Crl. Misc. No.M-22151 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-22151 of 2009 Date of Decision: 04.08.2010 Ram Pal ....Petitioner Versus State of Haryana ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. K.D.S. Hooda, Advocate for the petitioner. Mr. Pardeep Punia, Addl. A.G., Haryana for the respondent-State. ***** 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. This is a petition under Section 482 Cr.P.C for quashing of the Order framing charge and the Charge Sheet dated 12.07.2007 passed by the Judicial Magistrate Ist Class, Bahadurgarh and Order dated 15.07.2009 passed by the Additional Sessions Judge, Jhajjar, affirming the charge. The facts, in short, are that the complainant in the present case is Mahant of the Dham and takes care of the temple. When he was sitting in the hall of the temple, 40-50 ladies and gents entered along with Vijay son of Krishan. While entering in the hall, Vijay pointed out that he was Mahant Brahm Swaroop, who has kept Krishan Dass Mahant with him. All the 45 ladies and gents, who were accompanying the said Vijay, started hitting the complainant with their respective weapons and also injured his eye. It is further alleged that Pardeep son of Ranbir, Dillu Dass Maharaj, Saroj wife of Ranbir, Mukesh son of Tara Chand, Basant son of Crl. Misc. No.M-22151 of 2009 2 Prem Singh wife of Relu, Vijay and Bijender started causing injuries to some of the others who had come forward to rescue him. Thereafter, they left the hall by abusing and threats to kill and also locked the hall from outside while going in Indica Car No.HR-12-G-0303 and Canter of closed body bearing No.HR-46-B-7663. The motive behind, as stated in the complaint, was as under :- “ One Krishan Dass Mahant who was working with Rampal of Karontha (Satlok Dham) had come to us and I had appointed him Mahant of Akoolpura (Kalalti) in District Ambala. Because of this grudge Krishan Dass Mahant had written a book against Rampal Dass of Karontha and got it published. Earlier Rampal Dass had got a book published against Krishan Dass and on the asking of Ram Pal Dass Mahant of Satlok Ashram, Krishan and others have manhandled us. Because Ram Pal Dass had given telephonic calls to me not to keep Krishan Dass Mahant with me.” On the basis of the said complaint, the present FIR was registered. Some of the accused persons were arrested in this case. Disclosure statements of the accused were also recorded. The Indica car and the Canter were also recovered along with R.Cs etc. Challan was presented against the accused and they were, accordingly, charge sheeted vide Order dated 12.07.2007 passed by the then Judicial Magistrate Ist Class, Bahadurgarh. Aggrieved with the said Order, the petitioner had filed the revision petition against the said charges, which was dismissed by the Additional Sessions Judge, Jhajjar vide Order dated 15.07.2009. While challenging the Order framing charge and the Charge Sheet dated 12.07.2007 passed by the Judicial Magistrate Ist Class, Bahadurgarh and Order dated 15.07.2009 passed by the Additional Sessions Judge, Jhajjar, affirming the charge, learned counsel for the Crl. Misc. No.M-22151 of 2009 3 petitioner raised the following arguments :- (a) that the petitioner was not even present in Haryana on the date of the alleged occurrence as he had gone to Pune to address the satsang. The Indica car stated to have been used in the incident was with him. He had receipts to show that the diesel was purchased from the filling station at Pune. The Investigating Officer did not take into consideration the evidence produced while submitting the final report under Section 173 Cr.P.C. (b) that the alleged disclosure statements recorded by the police of the co-accused while in police custody is hit by Section 27 of the Evidence Act and has no legal value in the eyes of law. Accordingly, the petitioner cannot be connected on the basis of these alleged disclosure statements to formulate charge under Section 120-B IPC. (c) It is contended that no charge can be framed on the basis of the likelihood of the prosecution to lead better evidence at a subsequent stage. Reliance has been placed on the judgment of this Court rendered in the case of M.L. Wadhwa vs. M.M. Rehani and another reported as 2006(1) RCR (Criminal) 17. (d) that any statement made by an accused must disclose the source of his knowledge, otherwise the same is hit by Section 60 of the Evidence Act. Reliance has been placed on the judgment of Andhra Pradesh High Court titled as Vajja Seshu Reddy and Crl. Misc. No.M-22151 of 2009 4 others reported as 1963(2) Crl. L.J. 70. (e) that if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion, he will discharge the accused. Reliance has been placed on the judgment of Hon'ble the Apex Court rendered in the case titled as Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra reported as 2008(2) R.C.R. (Criminal) 896. Learned counsel for the respondent-State, on the other hand, vehemently submitted that there was enough evidence on record for proceeding against the petitioner. The