Punjab-Haryana High Court
Sunil Kumar vs State Of Punjab on 13 February, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Revision No.3278 of 2011 ..1..
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No.3278 of 2011
Date of Decision: 13thFebruary, 2013
Sunil Kumar
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Rajbir Wasu, Advocate,
for the petitioner.
Mr.Piyush Singla, Deputy Advocate
General, Punjab.
***
Naresh Kumar Sanghi, J.
Prayer in this criminal revision petition is for setting aside the judgment dated 07.09.2011 passed by the learned Additional Sessions Judge (Fast Track Court) Jalandhar, to the extent that the case was wrongly remanded to the Court of the learned Judicial Magistrate Ist Class, Jalandhar, to examine the handwriting expert and to decide the matter afresh.
Brief facts of the case are that on 08.07.2000, Subash Chander-complainant got recorded his statement before ASI Kulwant Singh to the effect that his father used to go to abroad in connection with business. A few letters were received in the name of his father on 26.06.2000; 02.07.2000; 05.07.2000 and 08.07.2000 and ` 3,00,000/-, ` 1,50,000/-, ` 2,00,000/- and ` 2,00,000/- respectively were demanded. It is written in the letters that the money be kept near Parchin Shiv Mandir, Dhobi Ghat, and if Criminal Revision No.3278 of 2011 ..2..
the money was not given, both the children will be killed alike the children of Kamal. The letters were written in Hindi. He further stated that on receipt of the letters, he along with his father and uncle, Gopal Krishan, made inquiry and they were very sure that these letters had been written by Sunil Kumar son of Murlidharan Pandit, priest of the Hanuman Mandir, Maqdumpura. He further stated that a letter of the same nature was also received by Vinod Bhalla, the owner of King Hotel. After recording statement of the complainant, a ruqa was sent to the police station for registration of the case, on the basis of which, the formal FIR was recorded. Investigation was carried out. Accused was arrested and after completion of necessary formalities of investigation, challan against the accused was presented before the learned Illaqa Magistrate.
In order to prove its case against the accused before the learned trial court, the prosecution had examined the following witnesses:-
PW-1 Om Parkash PW-2 Subash Chander PW-3 Gopal Krishan PW-4 Satpal PW-5 Ashrafi Lal PW-6 Raman Negi PW-7 Kulwant Singh After conclusion of the prosecution evidence, statement of the petitioner-accused was recorded under Section 313, Cr.P.C.
In his defence, the accused (petitioner) examined DW-1- Mul Chand.
The learned trial court after appreciation of the law and the evidence brought on record, convicted the accused (petitioner) Criminal Revision No.3278 of 2011 ..3.. for the offence punishable under Section 387, IPC and sentenced him to undergo rigorous imprisonment for three years and to pay fine of ` 1000/- and in default thereof, to undergo further rigorous imprisonment for one month.
The petitioner challenged the judgment of conviction and sentence before the learned Additional Sessions Judge (Fast Track Court) Jalandhar, who vide order dated 07.09.2011 set aside the judgment of conviction and sentence passed by the learned trial court and remitted the matter to the learned trial court by holding as under:-
"13. That main contention of learned counsel for the appellant/accused is that the report of Forensic Science Laboratory, Chandigarh, is not admissible in evidence as no opportunity of cross-examination has been given to the accused and in support of his contention, learned counsel for the appellant/accused has relied upon the case law cited as Ayyub Ali vs. State of Madhaya Pradesh, 2008 Criminal Law Journal, 2216, wherein it has been held in para No.7 that it is well settled legal proposition that the mere exhibition of handwriting expert report is not sufficient to consider it in evidence unless the expert is examined in Court and an opportunity of cross- examination is given to the defence. Provision of Section 293 of the Cr.P.C is not applicable for handwriting expert report. The handwriting expert is falling under this provision, therefore, the examination of handwriting expert was must.
14 Even our own Hon'ble High Court in Nirmal vs. State of Punjab, 2001(4) RCR(Criminal)622, has held that the report of handwriting expert, even if it has been given by the expert working in the Forensic Science Laboratory, would not be per se admissible under Section 293, Cr.P.C, unless the maker of said report is summoned and Criminal Revision No.3278 of 2011 ..4..
examined as a witness and the other side is given an opportunity to cross-examine the witness. In my view, the facts of these authorities qua the point in controversy are fully applicable to the facts of the present case, because in the instant case also the prosecution before the lower court has proved the handwriting expert report as Ex.PZ, but they have not examined the author of this report. The learned Lower Court has not summoned the handwriting expert by taking the view that the report of the handwriting expert is admissible under Section 293, Cr.P.C but as per law cited supra, the provision of Section 293 of the Cr.P.C is not applicable for handwriting expert. Moreover, in the report Ex.PZ the expert has been given note that detailed reasons in support of the opinion expressed above, will be submitted at the time of evidence, if needed.
