Punjab-Haryana High Court
Savinder Singh And Others vs State Of Punjab And Another on 2 September, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Crl.Revision No. 1582 of 2012 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Revision No. 1582 of 2012
Date of Decision: September 02, 2013
Savinder Singh and others
---Petitioners
versus
State of Punjab and another
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr. K.B. Raheja, Advocate
for the petitioners
Mr. Neeraj Sharma, Asstt. Advocate General, Punjab
for respondent-State.
Mr. G.S.Mann, Advocate,
for respondent No.2
***
REKHA MITTAL, J.
By way of present petition, the petitioners assail order dated 30.4.2012 (Annexure P-1) passed by the Additional Sessions Judge, Ferozepur whereby the petitioners have been charged for commission of offence under Sections 307, 341, 325, 326, 324, 323, 148, 149 of the Indian Penal Code, 1860 (for short "the IPC").
Counsel for the petitioners submits that FIR No.31 dated 17.2.2007 under Sections 307, 341, 325, 326, 324, 323, 148, 149 IPC was registered at Police Station Guruharsahai on the statement of Mukh Ram. During investigation, Savinder Singh petitioner No. 1 was found innocent and challan was presented against the remaining petitioners. Petitioner No. Saini Paramjit Kaur 2013.09.16 14:46 I attest to the accuracy and integrity of this document Chandigarh Crl.Revision No. 1582 of 2012 -2- 1 was summoned as additional accused under Section 319 of the Code of Criminal Procedure (for short "the Code") vide order dated 20.9.2011 and was released on bail. On appearance of petitioner No. 1, the accused were charge sheeted under sections 341, 326, 324, 323, 148 read with Section 149 IPC vide order dated 29.8.2007 passed by the Additional Chief Judicial Magistrate, Ferozepur. Mukh Ram, complainant on the same set of facts filed complaint under Sections 307, 341, 325, 326, 324, 323, 148, 149 IPC. The petitioners were summoned under Section 307 IPC by the Court of Additional Chief Judicial Magistrate vide order dated 23.8.2011. The case was committed to the Court of Sessions and vide impugned order dated 30.4.2012, charge has been framed by the Court of Additional Sessions Judge for offence under Sections 307, 341, 325, 326, 324, 323, 148, 149 IPC.
Counsel for the petitioners argues that criminal complaint was filed by Mukh Ram in April 2007 and it was referred in the complaint that FIR No. 31 dated 17.2.2007 has been registered in regard to the occurrence. The Court of Judicial Magistrate failed to follow the procedure laid down under Section 210 of the Code which envisages that when in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate during the course of enquiry or trial held by him that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It is further argued that after submission of report by the investigating officer under Section 173 of the Code, the Magistrate was Saini Paramjit Kaur 2013.09.16 14:46 I attest to the accuracy and integrity of this document Chandigarh Crl.Revision No. 1582 of 2012 -3- obliged to club the complaint with the police report and thereafter proceed with the matter in accordance with law. It is argued with vehemence that the Magistrate in place of following the mandatory procedure laid down in Section 210 of the Code, illegally and arbitrarily proceeded with the complaint case and passed the summoning order on 23.8.2011. It is argued that even if petitioner No. 1 was not challaned by the police, the Magistrate was not competent to proceed with the complaint as the Magistrate could summon him under Section 319 of the Code, in accordance with law. In support, counsel has relied upon Jile Singh vs. State of U.P. and another, 2012(1) R.C.R.(Criminal) 583, Kishori Singh and others vs. State of Bihar and another, (2004) 13 Supreme Court Cases 11.
Another argument raised by counsel is that in view of allegations against the petitioners and materials relied upon by the prosecution, no prima facie case otherwise is made out for framing of charge under Section 307 IPC.
Counsel for the private respondent/complainant, on the contrary, while refuting the contentions of counsel for the petitioners, contends that there is no illegality committed in entertaining a private complaint and issuance of summons to the accused merely on the premise that an FIR stands registered and the police investigation is in progress. He submitted that in R.K.Khanna vs. State and others 2003(11) SCC 758, the Hon'ble Supreme Court of India set aside order passed by the High Court quashing the complaint case merely because the Magistrate had not exercised his power by staying the complaint case under Section 210(1) of the Code. He has also relied upon Ram Rattan vs. State of Haryana and others 2003(4) R.C.R.(Criminal) 869 and Pawan Kumar vs. State of Saini Paramjit Kaur 2013.09.16 14:46 I attest to the accuracy and integrity of this document Chandigarh Crl.Revision No. 1582 of 2012 -4- Haryana 1999(1) RCR (Criminal) 178.
I have heard counsel for the parties and gone through the case file.
