Punjab-Haryana High Court
Kimat Singh And Others vs State Of Punjab And Another on 27 September, 2012
Author: Sabina
Bench: Sabina
Crl. Misc. No.M-14527 of 2009 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARAYANA AT CHANDIGARH
Crl. Misc. No.M-14527 of 2009(O&M)
Date of Decision: September 27, 2012
Kimat Singh and others
....Petitioners
Versus
State of Punjab and another
....Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. H.S. Gill, Senior Advocate with
Mr. K.B.S. Mann, Advocate
for the petitioners.
Mr. P.S. Paul, DAG, Punjab
Mr. P.S. Kang, Advocate
for respondent No.2.
****
SABINA, J.
Petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR No.347 dated 19.07.2003 registered under Sections 420, 406, 120-B of the Indian Penal Code, 1860 ('IPC' in short) at Police Station Division No.5, Ludhiana, and all the subsequent proceedings arising therefrom including order dated 26.09.2005 (Annexure P-5), chargesheet dated 05.10.2005 (Annexure P-6) and order dated 21.01.2009 (Annexure P-7).
Learned Senior counsel for the petitioners has submitted that complainant-respondent No.2 Bakhshish Singh had earlier filed private complaint (Annexure P-1) against the petitioners and others. When the trial in the said complaint was near conclusion, the FIR in question was lodged by respondent No.2 on similar set of allegations. In civil litigation, the power of attorney dated 22.06.1992 registered on 17.07.1992 by respondent No.2 in favour of Kimat Singh was held to be a genuine document.
Crl. Misc. No.M-14527 of 2009 (O&M) -2-
Learned Senior counsel for the petitioner has placed reliance on Kuljit Singh vs. Jasbir Singh 2002(4) RCR(Criminal) 707 wherein it was held as under:-
"This Section embodies the ancient maxim "nemo debet bis vexani pro eadem causa" ( no person should be twice disturbed for the same cause). One of the principle of this Section is that where an accused can be held at one trial for several offences and has not been so tried for all the offences but only for a few he should not be put again in jeopardy for the offences for which he could have been tried at the time but had not been tried. From the bare reading of the aforesaid Section, it is clear that if a person, who has once been tried by a Court of competent jurisdiction, for an offence and he has been convicted or acquitted for such an offence, shall not be tried again for the same offence or for any other offences, for which a different charge from the one made against him might have been made under Section 221(1) of the Code or for which he might have been convicted under sub-section (2) thereof. Sub-section (1) of Section 300 of the Code consists of two limbs. The first limb deals with the case of a person, who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence. Such person shall not be liable to be tried again for the same offence while such conviction of acquittal remains in force. The second limb of the sub-section deals with the same facts for any other offence for which a different charge from the one made against him might have been made under sub section (1) of Section 221 or for which he might Crl. Misc. No.M-14527 of 2009 (O&M) -3- have been convicted under sub-section(2) thereof. The case of the petitioner is covered under second limb of this sub-section. Though in the police case, the petitioner and his parents were charged for offences punishable under Sections 302/304-B/34 IPC and they were not charged for offences punishable under Sections 406/498-A IPC, but on the basis of the facts alleged in the FIR, the challan and the evidence came before the Court during the trial, they could have been charged under these offences in exercise of power given under Section 221 (1) of the Code. But neither the complainant/prosecution nor the Court called upon the petitioner and his parents to face trial for offences under Sections 406/498-A IPC though the allegations constituting these offences were very much available. The petitioner has been convicted and his parents have been acquitted in the earlier trial vide judgment dated August 6,1998. In view of this fact, the petitioner and his parents cannot be tried again on the basis of the present complaint. This view of mine is supported by a decision of this Court Narinder Singh vs. State of Punjab, 1985(2) Recent Criminal Reports 152 where an accused tried and acquitted of offences under Section 5(2) of the Prevention of Corruption Act then such accused could not be retried for offences under Sections 147/158/224/225 IPC. Thus, in view of Section 300 (1) of the Code, the present complaint filed by respondent No.1, brother of the deceased, is liable to be quashed, as the petitioner and his parents cannot be tried again for an offence under Sections 406/498-A IPC on the allegations made therein." Crl. Misc. No.M-14527 of 2009 (O&M) -4-
Learned State counsel has opposed the petition.
Learned counsel for respondent No.2 has submitted that although the allegations levelled in the complaint as well as in the FIR in question were similar, but the petitioners were being sought to be tried qua different offences.
After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed.
Section 300 Cr.P.C. reads as under:
"300. Persons once convicted or acquitted not to be tried for the same offence.
(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.
(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court Crl. Misc. No.M-14527 of 2009 (O&M) -5- to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation. The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section." Thus, as per the above provision, no person should be tried twice for the same cause. Let us examine the facts of the present case to come to a conclusion as to whether continuation of criminal proceedings against the petitioners in FIR in question would amount to double jeopardy.
