Punjab-Haryana High Court
Sanjeev Kumar Alias Happy vs State Of Punjab And Anr on 8 March, 2021
Author: Arvind Singh Sangwan
Bench: Arvind Singh Sangwan
CRR No.660 of 2020 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.660 of 2020 (O&M)
Decided on: 08.03.2021
Sanjeev Kumar @ Happy
....Petitioner
Versus
State of Punjab and another
....Respondents
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present:- Ms. G.K. Mann, Advocate for the petitioner.
Mr. Joginder Pal Ratra, DAG, Punjab.
Mr. C.M. Munjal, Advocate for respondent No.2.
Mr. Mansur Ali, Advocate
with Mr. Imran Ali, Advocate for respondent No.3.
ARVIND SINGH SANGWAN J. (Oral)
Prayer in this revision petition is for setting-aside the order dated 10.10.2019 passed by the Additional Sessions Judge, Amritsar, vide which the petitioner has been summoned under Section 319 of the Code of Criminal Procedure (in short 'Cr.P.C.'), to face the trial.
Brief facts of the case are that on 24.08.2018, the informant - Vijay Kumar Malhotra, made a complaint to the police that a dinner was arranged for 5-6 families for celebrating the party of his daughter-in-law and some dispute arose with his nephew Honey Malhotra with Rishal Saini, his father Rajdeep Saini. Due to the said incident, his nephew came back to the house and after some time, Sanjeev Kumar @ Lovely armed with iron rod, Sanjeev Kumar Happy armed with Bodkin (Sua), Rishal Saini armed with baseball bat, Rajdeep Saini, armed with Bodkin (Sua), Kiran Kumar armed with 1 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 2 dang, Pargat Singh armed with Kirach, Krishna Arora armed with baseball bat, Honey Singh armed with Bodkin (Sua), Rajinder Singh @ Rinku Dhot armed with Bodkin (Sua), Rakesh Kumar @ Rimpa armed with baseball bat, came in front of the house and they were accompanied by 7-8 unidentified persons and they started abusing them. At that time, his relative Amarjeet Singh, Kulwinder Singh @ Kinda, Prabhjot Singh, Randhir Singh Malhotra, the councilors of the area or their relatives came. Sanjeev Kumar @ Lovely raised a voice that they should be taught a lesson and gave an iron punch blow on the right side of the face of Kulwinder Singh @ Kinda, who fell down on the motorcycle standing near to him, then Sanjeev Kumar @ Happy gave Bodkin (Sua) blow on the head of Kulwinder Singh. Then Pargat Singh gave kirch blow on the back side of the head of Kulwinder Singh. Thereafter, Krishna Arora caught the arms of Kulwinder Singh @ Kinda and Honey Singh gave Bodkin (Sua) blow on the back side of Kulwinder Singh @ Kinda. Then, Kiran Kumar started beating Kulwinder Singh with his baseball bat and then Rajinder Singh @ Dhot gave Bodkin (Sua) blow on the back side of Kulwinder Singh. Thereafter, Rakesh Kumar @ Rimpa gave baseball bat blow on the shoulders of Kulwinder Singh. When the complainant tried to stop the fighting, the accused persons started beating them and they raised an alarm and thereafter, all the accused persons ran away from the spot. Thereafter, a vehicle was arranged and the victim Kulwinder Singh @ Kinda was admitted to Civil Hospital, where doctor declared him dead.
Counsel for the petitioner has submitted that during the investigation, Rishal Saini, Rajdeep Saini, Kiran Kumar, Sanjeev 2 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 3 Kumar @ Lovely, Rajinder Singh @ Dhot, Krishna Arora, Rakesh Kumar @ Rimpa, were found innocent whereas the other accused persons including the petitioner were found involved in commission of the crime. 02 accused persons namely Pargat Singh @ Pagga, Harjit Singh @ Honey, were arrested and report under Section 173 Cr.P.C. was submitted. Sanjeev Kumar @ Happy and Binku Dhobi, could not be arrested and they were declared proclaimed offender.
It is worth noticing that the petitioner had filed an application for anticipatory bail before the trial Court, which was dismissed and thereafter, he filed CRM-M No.35147 of 2019, which was dismissed by this Court on 28.08.2019. The operative part of the order dismissing his anticipatory bail, reads as under:-
"FIR in the present case came into being on the statement of Vijay Kumar Malhotra; in which it was stated that on 24.08.2018 at about 9:30 PM there was a function at his house on the occasion of birthday of his daughter- in-law. When most of the guests were yet to reach, his nephew Honey Malhotra was away from house and he had an altercation with Rishal Saini. Due to programme at house, the nephew of the complainant came back to home. However, after 10-15 minutes, one Sanjeev Kumar @ Lovely, the present petitioner Sanjeev Kumar @ Happy and other named persons, armed with their respective weapons reached the house of the complainant. All these persons started abusing the complainant. In the mean- time, one of the guest Amarjit Singh and another guest Kulwinder Singh @ Kinda reached for the function in their Breeza Car. On seeing all these persons, the accused persons, including the present petitioner attacked the nephew of the complainant, as well as the guests. In the
3 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 4 process, the injuries were caused to the above-said Kulwinder Singh @ Kinda; by all the accused. Against the present petitioner, it is alleged in the FIR that when Kulwinder Singh @ Kinda fell down on account of injury which had been caused by the co-accused then Sanjeev Kumar @ Happy; the present petitioner; caused a blow with ice-pick on the head of the said Kulwinder Singh @ Kinda. Thereafter, another accused also caused injuries to said Kulwinder Singh @ Kinda and other persons. The injured were taken to the hospital. However, Kulwinder Singh @ Kinda succumbed to the injuries. With these allegations, the FIR under Section 302 IPC came into being against the petitioner and his co-accused.
