Punjab-Haryana High Court
Dalip Singh vs State Of Haryana on 7 August, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Revision No.2258 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Revision No.2258 of 2012(O&M)
Date of Decision:August 07, 2012
Dalip Singh ....Petitioner
Versus
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.R.S.Cheema, Senior Advocate,
with Mr.Karambir Singh Nalwa, Advocate,
for the petitioner.
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MEHINDER SINGH SULLAR, J.(oral) The matrix of the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record is that, on 25.04.2010 at about 5.30 PM, as soon as complainant- Arun Malik, his brother Amit Malik and Hanit were present in the room, in the meantime, they received a telephonic call from Ankit that he was beaten by Deepak Dhankar, Avesh Dahiya, Varinder Dahiya @ Chintu and Goldy etc., and was lying at the Old Market near M.M.Mullana College and requested them to get him admitted in some hospital. In the wake of message, they went to the disclosed place and brought Ankit to Mullana Medical Hospital. On the way, they noticed the presence of the accused, who caused injury to Ankit. The matter was reported to the police.
2. The case of the prosecution further proceeds that on 28.04.2010 at about 8 PM, when complainant-Arun Malik, Amit Malik and Kamal were present at Holi Chowk, meanwhile, accused Avesh Dahiya, Deepak Dhankar, Deepak Yadav, Mahesh Malik, Sandeep Kataria, Goldy, Varinder Dahiya and Ashok @ Criminal Revision No.2258 of 2012 2 Shoki, students of HM and B.Tech 2nd year, came there armed with gandasies, swords, lathies and knives. Avesh Dahiya raised a 'lalkara' asking his other co- accused to hold them, so, that they could not escape and declared them to teach a lesson for getting the case registered against them in the police station regarding previous incident. All of them with the intention to kill, attacked and caused specific multiple injuries to the brother of the complainant with their respective weapons. The complainant and his companion ran away from the spot out of fear. All the accused killed Amit Malik, brother of the complainant, and fled away from the place of occurrence with their respective weapons. Possibly, it cannot be denied that there are direct allegations against the petitioner in the statement of complainant-Arun Malik, which formed the basis of FIR that all the accused have committed the murder of Amit Malik, at the instance of Dalip Singh, Security Officer(petitioner).
3. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the prosecution claimed that all the accused(including the petitioner-Dalip Singh) hatched a criminal conspiracy, to commit the murder of Amit Malik. They were members of an unlawful assembly armed with deadly weapons and in prosecution of common object of the said assembly, actually committed the murder of Amit Malik, by intentionally causing his death. In the background of these allegations and in the wake of complaint of complainant-Arun Malik, the present criminal case was registered against the accused, by means of FIR No.89 dated 29.04.2010, for the commission of offences punishable under Sections 120-B, 148, 149 and 302 IPC, by the police of Police Station Mullana, District Ambala, in the manner depicted hereinabove.
4. During the course of investigation, the police did not challan Avesh Dahiya, Deepak Yadav, Dalip Singh(petitioner), Sandeep Kataria and Ashok Kumar @ Shoki and submitted the challan/final police report in terms of Section Criminal Revision No.2258 of 2012 3 173 Cr.P.C. against the remaining accused. Having completed all the codal formalities, the accused were accordingly charge-sheeted for the commission of the indicated offences and the case was fixed for evidence of the prosecution.
5. The prosecution in order to substantiate the charges framed against the accused, examined PW2 complainant Arun Malik, who has, inter alia, reiterated the participation of all the accused (including the petitioner) contained in the FIR. Consequently, in pursuance of application under Section 319 Cr.P.C. and on the basis of substantive evidence of Arun Malik(PW2), Avesh Dahiya, Deepak Yadav, Dalip Singh, Sandeep Kataria and Ashok Kumar @ Shoki, were summoned as an additional accused, to face the trial along with their other co-accused by the trial Court, by virtue of summoning order dated 12.09.2011(Annexure P-6), the operative part of which is as under:-
"I may also state that the deposition of PW2 Arun Malik clearly makes out a clear cut case under section/s 148/149/302/120-B IPC against the above stated five persons also. Rather, such evidence shows that they had also committed the crime in question. They have been specifically named by the said PW in his deposition before the court and have been attributed the roles stated by him in its deposition. Such evidence, if taken as true, will lead to the conviction of the said five persons. It being so, they deserve to be summoned as additional accused in the instant case and deserve to be tried together with the accused facing the trial in the instant case.
I may also state that stand taken by the accused facing trial, that the deposition of PW2 Arun Malik is false, cannot be commented upon at this stage. Rather, any opinion on the said stand shall amount to expression on the merits of the instant case. It is not warranted at this stage.
For the reasoning given and discussion made in the preceding portion, the application in question is allowed and the five persons mentioned in the application in question are ordered to be summoned as additional accused to face trial in the instant case under sections 148/149/302/120-B IPC. However, nothing mentioned in this order shall affect the decision of the case in question on merits."Criminal Revision No.2258 of 2012 4
6. Thereafter, summoning the additional accused, the trial Judge has again framed the charges against all the accused including the petitioner, on accusation of having committed the offences punishable under Sections 120-B, 148, 149 and 302 read with Section 149 IPC, by way of impugned order and charge-sheet dated 11.05.2012 and the case was slated for evidence of the prosecution.
7. The petitioner accused-Dalip Singh, instead of submitting to the jurisdiction of the trial Court, straightway jumped to prefer the present revision petition, to challenge the impugned order and charge-sheet dated 11.05.2012, invoking the provisions of Section 401 Cr.P.C. That is how, I am seized of the matter.
8. Having heard the learned Senior Counsel for the petitioner at quite some length, having gone through the evidence/material on record and the legal position with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant revision petition in this context.