15. In view of the above said discussion, I am of the considered view that the examination of the handwriting expert is necessary. So, the conviction in this aspect is set aside and the case is remanded back to the successor court of Sh.Manoj Kumar Singla, PCS, Judicial Magistrate Ist Class, Jalandhar, for 10.10.2011 with a direction to examine handwriting expert of Ex.PZ and give an opportunity to accused to cross-examine him and thereafter, decide the case afresh in view of the evidence of the expert. Parties are directed to appear before the said court on the said date. Lower Court record be sent back. Appeal file be consigned to the record room."
The petitioner(accused) has challenged the order dated 07.09.2011 by way of the present criminal revision petition mainly on three counts:-
1. The Appellate Court had no jurisdiction to remand the case of the learned trial court for recording the evidence to fill up the lacuna in the prosecution case.
Criminal Revision No.3278 of 2011 ..5..
2. The report, which was not per se admissible, would not become admissible by way of leading evidence.
3. The petitioner had already faced the agony of the trial for sufficient long time, therefore, the case should not have been sent to the learned trial court for recording the evidence of the handwriting expert.
Heard.
The material available on record perused. During the course of the arguments in appeal, the learned Appellate Court came to the conclusion that the report issued by the handwriting expert was not per se admissible under Section 293, Cr.P.C, therefore, the statement of the handwriting expert was necessary. The learned trial court had not summoned the handwriting expert by taking the view that the report of the handwriting expert was admissible under Section 293, Cr.P.C, but this view of the learned trial court was erroneous one and has resulted into the miscarriage of justice, because to prove the report of the handwriting expert, it was essential to get the handwriting expert examined. There was no filling up of the lacuna in such circumstance. The report issued by the expert was already available on record, therefore, there is no substance in the first submission of the learned counsel for the petitioner.
The second submission of the learned counsel for the petitioner is that the report which is not per se admissible would not become admissible by examination of the handwriting expert is devoid of force. The person, who had prepared and issued the report, can very well prove the said report and once it is proved then it would become admissible.
Criminal Revision No.3278 of 2011 ..6..
The last submission of the learned counsel for the petitioner that the petitioner had already faced the agony of trial for a long time, therefore, the learned Appellate Court should not have remitted the matter to the learned trial court is also devoid of any force. The allegations emerging on record against the petitioner are serious in nature. He was booked vide FIR No.134 dated 08.07.2000 for the offence punishable under Section 387, IPC. The learned trial court held him guilty and awarded the sentence vide judgment dated 06.06.2008 and the learned lower Appellate Court decided the matter on 07.09.2011. Therefore, there was no inordinate delay in deciding the case. Even otherwise, the seriousness of the offence alleged to have been committed by the accused does not permit this Court to take a view in favour of the petitioner, as argued by the learned counsel for the petitioner.
Learned counsel for the petitioner has placed reliance on a judgment passed by this Court in Pashori Lal vs. Punjab State, 1980(1)ILR (Punjab) 75, wherein this Court held that after setting aside the judgment of conviction and sentence, remittance of the case to the learned trial court for recording new prosecution witness was not permissible under the Code.
In State of Haryana vs. Hari Ram, 1987(2)RCR (Criminal) 465, the learned trial court had closed the evidence of the complainant without giving sufficient opportunity to produce witnesses. In these circumstances, the order of the learned trial court was set aside, however, the matter was not remanded as the accused had suffered agony of trial for 07 years, holding that the re- trial would be very harsh on the accused.
The similar views were expressed in the matters of State Criminal Revision No.3278 of 2011 ..7..
of Haryana vs. Lal Chand, 2000(2) RCR (Criminal) 522; Shyam Lal vs. State of Haryana, 1986(1) RCR (Criminal) 555; Jagdish Singh vs. State of Haryana, 1987(1) RCR (Criminal) 182, Gurdial Singh vs. State of Haryana, 1987(1) RCR (Criminal) 209, Vijay Kumar vs. State of Punjab, 1985(1) RCR (Criminal) 51, and Ram Kishan vs. State of Haryana, 1986(1) RCR (Criminal) 169.
All the authorities cited hereinabove except Pashori Lal's case (supra) are relating to the Prevention of Food Adulteration Act wherein the maximum punishment of imprisonment prescribed is for three years. However, in the present case in hand, the petitioner has been charged for the offence punishable under Section 387, IPC for putting person in fear of death or or grievous hurt in order to commit extortion and the punishment prescribed for the same is imprisonment up to 07 years. There is no conflict with regard to the view expressed by the Hon'ble High Court in the above cited judgments but keeping in view the serious allegations against the petitioner mere passage of time would not permit this Court to set aside the well reasoned order passed by the learned Additional Sessions Judge whereby he remitted the case to the learned trial court for recording of the evidence of handwriting expert.
As a sequel to the above, there is no force in the submissions made by the learned counsel for the petitioner and as such, the present petition is hereby dismissed.
(NARESH KUMAR SANGHI)
February 13, 2013 JUDGE
seema