Punjab-Haryana High Court
C.B.I (Now Union Territory vs Hardev Singh And Others on 5 December, 2008
Author: K. C. Puri
Bench: K. C. Puri
Criminal Misc. No.M-24549 of 2008.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Misc.No.M-24549 of 2008.
Date of decision:5.12.2008.
C.B.I (Now Union Territory, Chandigarh)
...Petitioner.
Versus
Hardev Singh and others.
...Respondents.
...
Coram; Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr.Sukant Gupta, Additional Public Prosecutor, UT,
Chandigarh for the petitioner.
Mr. S.P.S.Bhullar Advocate for respondent Nos.1 and 2.
Mr. R.C.Kapoor, Advocate for respondent No.3.
...
K. C. Puri, J.
Judgment.
Through the instant petition, CBI seeks modification of order dated 14.7.2008, Annexure P-4, passed by Special Judge, CBI Court, Chandigarh declining to summon material witness.
The factual matrix of the case is that on 7.7.1985, one Criminal Misc. No.M-24549 of 2008.
-2-Inderjit Singh son of Allah Singh was found hanging in house No.1895, Sector 34-D, Chandigarh which belonged to Hardev Singh, accused/respondent No.1. Said Inderjit Singh had taken one room on rent from accused/respondent No.1 on 26.1.1985. Hardev Singh accused lodged DDR No.87 of 1985 at Police Station, Sector 34, Chandigarh in connection with the death of Inderjit Singh. Two police officials visited the scene of crime and, after investigation, one of them, namely, ASI Radhey Sham reported it to be a case of suicide. On 8.7.1985, postmortem examination on the dead body of Inderjit Singh was conducted.
Complainant Allah Singh, on the basis of postmortem report, came to know that the apparent cause of death of his son is asphyxia on account of hanging. Allah Singh, father of the deceased, submitted a complaint to the Union Home Minister on 12.7.1985 which resulted into fresh investigation into the death of his son, Inderjit Singh.
Under the orders of Inspector General of Police, Chandigarh, an inquiry was entrusted to Inspector Sita Ram, who, vide his report dated 19.8.1985, reported that a clear case of murder was made out. The said report of Inspector Sita Ram was accepted by the higher authorities and FIR No.482 dated 24.9.1985 was registered at Police Station Sector 34, Chandigarh against Criminal Misc. No.M-24549 of 2008.
-3-Hardev Singh, respondent No.1 and his son Harpreet Singh, respondent No.2. The said accused were taken into custody on 10.1.,1986 and 12.1.1986 respectively and later on enlarged on bail.
Before the investigation could be completed, Inspector Sita Ram was repatriated to his parent State of Punjab and the investigation was then carried out by another police officer, namely, DSP/CBI Suraj Pal who concluded that the death of Inderjit Singh was homicidal.
Complainant Allah Singh filed a petition before the Hon'ble Supreme Court of India seeking directions for investigation of the case by an independent agency. The said petition of the complainant was allowed and the Hon'ble Supreme Court of India on 4.6.1986 ordered the investigation into the death of son of the complainant to be conducted by the Superintendent of Police, Patiala.
During the course of investigation, the new Investigating Officer could not collect sufficient evidence for charging the accused/respondents which prompted complainant Allah Singh to again file a petition before the Hon'ble Supreme Court of India seeking further investigation by the CBI. The Hon'ble Supreme Court of India entrusted the investigation to Criminal Misc. No.M-24549 of 2008.
-4-Inspector/CBI A.K.Sharma. Now, the investigation is with DSP/CBI S.L.Gupta.
On the completion of investigation, CBI, Chandigarh Branch filed a cancellation report in the Court of Chief Judicial Magistrate, Chandigarh, on the pretext that Inderjit Singh deceased had committed suicide. The CBI also charge-sheeted Inspector Sita Ram for having collected evidence against the accused/respondents in connivance with complainant Allah Singh by planting blood and other evidence. The complainant filed a protest petition before the Chief Judicial Magistrate, (in short CJM) Chandigarh in response to the cancellation report submitted by the CBI. On 22.12.1994, the CJM, Chandigarh directed further investigation of the case by a senior officer for eliciting the true facts of the case. The CJM did not agree with the findings recorded by the CBI that Inspector Sita Ram had planted blood on the clothes of deceased Inderjit Singh.
As a consequence of order dated 22.12.1984 of the CJM, Chandigarh, the investigation of the case was handed over to Kirti Chandra Kanungo, SP/CBI who investigated the entire matter virtually de novo and compiled an exclusive report, inter alia, recommending the prosecution of Hardev Singh, accused/respondent No.1, his son Harpreet Singh, accused/respondent No.2 and Rajinder Kaur wife of Hardev Singh, Criminal Misc. No.M-24549 of 2008.
-5-under Sections 302/218/193 read with Section 34 IPC and the prosecution of Khushwant Singh, son of Hardev Singh, under Sections 302/34 IPC and Dr. S.K.Garg, under Sections 193/218/34 IPC. Shri K.C.Kanungo, SP further reported that Inspector D.S.Mann, DSP.CBI, S.L,.Gupta and SP./CBI R.K.Pachhanda were not only responsible for the deliberate letting of the accused but were also responsible for roping in innocent persons, in the instant case.