While arguing the case on behalf of the petitioner, learned counsel for the petitioner has submitted that the matter was inquired into through a specially constituted Special Investigation Team(for short, 'SIT'). The SIT has found seven persons out of 10 to be innocent, though named by the complainant. Therefore, the version of the complainant is not reliable as such. Hence, the allegations levelled by the complainant against the petitioner can not be believed. It is further submitted that the medical report has found only two injuries on the body of the deceased and two accused have already been arrested in the case. Therefore, there is no scope of involvement of third person in the case. It is further submitted by the counsel for the petitioner that the SIT had recorded the statement of wife, son and brother of the deceased. However, in their statement before SIT the son and the brother of the deceased have not fully supported the case of the complainant.
Having heard the learned counsel for the petitioner and after perusing the case file, this Court does not find any substance in the arguments of learned counsel for the 4 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 5 petitioner.
Of course, the accused, as an individual, has a right to life and liberty, however, that right to life and liberty can be curtailed according to the procedure prescribed by the law. In case of criminal investigation, the ordinary prescribed procedure is that the Investigating Officer can arrest the accused even without warrant. But; to ensure that innocent person is not unduly harassed by the Police Officers by misusing their authority, special and extraordinary power has been conferred upon the courts to protect the individual from unnecessary harassment. However; this power is so extraordinary that this is not even available in some parts of the country; and qua some offences under special statutes; it is not available throughout the country. Therefore, being a special power, the power under Section 438 Cr.P.C has to be exercised only in cases, where there are circumstances leading, predominantly, towards the ex-facie innocence of the accused, coupled with the fact that if the accused is protected from the arrest, then the investigation of the case shall not be unduly hampered.
In the present case, undisputedly the petitioner is specifically named in the FIR. He is alleged to be armed with specific weapon of offence. Specific injury is attributed to him. Therefore, the facts of the case do not make out any mitigating circumstances, showing any ex- facie innocence of the petitioner, vis-a-vis the allegations levelled against him. Therefore, this Court does not find this case to be the one where Court should exercise it's extraordinary powers to protect the petitioner against his arrest.
Although the counsel for the petitioner has submitted that SIT has found seven named accused to be innocent out of 10 mentioned by the complainant, however, 5 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 6 that itself can not be ground to presume that the petitioner was not involved in the case. Still further, although the counsel for the petitioner has submitted that only two injuries have been found on the body of the deceased as per the MLR and two persons have already been arrested, however, even this can not be a ground for absolving the petitioner as such, particularly, when he is; specifically, named by the complainant and specific blow is attributed to the petitioner as having been given to the deceased. Still further although the counsel for the petitioner has submitted that the son and the brother of the deceased has not fully supported the case of the complainant, however, admittedly, even these two witnesses have not stated before the police that the petitioner was not the person who was not present there. Therefore, even these witnesses, relied upon by the petitioner; have not ruled out the presence of the petitioner at the place of occurrence and his participation in the crime. Otherwise also, it is too premature to draw any conclusion qua the petitioner, when the petitioner is yet to join the investigation.
Since the offence involved in this case is very serious and there are specific allegations and the petitioner has not even been exonerated by the Investigating agency, therefore, in the considered opinion of this Court, if the petitioner is protected against his arrest at this stage, then the same shall; definitely; hamper the free and fair investigation on the part of the investigating agency.
In view of the above, this Court finds no merits in the petition and the same is dismissed."
The petitioner, thereafter, preferred an SLP (Crl.) No.45361 of 2019, which was dismissed by the Hon'ble Supreme Court on 13.01.2020. The operative part of the said order, is reproduced as 6 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 7 under:-
"Heard learned counsel for the petitioner. Delay condoned.
The special leave petition is dismissed. As a sequel to the above, pending interlocutory application also stands disposed of."
Thereafter, the charges were framed against the aforesaid 02 persons and the informant Vijay Kumar Malhotra, through Public Prosecutor, on the basis of his statement/evidence recorded as PW-1, moved an application under Section 319 Cr.P.C. for summoning 08 accused persons including 07 persons, who were found to be innocent by the SIT as well as the petitioner, who was already declared a proclaimed offender on 17.07.2019 and his anticipatory bail was dismissed upto the Hon'ble Supreme Court.
In the application, the status of the petitioner was not specifically defined.
