Punjab-Haryana High Court
Thath Singh And Others vs State Of Haryana And Another on 23 September, 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. R. No.2597 of 2010
Date of Decision:23.9.2010
Thath Singh and others .... Petitioners
Versus
State of Haryana and another .... Respondent
CORAM: Hon'ble Ms. Justice Nirmaljit Kaur
Present: Mr. Sanjiv Gupta, Advocate for the petitioners.
****
1.Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2.To be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
NIRMALJIT KAUR, J.
Prayer made in the present revision petition is for setting aside order dated 3.8.2010 passed by learned Additional District Judge, Karnal, whereby the charges have been framed against the petitioners.
The allegations made in the complaint against the accused are as under
" On 9.11.2005 at 5.30 a.m. the complainant alongwith his brother Dharam Singh, Devinder son of Mukhtiar Singh, Surjit Singh and Karnail Singh were sleeping in a Kotha. In the meantime, Thath Singh son of Narain Singh, Mahinder Singh son of Narain Singh, Naveen, Parveen Sons of Sham Singh, Ravinder, Bhiku and two sons of Mohinder Singh alongwith Om Parkash,who was posted as Tehsildar, Nilokheri, all of a sudden with a common object came there and demolished the Kotha. Thath Singh who was armed with a gun raised a Lalkara that they should be Crl. R. No.2597 of 2010 -2- killed and should be taught a lesson for purchasing the land. Upon this, Ravinder and Bhiku who were armed with gandasi caused blows on the person of the complainant which fell on his abdomen and head. Mohinder gave a gandasi blow on the person of the complainant. Both sons of Sham Singh also caused injuries on the person of the complainant with the help of lathis. Nain Pal Rana and Mahinder Singh also caused injuries to the complainant with the help of lathis and Thath Singh fired gun shots in the air. Thath Singh then placed the gun on the chest of the complainant. Dharam Singh was also caused injuries by Nain Pal, Mahinder sons of Sham Singh, Devinder Singh son of Mukhtiar Singh was caused injuries by Om Parkash accused with the help of a sword. He was also caused injuries by the sons of Sham Singh, Nain Pal Rana and Mahinder Singh. On hearing the commotion, Karnail Singh, Surjit Singh sons of Inder Singh and Gurmej Singh son of Jarnail Singh came to the spot and rescued the injured from the clutches of the accused. While leaving the spot, Thath Singh etc., also committed criminal intimidation towards the complainant. Thath Singh etc also took away motor cycles bearing registration No.HR-5-8110, HR 05 1721 made Hero Honda, Mobile Phone No.9255107189, one Gas Cylinder, One drum of diesel, an empty drum, one wooden Suhaga and a colour TV belonging to the complainant party." Crl. R. No.2597 of 2010 -3-
Vide order dated 21.3.2007, learned Judicial Magistrate Ist Class, Karnal, while examining the oral and documentary evidence made in the complaint by the complainant side, summoned the present petitioners through Non-Bailable-Warrants of Arrest to face trial for the commission of offences punishable under Sections 285,323,324,326,435,447,395,397 and 120-B of IPC.
The offence punishable under Sections 395 and 397 IPC being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions vide order dated 27.1.2010 passed by Judicial Magistrate Ist Class, Karnal.
Thereafter, learned Additional Sessions Judge, Karnal, vide his order dated 3.8.2010 ordered to frame charge sheet against the present petitioners under Sections 148,323,324,325 (Alternative charge under Sections 326 of IPC) 435,447,285,395 and 397 read with Section 149 IPC. Accordingly, charges were framed against the present petitioners for the aforesaid offences.
While challenging the order framing the charge and the charge sheet, learned counsel for the petitioners submitted that the impugned order of charge dated 3.8.2010 as well as charge-sheet are totally against the law and facts proved on the record. It is conceded position on the record that the dispute was with respect to the land which complainant party alleged that they have purchased the same from the sister of petitioner No.1 as co- sharer. In fact, as per narration of the fact given by the complainant themselves in the complaint, it was alleged that vide agreement to sell dated 11.12.2003, the complainant and his two brother namely Karnail Singh and Jarnail Singh and sister Manjit Kaur allegedly purchased 14 acres of land in Crl. R. No.2597 of 2010 -4- village Garhi Bharal, Barsat, Faridpur and Mundi Garhi from Jatni Devi and Maya Devi both daughters of Narain Singh at the rate of Rs.2,50,000/- per acre. It was alleged that sale deeds were executed on 2.5.2005. It was further alleged that girdawaris were entered and the allegations were also levelled with respect to construction part. It is conceded position on the record that the land is still joint and is not partitioned and it is even not established that the alleged vendors ever given any specific portion/possession thereto, rather as per settled law, till the land is partitioned, no possession of any property can be delivered to anybody. Accordingly, the offence as alleged cannot be made out against the petitioners as they are in joint possession.