It has been further alleged that on the basis of preliminary inquiry, the C.J.M, Chandigarh passed order dated 20.4.2001 summoning the accused/respondents for an offence punishable under Section 302 read with Section 34 IPC. Thereafter, the case was committed to the Court of Sessions vide order dated 18.2.2002.
On 20.2.2002, the Additional Sessions Judge, Chandigarh set aside the commitment order dated 18.2.2002 and remanded the case back to the CJM directing him to comply with the mandatory provisions of Section 202(2) Cr.P.C) and record the statements of the remaining witnesses as per list. In pursuance thereto, both the parties appeared before the CJM and complainant Allah Singh stated that in all 12 witnesses have already been examined and that he did not wish to lead any further evidence in Criminal Misc. No.M-24549 of 2008.
-6-support of his protest petition. As such, the C.J.M closed his evidence and by his order dated 21.4.2003, directed the parties to appear before the Sessions Judge on 6.5.2003.
The Sessions Judge on 11.6.2003 came to the conclusion that the evidence on record and factual background of the case showed that there were sufficient grounds warranting the framing of charges against the accused.
Aggrieved against the order dated 11.6.2003 framing charges, the accused/respondents approached this Court by way of Criminal Revision No.1870 of 2003 which was dismissed on 7.11.2003.
The prosecution filed an application for summoning some witnesses but the same was dismissed by the Additional Sessions Judge on 4.6.2005.
Thereafter, a CBI Court was set up at Chandigarh and the aforesaid case was transferred to the newly constituted CBI Court.
Fresh evidence was recorded in the case and as a consequence of the same, the prosecution filed an application under Section 319 Cr.P.C, seeking the summoning of Rajinder Kaur and Khushwant Singh as additional accused. The trial Court dismissed the said application vide its order dated 2.1.2008.
Criminal Misc. No.M-24549 of 2008.
-7-Against the said order, the UT, Chandigarh as well as Allah Singh, respondent No.3 filed Revision Petitions and this Court allowed the same by its order dated 1.4.2008 and directed the CBI Court to summon Rajinder Kaur and Khushwnt Singh as additional accused. This Court vide its order dated 1.4.2008 further directed the CBI Court to conclude trial within a period of one year.
The trial before CBI Court started de novo. The CBI Court vide its order dated 11.9.2006 allowed the list of witnesses submitted by the complainant/respondent which included, amongst others, Moharrir Head Constable Malkhana ( in short MMHC) and ordered the summoning of the said witnesses. The MMHC was sought to be summoned to prove the entry in the Malkhana Register No.19 as ASI Radhey Shyam had deposited the case property. Again, the CBI Court vide its order dated 5.7.2008, Annexure P-3, summoned MMHC, Police Station Sector 34, Chandigarh as his name appeared at serial No.17 in the original list of witnesses. Surprisingly, vide its order dated 14.7.2008, Annexure P-4, the CBI Court, passed impugned order holding that since MMHC was not in the list of witnesses so he cannot be allowed to be summoned.
The petitioner has challenged the impugned order dated 14.7.2008, Annexure P-4. The finding of the learned trial Court to Criminal Misc. No.M-24549 of 2008.
-8-the effect that after summoning of additional accused, the Public Prosecutor cannot examine the witnesses other than the witnesses examined is against the spirit of law. In authority in case Shashikant Singh Versus Tarkeshwar Singh and another, AIR 2002 Supreme Court 2031, it has been held that an accused summoned under Section 319 Cr.P.C has to be tried with the accused who is already facing trial. It has been further held by the Apex Court that there has to be a de novo trial against him. So, the prosecution is at liberty to examine the witnesses already examined as well as other witnesses, if deemed fit.
In authority in case Mohanlal Shamji Soni v. Union of India and another, AIR 1991 Supreme Court 1346, it has been held that the Court has the power to summon any person as a witness or to recall and re-examine the witness at any stage of the proceedings if the examination of such person is essential for just decision of the case.
In authority in case Hari Ram Versus State of Haryana, 2001(1) RCR (Criminal) 786, this Court has held that the incident was seven years old and the prosecution failed to examine important witness (Doctor) despite 2/3 last opportunities. Doctor had gone abroad. Magistrate closed prosecution evidence and recorded the statement of accused under 313 Cr.P.C. The Criminal Misc. No.M-24549 of 2008.
-9-doctor can be examined if he becomes available later on. So, in these circumstances, the impugned order does not sustain the test of legal scrutiny.
The learned counsel for the petitioner has submitted that the complainant shall examine the witnesses from the list already given, including MMHC. Therefore, the trial Court shall allow the prosecution to examine the witnesses from the list already given. The earlier order of this Court dated 1.4.2008 regarding conclusion of evidence shall be adhered to.
This petition stands accepted in the above terms. The parties are directed to appear before the trial Court on the date already fixed.
A copy of this judgment be sent to the trial Court for strict compliance.
December 5,2008. ( K. C. Puri ) Jaggi Judge