Punjab-Haryana High Court
Kuljinder Kaur vs Dr. Chetan Nanda & Others on 14 March, 2012
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Misc.No.M-10281 of 2011 (O&M)
Date of decision: 14.03.2012
Kuljinder Kaur
-----Petitioner
Vs.
Dr. Chetan Nanda & others
-----Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. G.S. Virk, Advocate for
Mr. G.S. Nagra, Advocate
for the petitioner.
---
RAKESH KUMAR GARG, J.
1. By way of this petition under Section 482 Cr.P.C., the complainant has approached this Court for quashing of order dated 14.9.2009 (Annexure P-2), whereby the accused were discharged in case/FIR No.54 dated 20.4.2007 registered under Section 363/511/34 IPC at P.S. City Gurdaspur and further order dated 22.12.2010 passed by Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, whereby revision petition filed by the State against the aforesaid order of discharge was dismissed.
2. According to learned counsel for the petitioner, from the facts of the case, attempt to abduct the prosecutrix with CRM No.M-10281 of 2011 2 intention to secretly and wrongly confine her, is established on record and thus, the basic ingredients to constitute offence under Section 365/511/34 IPC are clearly made out against both the accused. It has been averred that inspite of making application dated 7.7.2009 for framing charges under Section 365/511/34 IPC, the trial Court has not even framed the charges against the accused under Section 363/511/34 IPC, for which, the FIR in question was registered.
3. To elaborate his arguments further, learned counsel for the petitioner has vehemently argued that at the stage of framing of charges, merely a strong suspicion taking cognizance of the facts from the report under Section 173 CrPC is enough to frame a charge and there is no necessity of formulating the opinion about the prospects of conviction. Moreover, the Court is not obliged to see the truth and veracity of allegations at the stage of framing of charges, whereas in the present case, the trial Court has built up a case of defence and has taken into consideration the evidence/material produced by the defence, which could not have been done. It has been further submitted that even the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur has committed a manifest error while dismissing the revision filed by the State and thus, the impugned orders are liable to be quashed.
CRM No.M-10281 of 2011 3
4. I have heard learned counsel for the petitioner and perused the impugned orders and other documents placed on record of this petition.
5. Admittedly, the impugned order was passed on 22.12.2010 and the instant petition, challenging the impugned orders, has been filed on 10.2.2011, but the same was not argued till date even for preliminary hearing. No explanation is forthcoming for coming to this Court after such a long delay. Be that as it may, this Court is proceeding to decide this case on its merits.
6. It is useful to refer the relevant part of the impugned order dated 14.9.2009 passed by Chief Judicial Magistrate, Gurdaspur, which reads as follows:-
"7. Indeed wherever a strong suspicion about commission of offence is prima facie made out from the facts put forth in police report, charge against the accused is liable to be framed. The facts of the instant case however put up a totally different picture. What to talk about strong suspicion of commission of offence by accused, the present set of facts prima facie show the false implication of accused on account of registration of FIR against the uncle, aunt and sister of the present complainant at the instance of Jasdip Kaur present accused No.2 in Police Station Sadar Gurdaspur. So much so, the complainant herself has talked about the said FIR having been registered at the instance of Dr. Jasdip Kaur against her relatives and has further alleged that on the fateful CRM No.M-10281 of 2011 4 day when she came out of her college after sitting in her exam she was dragged by the accused saying that they would abduct her. As per the complainant herself offence under Section 363 is made out (sic) the accused as the same deals with kid of a minor under section 16 years of age whereas the present complainant is major aged about 22 years. So far as the offence under section 365 IPC is concerned the same talks of abducting with intent to secretly and wrongly confine a person. However, neither any ingredients of inducement made by the accused to the complainant with intention to abduct her or any ingredient of force by which the complainant might have been compelled, has been put forth in the FIR. It simply is unbelievable that the accused, neither of whom was armed, would try to drag a 22 year girl in broad day light, outside a college and then immediately give up on raula being raised bfy her. The very improbability of the version is woven in the circumstances as have been narrated by the complainant. Not only was the FIR registered after a delay of seven days, on 13/04/2007 itself present accused Jasdip Kaur had moved an application to SHO Sadar Gurdaspur about her criminal intimidation at the hands of Jasbir Singh uncle of Jatinder Kaur accused in the earlier FIR and by sister of present complainant Kuljinder Kaur. In such a situation, without assessing the facts at the tough stone of conviction of the accused but keeping in mind the fact that a casual approach to the arguments put forth by learned defence counsel and the circumstances brought on record by defence would imply putting an CRM No.M-10281 of 2011 5 accused to trial even when apparently the facts narrated in the FIR appear to be conceded, not fulfilling any of the ingredients of either section 363 IPC or of 365 IPC against the accused, the Court does not deem it fit to frame charge against the accused. Both the accused are accordingly discharged. File to consigned to Record Room."
7. A perusal of the aforesaid observations would show that while discharging the accused, the trial Court has come to the conclusion that the present set of facts disclose the false implication of the accused on account of registration of FIR against the uncle, aunt and sister of the complainant/petitioner at the instance of Jasdeep Kaur, (accused) at P.S. Sadar Gudaspur. The Court has further found that the version given by the petitioner was unbelievable as the FIR in question was registered after a delay of 7 days from the date of alleged occurrence. The Court has further found that no offence under Section 363/365 IPC is made out against the accused.