Annexure P-1 is the copy of the complaint filed by respondent No.2 Bakshish Singh and Karnail Singh against the petitioners and others.
A perusal of the same reveals that the case of the complainants was that complainant No.1 was unmarried and has thus no issue. Complainant No.1-Bakshish Singh had entered into an agreement to sell his land with complainant No.2-Karnail Singh and his brother Piara Singh and had received Rs.3 lacs towards earnest money from the purchaser. On Crl. Misc. No.M-14527 of 2009 (O&M) -6- 28.05.1992 an agreement to sell was executed in favour of Karnail Singh and Piara Singh by Bakshish Singh. The remaining sale consideration was to be paid at the time of registration of the sale deed in June, 1993. Possession of the land was handed over to the vendees. When the accused came to know about the said agreement, then all of them entered into a conspiracy. In pursuance to the conspiracy accused Hakam Singh, Kimat Singh, Hoshiara Singh along with other unknown persons came to the house of Bakshish Singh and took his thumb impressions on blank papers and converted the same into a General Power of Attorney. On the basis of said power of attorney, accused Kimat Singh executed four sale deeds in favour of his brothers and Paramjit Singh. When the complainant came to know about the said fact, he reported the matter to the police, but no action had been taken on the same so far. It was further alleged that on 19.04.1993 at about 8.00 a.m., all the accused in conspiracy with each other entered into the land of Bakshish Singh. Accused No.1 Hakam Singh was armed with a gun, accused Jarnail Singh was armed with 12 bore licensed revolver and other accused were armed with Kirpan etc. Hakam Singh was driving the combine, whereas other accused Kimat Singh and Paramjit were loading wheat crop in trolleys. Thus, the accused had taken away the wheat crop which was standing in 7 acres of land.
Complainants led their preliminary evidence in support of their case. Charge was framed against the petitioners-accused under Sections 392, 447 of IPC. Vide judgment dated 15.12.2003 (Annexure P-2), petitioners were acquitted of the charges framed against them.
A perusal of the FIR in question (Annexure P-3) reveals that the said FIR was lodged on the allegations that the signatures of respondent No.2 had been taken on blank papers by the accused and on the said paper, a Crl. Misc. No.M-14527 of 2009 (O&M) -7- general power of attorney dated 22.06.1992 was forged by the accused and the same was got registered on 13.07.1992. Petitioners Kimat Singh thereafter sold the land belonging to the complainant on the basis of said power of attorney in connivance with other accused. After investigation, challan was presented against the accused. The trial Court has framed charge against the petitioners on 05.10.2005 (Annexure P-6) under Section 420 IPC. Revision petition filed by the petitioners against the order of framing of charge under Section 420 IPC was dismissed by the Addl. Sessions Judge vide order dated 21.01.2009 (Annexure P-7).
A perusal of the complaint as well as the FIR reveals that similar allegations were levelled therein that the signatures of respondent No.2 had been taken by the accused on some blank papers and thereafter general power of attorney was prepared on the same with a view to cheat the complainant and on the basis of power of attorney prepared by the accused, sale deeds were executed by Kimat Singh in favour his brothers and Paramjit Singh. In the complaint filed by respondent No.2, charge was not framed against the petitioners under Section 420 IPC. Since the FIR in question has been lodged by respondent No.2 on same facts, continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. The complainant should have challenged the order of charge in the complaint case, if he was aggrieved qua non-framing of charge against the accused with regard to cheating and forgery. However, respondent No.2 could not lodge the FIR on similar set of allegations levelled in the complaint qua which the accused were already facing trial. Petitioners after facing the trial in the complaint case have been acquitted by the trial Court. Further perusal of the judgment (Annexure P-9) passed by the Civil Court reveals that the suit filed by respondent No.2 against the petitioners for declaration Crl. Misc. No.M-14527 of 2009 (O&M) -8- that the general power of attorney dated 22.06.1992 was illegal and void, was dismissed vide judgment and decree dated 09.08.2010. Thus, the complainant had also availed his civil remedy by challenging the general power of attorney in question but had failed to establish his case.
Keeping in view the totality of the circumstances, discussed above, the FIR in question is liable to be quashed. Accordingly, this petition is allowed. FIR No.347 dated 19.07.2003 registered under Sections 420, 406, 120-B of IPC at Police Station Division No.5, District Ludhiana, and all the subsequent proceedings arising therefrom including order dated 26.09.2005 (Annexure P-5), chargesheet dated 05.10.2005 (Annexure P-6) and order dated 21.01.2009 (Annexure P-7), are quashed.
27.09.2012 (SABINA)
vcgarg JUDGE
Crl. Misc. No.M-14527 of 2009 (O&M) -9-