It is further submitted that the impugned charge-sheet and the order of charge in as much as no offence under Section 447 of the IPC is attracted in the context of present case because as per settled law, by virtue of alleged purchase the complainant party at the most became co-sharer in the land in question and as such, can not claim exclusive claim of partition of land. On the land which is joint, several co-sharers are deemed to be in possession as owners in every inch of land as such, no offence under Section 447 IPC can be attracted against the co-sharers. So far as the other allegations in the complaint are concerned, all these allegations are connected because as apparent from the complaint submitted on 9.11.2005 on the basis of which FIR No.424 dated 9.11.2005 was registered, there was no allegation of any theft or dacoiti and thereafter in order to implicate the petitioners, a false story has been propounded. Furthermore, neither there was any recovery nor there was any assertion in the FIR with respect to offence under Section 395 and 397 IPC and as such , on the mere allegation, Crl. R. No.2597 of 2010 -5- the charge cannot be framed.
It is also submitted that one important aspect which requires consideration of this Hon'ble Court is that two of the petitioners were of even tender age namely Parveen Kumar son of Sham Singh who was minor at that time were implicated as the date of birth of Parveen Kumar is 1.1.1993 which is apparent from the Secondary Examination certificate (Annexure P-7). Other accused namely Naveen was born on 1.1.1997, although has just completed the date of 18 years but all these aspects have not been taken into consideration whereas the charge could have not been framed qua juvenile and the matter should have been remitted to the Board concerned.
Reliance has been placed on the judgment of this Court rendered in the case of Gurmit Singh v. U.T. Chandigarh 2003(1) RCR (Criminal) 535 wherein charge under Section 307 IPC was quashed as there was no prospect of the case ending in conviction.
Reliance has also been placed on the judgment of Hon'ble the Supreme Court rendered in the case of Anuran Rastogi & Ors. v. State of UP and Anr. 2007(1) RCR (Criminal) 972 to substantiate his argument that Magistrate is not bound to take cognizance of the offences indicated in the police report.
Heard.
The specific allegation making out an offence has been levelled against the present petitioners. Besides, the evidence of almost all the witnesses has been recorded as pre summoning evidence. After taking into account the evidence before the Court, the petitioners were summoned under Sections 285,323,324,326,435,447,395,397 and 120-B of IPC. Crl. R. No.2597 of 2010 -6-
Argument of the learned counsel for the petitioners that they are in joint possession cannot be gone into at this stage. The question whether they are in joint possession or not would also be a question of evidence.
At the time of framing of charge all that has to be seen is whether prima facie case is made out or not.
In the case of Radhey Shyam v. Kunj Behari and others reported as 1989 Supp (2) SCC 572, Hon'ble the Supreme Court held that the High Court was not justified in going into meticulous consideration of evidence and appreciate documents and statements filed by the police at the stage of framing of charge and went on to held in para 9 that :
"9. The High Court has also deemed it necessary to quash the charge against respondents No.1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that respondents No.1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar v. Ramesh Singh. We find that the High Court's conclusion about the inadequacy of the evidence against respondents No.1 to 3, besides being a premature assessment of evidence, is also attributable to the wrong premises on which the High Court's reasoning is based."
Similarly, in Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and others reported as 2008(4) CRC (Criminal) 640 in paras 10 and 11, it is held:
"10. After analysing the terminology used in the three pairs Crl. R. No.2597 of 2010 -7- of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case is to be applied."
11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
At the stage of framing of charge, there is no necessity of formulating the opinion about prospect of conviction. The said distinction has been clearly laid down by Hon'ble Supreme Court in the case of Lal Suraj alias Suraj Singh and another v. State of Jharkhand reported as (2209)2 SCC 696.
Surprisingly, summoning order has not been challenged by the petitioners and only order framing the charge sheet has been challenged through the present revision petition.
With respect to the last argument of the petitioner that the two of the petitioners were of tender age and the said fact has not been taken into consideration and the charges could not have been framed against the juvenile and the matter should have been remitted to the concerned Board Crl. R. No.2597 of 2010 -8- cannot be made a ground for setting aside the charge sheet as the prosecution are always at liberty to move an appropriate application as per the provision of Juvenile Justice Board praying for separate trial.
Accordingly, the present petition is dismissed being devoid of merit and no infirmity can be found with the order framing charge.
23.9.2010 ( NIRMALJIT KAUR ) rajeev JUDGE