8. The aforesaid findings of the trial Court have been further affirmed by Additional Sessions Judge, Gurdaspur while passing the impugned judgment dated 22.12.2010, observing as under:-
"14. After hearing the learned counsel for the defacto complainant/revisionist and learned counsel for the respondents and examining the lower Court record, this Court is of the view that it is undisputed fact that CRM No.M-10281 of 2011 6 FIR was registered under Section 363/511/34 IPC. The police has presented the challan against the accused under Section 363/511/34 IPC. Undisputedly Kuljinder Kaur complainant (herein revisionist) was aged 22 years and the offence under Section 363 IPC was not made out. The FIR registered was in respect of the offence under Sections 363/511/34 IPC and the police was well within the knowledge of the fact that Kuljinder Kaur complainant (herein revisionist) was 22 years of age. Section 363 IPC deals with the punishment of kidnapping any person from India or from lawful guardianship. Kidnapping had been denied under Section 359 IPC, which is of two kind i.e. Kidnapping from India and kidnapping from lawful guardianship. As it was the case of the complainant Kuljinder Kaur that she was attempting to be kidnapped for taking out of India. So section 360 IPC was not applicable. However, for the purpose of Section 363 IPC (Penal Section) the offence under Section 361 is required to be looked into. The section 361 is applicable to the case where some minor or unsound person is taken out from the possession of lawful guardianship. In case of female she must be below 18 years of age. So the case in such circumstances under Section 363 IPC could not be registered against the accused. The police without caring for the provisions of law presented the challan even under Sections 363/511/34 IPC and which was forwarded by the APP for the State connected with said Court. So it is clear that the police has acted blindly without caring for the law and provisions of law. In such type of circumstances the law is laid down in CRM No.M-10281 of 2011 7 Century Spinning & Manufacturing Co.Ltd. versus The State of Maharashtra AIR 1972 Supreme Court page 515 is applicable where the Hon'ble Supreme Court of India has held that the Court must not blindly adopt the decision of the prosecution.
15. FIR registered in this case shows that there is reference of FIR got registered by Dr. Jasdip Kaur against the uncle and aunt of the present complainant- revisionist and against the sister of the complainant- revisionist. So, FIR registered against the sister of the present revisionist is not foreign to the revisionist/complainant. Even if the prosecution or the Investigating Officer has not relied upon such documents while conducting the investigation and such documents being public record is mentioned in the FIR itself, the Court is well within the ambit to take judicial notice of the same especially when the complainant-revisionist herself relying upon the same. Even otherwise from the statements nothing is mentioned that she was put into the car and car was driven with an attempt to abduct so as to make out the case under Section 365 IPC. Section 365 IPC deals with kidnapping or abducting any person with intent to cause secretly and wrongfully confined. The element as per FIR shows that the version of the complainant remained that she was being abducted for compelling the sister of the complainant to appear before the police in the FIR got registered by respondent No.2. It is a case that she openly being dragged out side the college premises, so there was nothing secret or wrongful confinement. The learned lower Court has rightly held that ingredients of Section 365 IPC were CRM No.M-10281 of 2011 8 not made out nor the ingredients of Section 362 IPC are made out. It is not a case that she was focibly compelled to sit in the Car so as to satisfy the ingredients of abduction. It is also not a case where any act of inducement by deceitful means has been performed by the accused so as to let the revisionist- complainant to go such place. The learned lower Court has rightly held that the offence of abduction is not made out punishable under Section 365 IPC.
16. No doubt on the basis of law laid down and put forth by the learned counsel for the revisionist the Court at the time of framing of the charge cannot look into the documents which are not relied upon by the investigation, yet where the documents which are mentioned in the FIR itself and not foreign to the maker of the FIR and had not been disputed to be false or not in existence, then the Court in such circumstances has the power to look into such document which is just and material for adjudication of the case and to look into the same to come to the conclusion as to whether the circumstances are such that the other view for discharge of the accused is possible or not. It is the essence of law as settled by the Hon'ble Supreme Court of India in Sajjan Kumar versus Central Bureau of Investigation 2010(4) Recent Criminal Reports page 382 and in P. Vijayan versus State of Kerala & Anr 2010(1) Recent Criminal Reports page 826.
17. This Court finds no infirmity in the order passed by the learned lower Court. Revisional Court can interfere only if the order of the face of it is patently CRM No.M-10281 of 2011 9 illegal or beyond jurisdiction. This Court finds no force on merits in the revision and the same is dismissed."
9. It may be noticed, at this stage, that the main argument of learned counsel for the petitioner before this Court is that the Courts below have discussed the material/evidence put forth by the defence, which could not have been considered while framing charge.
10. However, the aforesaid argument is fallacious, as a perusal of the impugned orders would show that the factum of registration of FIR by accused Jasdeep Kaur against the uncle and aunt of the petitioner and her sister, is mentioned in the FIR in question itself. Moreover, the FIR registered against the petitioner is a public document and Court was well within its ambit to take judicial notice of the same, especially when the petitioner herself has relied upon the said facts. Even before this Court, learned counsel for the petitioner was unable to satisfy this Court as to how from the said facts and circumstances of the case, as shown in police report under Section 173 CrPC, any offence under Section 363 or 365 IPC was made out.
11. Thus, I find no merit in this petition.
12. Dismissed.
March 14, 2012 ( RAKESH KUMAR GARG ) ak JUDGE