Punjab-Haryana High Court
Raghuwant Singh vs State Of Punjab And Another on 4 February, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Misc. No.M-37845 of 2012
.....
Date of decision:4.2.2014
Raghuwant Singh
...Petitioner
v.
State of Punjab and another
...Respondents
....
(2) Criminal Misc. No.M-2840 of 2013 (O&M)
.....
Avtar Singh Dhaliwal and others
...Petitioners
v.
State of Punjab and another
...Respondents
....
Coram: Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. J.S. Chahal, Advocate for the petitioners.
Mr. K.S. Aulakh, Assistant Advocate General, Punjab for
the respondent-State.
Mr. Rajat Malhotra, Advocate for the complainant-
respondent No.2.
.....
Inderjit Singh, J.
This order will dispose of the above mentioned two criminal miscellaneous petitions i.e. Criminal Misc. No.M-37845 of 2012 filed by Raghuwant Singh and Criminal Misc. No.M-2840 of 2013 filed by Avtar Singh Dhaliwal, Harpal Kaur, Jaspreet Kaur and Gian Kaur under Section 482 Cr.P.C. praying for quashing of FIR No.141 dated 28.12.2002 Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [2] registered for the offences punishable under Sections 406, 498-A, 495, 420, 148 and 149 IPC at Police Station Raikot, District Ludhiana (Annexure-P.1) and the order dated 5.5.2010 passed by learned Judicial Magistrate Ist Class, Jagraon (Annexure-P.5) and the order dated 17.3.2012 passed by learned Additional Sessions Judge, Ludhiana (Annexure-P.6).
The brief facts of the case are that the present FIR has been got registered by Gurinderdeep Kaur allegedly stating that niece of accused Karnail Singh alias Jarnail Singh became friendly and told the complainant that her maternal uncle's friend is coming from Canada and if she is interested in the marriage with him, he would take her to Canada also. Then accused Raghuwant Singh and Jaspreet Kaur niece of Karnail Singh came to the house of the complainant on 7.1.1998 and they assured that they have very close relation with the boy and they knew everything about them. They again rang-up on 12.1.1998 that they have to go to Jalandhar to see the boy. On 14.1.1998, the complainant, her parents and near relatives along with above mentioned accused Harpal Kaur, Jaspreet Kaur, Avtar Singh and Surinder Kaur went to Jalandhar. Marriage took place on that very day. There are allegations that then they started demanding money and `20,000/- were paid to Raghuwant Singh and Gian Kaur etc. After the investigation, challan was presented under Section 173 Cr.P.C. only against Karnail Singh alias Jarnail Singh and Surinder Kaur, who have already been declared proclaimed offenders. All these petitioners have been kept in column No.2 being found innocent. Later Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [3] on, application has been filed under Section 319 Cr.P.C. and these petitioners have been summoned.
The order was set aside in the revision petition and then the Magistrate again passed the order on 5.5.2010 summoning the present petitioners under Section 319 Cr.P.C. Revision petition was filed, which was also dismissed vide order dated 17.3.2012 by the learned Additional Sessions Judge, Ludhiana and hence, this petition has been filed.
Notice was given to the respondents, who appeared. Learned counsel for complainant-respondent No.2 filed reply in one of the petitions i.e. Criminal Misc. No.M-2840 of 2013 and made a statement that it be read in the other connected petition also.
Learned Assistant Advocate General, Punjab and learned counsel appearing for complainant-respondent No.2 contested this petition.
At the time of arguments, learned counsel for the petitioners argued that the application under Section 319 Cr.P.C. cannot be filed second time as the first application had already been dismissed. Learned counsel for the petitioners further contended that when nobody is facing the trial before the trial Court, then the present petitioners cannot be summoned to face trial alone. Learned counsel also argued that the complainant has already re-married and has taken the divorce from Karnail Singh alias Jarnail Singh, her previous husband. He also argued that Karnail Singh alias Jarnail Singh is already dead. He argued that the orders passed by the learned Magistrate as well as the learned Additional Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [4] Sessions Judge are illegal.
On the other hand, learned Assistant Advocate General, Punjab as well as learned counsel for the complainant-respondent No.2 argued that this Panchayati compromise is only regarding the divorce. No where there is any compromise regarding the present FIR. They also argued that there is no bar to file second application under Section 319 Cr.P.C. or to pass order on the application filed under Section 319 Cr.P.C. Learned counsel for the complainant argued that even if nobody is facing the trial, even then the order can be passed. He placed reliance on the judgment of this High Court in Davinder Kaur v. State of Punjab, 2002 (2) R.C.R. (Cr.) 378.
I have gone through the record and have heard learned counsel for the parties.
