan was presented against one Guria son of Kirpa Ram. Consequently, a private complaint was filed against Balbir and his brother Rajinder and under these circumstances, the Supreme Court held that the cases be tried separately, but by the same Court and judgments be pronounced on the basis of evidence in respective cases. It was held that the versions 9 of 10 ::: Downloaded on - 10-02-2019 14:58:34 ::: CRR-2117-2016 (O&M) 10 put-forth in the State case as well as in the complaint case were diametrically opposite and thus, Section 223 (d) Cr.P.C was not attracted.
13. In view of the above, the revision petition is partially allowed. Charge framed under Section 205 IPC against the petitioners is quashed. However, the clubbing of the State case as well as the complaint case is upheld. Since, charges have been framed afresh, there is no error in the order of the trial Court directing examination of all the witnesses mentioned in the challan.
(SUDHIR MITTAL)
JUDGE
07.02.2019
Ramandeep Singh
Whether speaking / reasoned Yes / No
Whether Reportable Yes/ No
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