Punjab-Haryana High Court
Balwinder Singh @ Datta vs State Of Punjab And Another on 19 July, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CRR No.845 of 2012 (O&M) 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
CRR No.845 of 2012 (O&M)
Date of decision:19.7.2012
Balwinder Singh @ Datta
...Petitioner
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.R.S.Athwal, Advocate,
for the petitioner.
Mr.Deepak Balyan, Addl. A.G., Punjab.
RAMESHWAR SINGH MALIK, J.
The present criminal revision petition is directed against the order dated 17.2.2012 passed by the learned Additional Sessions Judge, Hoshiarpur thereby declining the prayer of the petitioner- accused seeking tender of pardon.
The question that falls for consideration of this Court is as to what is the scope of Section 307 of the Code of Criminal Procedure (for short `Cr.P.C.), and whether the impugned order passed by the learned court below is well within its jurisdiction.
Facts first. Shorn of unnecessary details of the factual backgdrop of the case, it would suffice to note that the present case was registered on the statement of Harmanjeet Singh. According to him, his father contested SGPC election in the year 2004 as an independent candidate from Mukerian circle. One Harbans Singh was a candidate from Akali Dal and he was defeated. Thereafter, CRR No.845 of 2012 (O&M) 2 father of the complainant joined Akali Dal. Because of this reason, Harban Singh Manjh was feeling jealous against the father of the complainant. On 30.10.2005, the father of the complainant had gone to attend a party meeting. At about 7.00 PM, the complainant and his uncle Ravinder Singh were sitting in his house and they heard the horn of the car of his father. The complainant and his uncle came out of the house and saw two motor-cycles in ignited condition. One of the young persons fired at the father of the complainant. He stated that he could identify all the three assailants. The prosecution recorded the statement of Ravinder Singh under Section 161 Cr.P.C., who also stated that he saw the killing of Kuldip Singh. He further stated that he could identify the three assailants. During investigation of the case, it was found that Gurdev Singh and his nephew Salinder Singh wanted to take some land on lease, which was belonging to the Gram Panchayat. The land was having substantial commercial value. The deceased Kuldip Singh did not allow them to take the land on lease, because of which Gurdev Singh and Salinder Singh were having a grudge against Kuldip Singh. During the course of investigation, statement of one Satnam Singh was recorded on 15.9.2005. He stated that he saw Gurdev Singh, Salinder Singh and Jaswinder Singh hatching a conspiracy with Sandeep Singh, Kamaljit Singh, Ranbir Singh and Balwinder Singh to cause murder of Kuldip Singh. Gurdev Singh, Salinder Singh and Jaswinder Singh agreed to make payment of considerable amount to the other persons. The police also recorded the statement of one Harjinder Singh, who had seen Jaswinder Singh making payment of CRR No.845 of 2012 (O&M) 3 Rs.3 lacs to Balwinder Singh, Kamaljit Singh and Sandeep Singh on 18.9.2005 at Prince Dhaba, Mukerian. Statement of PW Saudagar Singh was recorded before whom the accused had allegedly made extra judicial confession. One 9 MM pistol used in the crime was recovered from the possession of Balwinder Singh-petitioner.
After conclusion of the investigation, the report under Section 173 Cr.P.C. was presented against Balwinder Singh- petitioner herein, Ranbir Singh, Sandeep Singh, Jaswinder Singh and Kamaljit Singh. Gurdev Singh and Salinder Singh were declared proclaimed offenders. The police found Harbans Singh as innocent, whereas Kamaljit Singh, accused, died during the pendency of the case. The application dated 2.2.2008 did not bear the signatures of the applicant-petitioner. The first application was sent by the applicant-petitioner through the jail authority, which was thumb marked by him. Thus, it was clear that the petitioner-Balwinder Singh was an illiterate person. In its reply, the prosecution expressed its ignorance about any such statement of the petitioner received through the Superintendent Jail, Hoshiarpur. However, the prosecution could not give any conclusive reply whether the tender of pardon would be in the interest of successful prosecution qua the other offenders whose conviction was not easy without the approver's testimony.