From the record, I find that in the present case challan under Section 173 Cr.P.C. has been presented against Karnail Singh alias Jarnail Singh and Surinder Kaur only and both of them were declared proclaimed offenders at that time. The present petitioners were kept in column No.2 as they were found innocent during the investigation. As the challan was filed against the proclaimed offenders, therefore, as per zimini orders placed on record, PWs were summoned under Section 299 Cr.P.C. The complainant Gurinderdeep Kaur has been examined in this case as PW-1 under Section 299 Cr.P.C. and an application was filed by the Public Prosecutor before the Magistrate, which was allowed by the Sub Divisional Judicial Magistrate, Jagraon by passing the order that an Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [5] application under Section 319 Cr.P.C. is pending and there is nobody to defend that application, as such the same is allowed vide order dated 24.8.2005. A revision petition was filed by Raghuwant Singh etc. petitioners, which was accepted vide order dated 24.7.2007 by the learned Additional Sessions Judge, Fast Track Court, Ludhiana and the order dated 24.8.2005 was set aside. As per the interim orders, PWs were summoned under Section 299 Cr.P.C. Again on the same application filed under Section 319 Cr.P.C., the present revision petitioners have been summoned.
As regards the argument that second application is not maintainable, I find that there is no such bar that second application under Section 319 Cr.P.C. cannot be filed. The order of the Sub Divisional Judicial Magistrate was set aside it being not sustainable and was passed without discussing any evidence. Therefore, the application under Section 319 Cr.P.C. can be filed second time also if some evidence is produced on the record against the accused, who are to be summoned.
From the perusal of the record, it is clear that the challan was presented against the proclaimed offenders accused Karnail Singh and Surinder Kaur and the statement of the complainant was recorded under Section 299 Cr.P.C. In para No.8 of the above judgment, cited by the learned counsel for respondent No.2, it is held as under:-
"In the light of the principles laid down in the above mentioned cases, the facts of the present case has to be adverted to in order to decide the controversy raised in this Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [6] petition. It is apparent from the record that the Additional Chief Judicial Magistrate after taking cognizance had not chosen to issue any process to the petitioner-accused. Rather, at the first instance he proceeded to record evidence in terms of the requirement of Section 299 of the Code. Thereafter, statements of Ex-Capt. Puran Singh (PW-1) and Harbans Singh (PW-2) were recorded on 26.2.1998. It is thereafter the prosecution moved the application under Section 319 of the Code with a prayer to summon the petitioner-accused to face trial in respect of the offence under Section 420 Indian Penal Code. It cannot be disputed that proceedings taken under sub-section (1) of Section 299 of the Code though judicial proceedings, cannot be construed as inquiry or trial because the statements of the witnesses recorded can only be accepted in evidence in the eventuality where the witnesses, whose statements had been recorded were subsequently found dead or whose presence could not be procured. This limitation flows from the provisions of Section 299 of the Code."
In view of the above law laid down by this Court, it is clear that the proceedings under Section 299 Cr.P.C. though can be held as judicial proceedings, but cannot be construed as inquiry or trial because the statements of the witnesses, which had been recorded, who were subsequently found dead and whose presence cannot be produced, can be accepted only in evidence. It is clear that the statements recorded under Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [7] Section 299 Cr.P.C. can only be used if the witnesses are dead or whose presence could not be produced at the later stage when the accused are arrested during the trial. A perusal of the present order of the Magistrate no where shows that he had summoned the accused under Section 190 Cr.P.C. The present petitioners have been summoned only under Section 319 Cr.P.C. on the basis of the statement of PW-1 Gurinderdeep Kaur recorded in the Court under Section 299 Cr.P.C. The learned Magistrate has no where discussed the other material on the record, the statements recorded under Section 161 Cr.P.C. etc. Therefore, this order, in no way, can be held as passed under Section 190 Cr.P.C, but only under Section 319 Cr.P.C. As already held, the statements recorded under Section 299 Cr.P.C. cannot be held as evidence during inquiry or trial but only recorded statements in judicial proceedings, therefore, on the basis of this evidence, the application under Section 319 Cr.P.C. cannot be allowed. Section 319 Cr.P.C. provides as under:-
"319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [8] be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-
section (1) then-
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
As regards, the FIR, the present petitioner Raghuwant Singh is brother of Karnail Singh, husband of the complainant-Gurinderdeep Kaur, Harpal Kaur is sister of Karnail Singh and Avtar Singh is husband of Harpal Kaur. There are no allegations in the FIR or cogent evidence regarding entrustment of any dowry articles to them. Again there is no allegation regarding any harassment on the basis of demand of dowry to the complainant. There are only general allegations regarding payment of `20,000/- and regarding harassment.
In view of the vague and general allegations and the present petitioners are being only relatives of the husband of the complainant, Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. Nos.M-37845 of 2012 etc. [9] they cannot be held as beneficiaries and in view of the fact that during investigation they have been found innocent, therefore, I find merit in these petitions and the same are allowed. Hence, the impugned orders passed by the learned Judicial Magistrate and the revisional Court are illegal and are set aside. FIR No.141 dated 28.12.2002 registered for the offences under Sections 406, 498-A, 495, 420, 148 and 149 IPC at Police Station Raikot, District Ludhiana (Annexure-P.1) and all other subsequent proceedings arising therefrom qua the petitioners are hereby quashed qua the petitioners.
February 4, 2014. (Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2014.03.06 10:28 I attest to the accuracy and integrity of this document Chandigarh