9. Ex facie, the argument of the learned Senior Counsel that, since there is no (sufficient) legal evidence on record, so, the petitioner-accused could not be charge-sheeted for the pointed offences, is neither tenable nor the observations of the Hon'ble Supreme Court in cases Union of India Versus Prafulla Kumar Samal and another, AIR 1979 Supreme Court 366 and Niranjan Singh Karam Singh Punjabi Versus Jitendra Bhimraj Bijja, AIR 1990 SC 1962, are at all applicable to the facts of the present case, wherein, it was observed that the Judge while considering the question of framing the charge under Section 227 of the Code has, the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out or not. Whether the materials placed before the Court disclose grave suspicion against the accused, which has not been properly explained, the Criminal Revision No.2258 of 2012 5 Court will be fully justified in framing a charge and proceeding with the trial. It was also held that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application and the court cannot act merely as a Post Office or mouthpiece of the prosecution, but has to consider the broad probabilities of the case.
10. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the petitioner, at this stage, in the present controversy.
11. At the very outset, what cannot possibly be disputed here is that, the petitioner-Dalip Singh has only been charge-sheeted for hatching a criminal conspiracy, helping and aiding the main accused, who committed the murder of Amit Malik. The offence of criminal conspiracy punishable under Section 120-B IPC is an independent offence and some general evidence pertaining to the conspiracy would be sufficient, to form part of the charge of conspiracy in the charge-sheet. As a matter of fact, some connecting link or connecting factor somewhere here and there in the evidence would be good enough to frame the charge. The stage of framing of charge and the stage to establish the guilt of conspiracy after the trial cannot possibly be equated and placed at par. There is a very less possibility of direct evidence and the evidence of hatching such criminal conspiracy has to be gathered from variety of facts, situations and circumstances, oozing out from the evidence brought on record by the prosecution at the time of final conclusion of the trial. The reliance in this regard can be placed to a judgment of the Hon'ble Supreme Court in case Hardeo Singh Versus State of Bihar and others, AIR 2000 Supreme Court 2245.
12. Sequelly, at the stage of framing the charge, the Court has to prima facie consider, whether there is sufficient ground for proceeding against the accused or not and the Court is not required to appreciate the evidence sufficient Criminal Revision No.2258 of 2012 6 for conviction, at this stage.
13. A similar question was considered by the Hon'ble Apex Court in case State of M.P. Versus S.B.Johari and others, AIR 2000 Supreme Court 665. Having interpreted the provisions of Sections 227/228 of the Cr.P.C., it was ruled that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction of the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed.
14. As is evident from the record that, besides other attending circumstances, there is positive evidence on record in the shape of FIR and statement of PW2, to prima facie prove that the petitioner has hatched a criminal conspiracy, whereas the other co-accused committed the murder of Amit Malik, a young student of the University. There is a clear motive for the accused to commit the pointed heinous offence. The substantive evidence of PW2 was accepted by the trial Court for summoning the petitioner as an additional accused vide order (Annexure P-6). Therefore, it cannot possibly be saith that there is no evidence to frame the charge of the criminal conspiracy against the petitioner in this respect, as urged on his behalf.
15. Faced with the grave situation and taking the benefit of his usual ability, the next celebrated argument of the learned Senior Counsel that since, the impugned order of framing of charge and charge-sheet are non-speaking orders and the result of non-application of mind, so, the same deserve to be set aside, lacks merit as well.
16. It is now well-settled legal proposition of law that, if the trial Court decides to frame the charge, there is no requirement that he should pass an order Criminal Revision No.2258 of 2012 7 specifying the reasons as to why he had to do so. The framing of charge itself is a prima facie order, indicative of the fact that the trial Judge has formed the opinion upon considering the police report, other documents and after hearing both the parties that there is a ground for presuming that the accused has committed the offence, as contemplated under Sections 225 to 228 Cr.P.C. This matter is no more res integra and is now well-settled.
17. An identical question came to be decided by the Hon'ble Supreme Court in case U.P.Pollution Control Board Versus Mohan Meakins Limited and others, 2000(3) SCC 745, wherein it was ruled as under(para6):-
"6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah and another Versus State of West Bengal, 2000(1) RCR(Crl.) 407 : 2000(1) SCC 722. The following passage will be apposite in this context:
"If there is no legal requirement that the trial Court should write on order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work? The time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to overt all (sic) causing avoidable delays. If a Magistrate is to write detailed orders at different stages, the snail-paced progress of proceedings in trial Courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages of the trial."
(Emphasis supplied)
18. Therefore, if the totality of entire material/evidence brought on Criminal Revision No.2258 of 2012 8 record and the legal proposition are put together, then to me, the conclusion is inescapable that there is sufficient material on record and the trial Court has rightly framed the charges of criminal conspiracy against the petitioner as well, through the medium of impugned order/charge-sheet dated 11.05.2012. Such order/charge- sheet cannot legally be set aside, while exercising the limited revisional jurisdiction of this Court, unless the same are totally illegal and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned Senior Counsel, so, the impugned order/charge-sheet dated 11.05.2012 deserve to be and are hereby maintained in the obtaining circumstances of the case.
19. No other legal point, worth consideration, has either been urged or pressed by the learned Senior Counsel for the petitioner.
20. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial, as there is no merit, therefore, the instant revision petition is hereby dismissed as such.
Needless to mention that, nothing recorded hereinabove, would reflect, in any manner, on merits during the course of trial, as the same has been so observed for a limited purpose of deciding the present revision petition in this relevant direction.
August 07, 2012 (MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter? Yes/No
Criminal Revision No.2258 of 2012 9