It is also pertinent to note here that identification parade of the assailants was conducted but the present petitioner Balwinder Singh refused to join the same, which throw direct light on his conduct. The report was made part of the record under a seal cover. CRR No.845 of 2012 (O&M) 4 The investigating agency has collected circumstantial evidence that Satpal Singh had witnessed Gurdev Singh, Salinder Singh and Jaswinder Singh hatching a conspiracy with other accused to cause the death of Kuldip Singh. One Harjinder Singh has also seen Jaswinder Singh, making payment of rupees three lacs to Balwinder Singh, (petitioner herein), Kamaljit Singh and Sandeep Singh on 18.9.2005. Statement of one Saudagar Singh has also been recorded regarding extra judicial confession made by the accused. Consequently, weapon of offence has also been recovered from the present petitioner. Further, the empty cartridges lifted from the scene of occurrence were sent for comparison alongwith the pistol. The Forensic Expert has already sent his report. Thus, the prosecution has sufficient evidence for proving the guilty of the accused- petitioner.
The earlier order dated 23.4.2008 declining the prayer of the petitioner to turn approver and further to tender of pardon to him, was challenged by the petitioner before this Court by way of CRR No.1032 of 2008. State of Punjab has also filed CRR No.1552 of 2008. Both these petitions were decided together vide order dated 18.9.2009 remanding the matter back to the learned trial Court with a direction to dispose of the matter afresh in accordance with law.
In compliance of the above-said order dated 18.9.2009 passed by this Court, the impugned order dated 17.2.2012 has been passed by the learned Additional Sessions Judge, Hoshiarpur.
Feeling aggrieved against the above-said order dated 17.2.2012, the petitioner has approached this Court by way of instant CRR No.845 of 2012 (O&M) 5 petition.
Learned counsel for the petitioner vehemently contended that the learned trial Court has failed to appreciate the true import of Section 307 Cr.P.C. He submits that the learned trial Court, while passing the impugned order, has not kept in view the observations made by this Court while passing the above-said order dated 18.9.2009.
Learned counsel further contended that the valuable right of the petitioner has not been appreciated by the learned trial Court in the right perspective while passing the impugned order, because of which the same is liable to be set aside.
Finally, learned counsel for the petitioner prays for acceptance of this petition.
Per contra, learned counsel for the State, contended that the impugned order passed by the learned Additional Sessions Judge, Hoshiarpur does not suffer from any illegality much less a patent illegality or perversity. He further submits that the impugned order is a speaking order which is fully justified on facts as well as on law. No right of the petitioner has been infringed, submitted by learned counsel for the State and the present revision petition is misconceived and is liable to be dismissed.
I have heard the learned counsel for the parties and with their able assistance have gone through the record of the case.
After giving thoughtful consideration to the rival contentions raised and going through the record of the case, this Court is of the considered opinion that the instant criminal revision CRR No.845 of 2012 (O&M) 6 petition is without any merit and is liable to be dismissed for more than one reasons, being recorded hereinafter.
Firstly, the argument raised by the learned counsel for the petitioner that the valuable right of the petitioner has been infringed by the learned trial Court while passing the impugned order, is wholly without any substance. There is no right as such which can be claimed by the petitioner. The prosecution being the master of the case will be the only competent agency in this regard who will decide in the given fact situation of each case as to whether it would be in the interest of prosecution to allow any accused to turn as an approver, entitled for tender of pardon. One of the basic fundamentals to be considered by the prosecution agency would be that conviction of other offenders would not be easy without approver's testimony.
Secondly, the true import of Section 307 Cr.P.C. is not to extend any kind of benefit to an accused person. The object is only to obtain evidence of any person supposed to have been directly or indirectly concerned in, or privy to, the offence and whose evidence will be helpful in the success of prosecution and ultimately for advancing the cause of justice. In this view of the matter, this Court has not found any illegality or perversity in the impugned order passed by the learned trial Court. The relevant observations made by the learned Additional Sessions Judge, Hoshiarpur in his impugned order, read as under:-
"The pardon could only be granted to the offender where there is not sufficient evidence to prosecute the other CRR No.845 of 2012 (O&M) 7 offenders because of the secrecy of the crime and scarcity of the clues. The tender of pardon can only be granted in exceptional cases, that, too, under the circumstances when it is not possible to bring guilt home to the accused. So, in every case this concession cannot be given. The status of the approver is novel one, neither an accused nor a witness. The tender of pardon could only be made on the condition of making the accused full and true disclosure of the whole of the circumstances within his knowledge related to the offence.