Section 210 of the Code lays down procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Indisputably, the Magistrate did not stay the inquiry proceedings as an investigation by the police was in progress in relation to the offence, subject matter of enquiry. The Hon'ble Supreme Court of India in R.K.Khanna's case (supra) has set aside order passed by the High Court quashing a complaint on the ground that the Magistrate did not exercise his powers by staying the complaint case under Section 210(1) of the Code. The relevant extract from the judgment in paras 4 and 5 is quoted hereinbelow:-
"4. The High Court in the impugned judgment being of the opinion that the Magistrate not having exercised his powers under sub-section (1) of Section 210 Cr.P.C. and not staying the complaint proceeding, has committed serious error and, therefore, the complaint proceedings should be quashed.
5. Having examined the provisions of Section 210 Cr.P.C., more particularly sub -section (3) of Section 210, we have no hesitation to come to the conclusion that the High Court committed serious error in exercising its power under Section 482 Cr.P.C. in quashing the complaint case merely because the Magistrate had not exercised his powers by staying the complaint case under sub-section (1) of Section 210 Cr.P.C. and, therefore, the impugned order cannot be sustained. We Saini Paramjit Kaur 2013.09.16 14:46 I attest to the accuracy and integrity of this document Chandigarh Crl.Revision No. 1582 of 2012 -5- accordingly set aside the impugned order of the High Court and direct that the complaint case be proceeded with."
In the instant case, it is an admitted fact that the summoning order was passed on 23.8.2011 by the time the investigation by the police was completed and charge sheet has been filed in the Court and petitioner No. 1 in the charge sheet was kept in column No. 2 having been declared innocent. As the petitioners were summoned in a private complaint for offcence more serious than the offence for which the petitioners were charge sheeted after completion of police investigation, the Court of Magistrate was only required to follow procedure laid down in Section 210 (2) of the Code which says as follows:-
" If a report is made by the investigating police officer under Section 173 of the Code and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report."
As in the present case, one of the offences for which the petitioners had been summoned being under Section 307 IPC exclusively triable by the Court of Sessions, the Magistrate had no option except to commit both the cases to the Court of Sessions for trial of the accused after clubbing both the cases. The mere fact that the Magistrate either ignorantly or otherwise framed charge against the petitioners in the case based on police report, does not create any bar that the cases could not be committed to the Court of Sessions. Had the Magistrate failed to commit the cases to Saini Paramjit Kaur 2013.09.16 14:46 I attest to the accuracy and integrity of this document Chandigarh Crl.Revision No. 1582 of 2012 -6- the Court of Sessions, despite summoning the petitioners under Section 307 IPC, it would rather be a clear violation of the provisions of Section 209 of the Code.
The judgment in Jile Singh's case (supra) has got no bearing on the facts of the case in hand. In the said case, the charge sheet was submitted by the police after investigation and the Magistrate committed the case to the Court of Sessions. The father of the deceased filed a private complaint before the Chief Judicial Magistrate for summoning another person as he was figured in the investigation but the police did not file charge sheet against him. The Magistrate after recording evidence summoned the said person. The Hon'ble Supreme Court held that it was not open to the Chief Judicial Magistrate to exercise power under Section 204(1)(b) of the Code and issue summons to the accused on the ground that once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. In the present case, the challan submitted by the police after investigation did not lead to any committal proceedings debarring the Magistrate to summon the accused for an additional offence or additional persons as accused. This apart, the judgment in Jile Singh's case (supra) may require reconsideration in view of latest judgment of the Hon'ble Supreme Court of India in Dharampal and others vs. State of Haryana and another 2013 (Crl. Appeal No. 148 of 2003) decided on 18.7.2013 as in Dharampal and other's case (supra) judgment of the Hon'ble Supreme Court of India in Ranjit Singh vs. State of Punjab, (1998)7 SCC 149 has Saini Paramjit Kaur 2013.09.16 14:46 I attest to the accuracy and integrity of this document Chandigarh Crl.Revision No. 1582 of 2012 -7- been virtually over ruled. Another judgment relied upon by counsel for the petitioner in Kishori Singh and others' case (supra) is also based upon what has been held in Ranjit Singh's case (supra). In this view of the matter, the petitioners cannot take any advantage to their contention from the judgments cited by learned counsel.
Counsel for the petitioners has made a feeble attempt to contend that in view of allegations and material relied upon, no prima facie case under Section 307 IPC is made out against the petitioners. The petitioners have also been charge sheeted for causing grievous injuries with a sharp edge weapon, grievous injuries with a blunt weapon and simple injuries with both sharp and blunt weapons. The injuries sustained by the victim(s) is an evidence of the intention of the accused. The intention of the accused is to be gathered from the facts and circumstances of the case. A charge can be framed by the Court even on the basis of suspicion. Keeping in view the facts of the present case, I do not find any error much less illegality in the order passed by the Additional Sessions Judge framing charge under Section 307 IPC. The petitioners cannot be heard to say that as the investigating agency has not filed charge sheet for the said offence or the petitioners either could not be summoned in the complaint case for the said offence, they could not be charged for the said offence.
In view of what has been discussed hereinabove, finding no merit, the petition is dismissed.
(REKHA MITTAL) JUDGE September 02, 2013 PARAMJIT Saini Paramjit Kaur 2013.09.16 14:46 I attest to the accuracy and integrity of this document Chandigarh