The trial Court, vide impugned order dated 10.10.2019, though noticed this fact in para 3 that the petitioner (Sanjeev Kumar @ Happy) along with another accused namely Binku Dhobi, could not be arrested and P.O. proceedings were pending against them, however, without distinguishing their case they were summoned along with other accused persons.
Counsel for the petitioner has argued that in pursuance to the notice of motion order, the petitioner has already put in appearance before the trial Court on 02.03.2020 and has furnished bail/surety bonds.
A perusal of the notice of motion order show that the only 7 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 8 argument raised by counsel for the petitioner that since he has been summoned under Section 319 Cr.P.C., after the case was committed to the Court of Sessions, his custodial interrogation was not required.
It would be relevant to mention that in the meantime, CRM No.19974 of 2020, was filed on behalf of Prabhjot Singh son of the deceased Kulwinder Singh for impleading him as an aggrieved person/victim as the present petition was filed by arraying only Vijay Kumar Malhotra (informant of the FIR), who appeared as PW-1.
Along with the application for impleading, another application i.e. CRM No.20588 of 2020, was also filed for vacation of stay of interim order dated 02.03.2020.
The first application i.e. CRM No.19974 of 2020, was allowed and Prabhjot Singh was impleaded as respondent No.3 whereas the second application i.e. CRM No.20588 of 2020, was ordered to be listed with the main case.
Counsel for the petitioner has further submitted that since the petitioner has already been released on interim bail while issuing notice of motion, he is facing the trial and therefore, the order dated 02.03.2020, be made absolute as the petitioner do not want to challenge the order under Section 319 Cr.P.C., on merits.
Counsel for the State assisted by counsel for respondent No.3 has, however, opposed the prayer on the ground that in fact, in the application filed under Section 319 Cr.P.C. by respondent No.2/informant - Vijay Kumar Malhotra (PW-1), it is not stated that at that time, the proceedings to declare the petitioner as proclaimed offender were pending as well as in investigation, he was found to be 8 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 9 involved in commission of the offence as he has caused fatal injuries on the head of the deceased - Kulwinder Singh @ Kinda with Bodkin (Sua).
Counsel for the respondent No.3, has further argued that once the anticipatory bail application of the petitioner was dismissed by this Court on 28.08.2019, as well as by the Hon'ble Supreme Court on 13.01.2020, the petitioner was well aware of the fact that P.O. proceedings are pending against him and therefore, while the notice of motion order was issued, this fact was not brought to the notice of this Court.
Counsel for the complainant has further argued that though the other accused persons, who were found innocent by the SIT and were summoned under Section 319 Cr.P.C., have also been granted similar relief of appearance before the trial Court, however, their case is entirely different from that of the petitioner as the petitioner was not declared innocent by the SIT and rather he being a main accused was declared a proclaimed offender and therefore, the collusion between the petitioner and respondent No.2 (informant - Vijay Kumar Malhotra) is apparent on record firstly in concealing this fact in application under Section 319 Cr.P.C. and secondly, in misleading the factual position before this Court at the time of issuance of notice of motion order.
In reply, counsel for the petitioner has argued that the petitioner has attached all the order including the order vide which the other accused, who were found innocent and were summoned under Section 319 Cr.P.C., were granted the concession of interim relief and the order dismissing the anticipatory bail application of the petitioner 9 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 10 by this Court as well as by the Hon'ble Supreme Court.
After hearing the counsel for the parties, I find that it is a clear case of misrepresentation on the part of the petitioner in procuring the notice of motion order as well as the order granting interim bail though his anticipatory bail application was already dismissed, for the following reasons:- (i) during the investigation, he was found to be a prime accused (ii) he could not be arrested and was declared proclaimed offender (iii) his anticipatory bail application was dismissed by this Court as well as by the Hon'ble Supreme Court (iv) this fact was concealed in the application filed under Section 319 Cr.P.C. by Public Prosecutor through informant (PW1) - respondent No.2 and therefore, no such interim relief could be granted to the petitioner.
Though, it is well settled principle of law that an application under Section 319 Cr.P.C. is maintainable against the accused, who is not found innocent or kept in Column No.2 by the police or who is not facing the trial. However, the aforesaid facts were concealed from the notice of this Court that the petitioner is the prime accused and by byepassing the procedure of anticipatory bail, which has already been dismissed upto the Hon'ble Supreme Court, the petitioner has manipulated in obtaining the interim bail.
Since the petitioner is one of the main accused, no illegality or fault is found in the impugned order.
Accordingly, finding no merit, this petition is dismissed with Rs.1.00 lac costs, to be paid by the petitioner to the victim/respondent No.3 within a period of 01 month from today.
The petitioner is directed to surrender before the trial 10 of 11 ::: Downloaded on - 24-08-2021 22:13:06 ::: CRR No.660 of 2020 (O&M) 11 Court and apply for regular bail and the trial Court will dispose of the regular bail application of the petitioner within a period of 10 days thereafter.
(ARVIND SINGH SANGWAN)
JUDGE
08.03.2021
yakub Whether speaking/reasoned Yes/No
Whether reportable: Yes/No
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