17. As is noticed above, the request is not from the prosecution but by the accused himself to be an approver. The instant case is not resting solely on the circumstantial evidence. There is also a direct evidence as gathered by the prosecution.
18. As per the information supplied by the prosecution there are certain cases already pending against the applicant Balwinder Singh @ Datta. Reference may be given to case bearing FIR No.224 dated 30.10.2005, under Sections 302, 120-B IPC; FIR No.89 dated 29.7.1999 under Sections 399/402 IPC and 25/54/59 of Arms Act, Police Station, Dasuya; FIR No.96 of 2009, under Sections 332/353/375/186, 34 IPC Police Station Division No.7, Ludhiana; FIR No.77 dated 14.7.2008, under Sections 307/323/374/320 IPC, Police Station, City, Hoshiarpur.
A bare reading of Section 307 Cr.P.C. would show that nobody can claim pardon as a matter of right. The word `pardon', itself shows that it would be an act of grace on the part of the competent authority which, if granted, would save an offender from the sentence for the offence which he had committed. Thus, this CRR No.845 of 2012 (O&M) 8 Court unhesitatingly conclude that permission to be granted to an accused to turn as an approver would be within the exclusive domain of the prosecuting agency, which would be competent to decide, on the facts of each case, as to whether any accused deserves to be permitted to turn an approver whose evidence may be necessary for the success of the prosecution and the ultimate object would be for advancing the cause of justice.
The view taken by this Court also finds support from the judgment of this Court in Bhup Singh vs. The State of Haryana 1985 (2) Recent Criminal Reports-349, The relevant observations made by this Court in Bhop Singh's case (supra), which can be gainfully followed in the present case, read as under:-
"A pardon in the context has been defined as an act of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.
The grant of pardon carries an imputation of a guilt and in acceptance thereof confession of it. Now, if this be the essence of the power, it would seem that the exercise of it has to be very sparingly and cautiously when it is otherwise the fundamental duty of the State to try offences and punish the guilty. It is only in exceptional cases that this function in a bargaining way is surrendered in favour of receiving evidence from an accomplice against his guilty associates. Nevertheless pardon should not and cannot be easily available to an accomplice on his mere askance or even on the readiness of the Court to have more evidence, qualitative or quantitative in nature.
The exercise of the power to render pardon rests on CRR No.845 of 2012 (O&M) 9 judicial discretion and the Magistrate or the Judge should proceed with great caution or sufficient grounds recognizing the risk which the grant of pardon involves of allowing an offender to escape just punishment at the expense of the other accused. These principles as afore expressed, as then seem to me, govern the parameters within which the power to grant pardon to an accomplice is required to be regulated by a Court or a Magistrate. Such power should be exercised only in exceptional cases and one such case can be that, but for the evidence of the accomplice, it would otherwise be not possible to bring the guilt home to the other accused."
Reverting back to the facts of the present case, there are direct and specific allegations against the petitioner. Weapon of offence has been recovered from him. Report of forensic expert has also come against him. The prosecution has already collected ample evidence against the petitioner. He refused to join the identification parade. Further, he has been found involved in very many other cases for alleged commission of heinous crimes. Finally, the prosecution has not filed any application in this regard and it is only the petitioner-accused who has moved the application dated 2.2.2008, which did not bear even the signatures of the applicant- petitioner. Thus, no illegality has been committed by the learned trial Court while passing the impugned order. It is equally important to note that the revisional jurisdiction of this Court is limited one, which can be exercised only when a patent illegality or perversity has been found to have been committed while passing the impugned order. In the present case, no illegality could be pointed out by the learned CRR No.845 of 2012 (O&M) 10 counsel for the petitioner much less any patent illegality or perversity in the order passed by the learned Additional Sessions Judge.
In the totality of the facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court has no hesitation to hold that the present petition is devoid of any merit. The impugned order does suffer from any illegality. No case for interference has been made out.
Resultantly, the instant criminal revision petition stands dismissed.
19.7.2012 (RAMESHWAR SINGH MALIK) mks JUDGE