complainant-Swami Brahm Saroop had specifically named the petitioner. The weapon used was recovered from the possession of the co-accused. It is further submitted that it is not a case of the prosecution or the complainant that the petitioner was present at the spot. Thus, the question of leading evidence to prove his presence is not required. The offence as charged by the trial Court against the petitioner is under Section 120-B IPC read with Section 149 IPC. Learned counsel for the parties have been heard at length. The first argument of learned counsel for the petitioner that the petitioner was not present at the spot and the Investigating Agency did not take into consideration the evidence produced by him that he was not at the spot, is not relevant in the facts of the present case. It is admitted by the petitioner himself in para 17 of the Grounds of Revision that “in the entire prosecution story, it is not at all the case of the prosecution, as well as, the complainant that the petitioner-Ram pal was a member of the alleged unlawful assembly which visited the place of occurrence and caused injuries to the complainant side”. Thus, the charge against the present petitioner is under Section 120-B IPC read with Section 149 IPC. Crl. Misc. No.M-22151 of 2009 5 For the purpose of Section 120-B IPC, the petitioner is not required to be present at the spot of occurrence. Thus, the judgment of learned Single Bench of this Court in the case of M.L. Wadhwa (supra) to state that no charge can be framed on the basis of likelihood of the prosecution to lead better evidence at a subsequent stage, cannot help the petitioner as the presence of the accused at the place of occurrence in any case is not required to be established for an offence under Section 120-B IPC. Taking up the argument with respect to the alleged disclosure statements recorded by the police of the co-accused while in police custody being hit by Section 27 of the Evidence Act, cannot be sustained in the facts of the present case. It is to be remembered that there is no direct evidence for an offence under Section 120-B IPC. Section 120-B IPC reads as under :- “120-B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” The disclosure statement is to be seen along with other circumstantial evidence. In the present case, the co-accused, namely, Krishan, Manoj, Sunil and Vinay suffered their disclosure statement to the effect that they were directed by the petitioner Sant Rampal to commit this crime and he also provided the vehicles i.e. one Canter covered body HR-46-13-7663 and one Scorpio, as well as, one Indica Car bearing Crl. Misc. No.M-22151 of 2009 6 No.HR-12G-0303 and MH-15AJ-7163 which were later on recovered by the Investigating Agency. Thus, there was a sufficient evidence to proceed under Section 120-B IPC against the petitioner. Even otherwise, as per the judgment of Hon'ble the Apex Court rendered in the case of Yogesh @ Sachin Jagdish Joshi (supra) and relied on by the learned counsel for the petitioner himself, a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by prosecution. Whether such inference is possible, depends on facts of each case and therefore the prosecution cannot be cut short where the allegations are under Section 120-B IPC. Taking up the argument of learned counsel for the petitioner that the accused must disclose the source of his knowledge, otherwise, the same is hit by Section 60 of the Evidence Act, may be legally correct but, however, the said shortcoming is not present in the facts of the present case. The complainant- Swami Brahm Saroop, while making statement before the police disclosed his knowledge by specifically naming the present petitioner as the person who telephonically called him not to keep Krishan Dass Mahant with him. Thus, the present petitioner has been named by the complainant on personal knowledge and on account of the telephonic calls made directly by the petitioner to the complainant. Accordingly, the judgment of Andhra Pradesh High Court as relied on by the learned counsel for the petitioner in the case titled as Vajja Seshu Reddy and others (supra) will not apply in the facts of the present case. Learned counsel for the petitioner has finally raised his last argument that if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion, he will discharge the accused. Reliance has been placed on the judgment of Crl. Misc. No.M-22151 of 2009 7 Hon'ble the Apex Court rendered in the case titled as Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra reported as 2008(2) R.C.R. (Criminal) 896, whereas, in the facts of the present case, there is neither any doubt, nor confusion expressed qua a prima facie case against the petitioner. He is named in the FIR. Specific motive is attributed to him which for the sake of repetition reads, “One Krishan Dass Mahant who was working with Rampal of Karontha (Satlok Dham) had come to us and I had appointed him Mahant of Akoolpura (Kalalti) in District Ambala. Because of this grudge Krishan Dass Mahant had written a book against Rampal Dass of Karontha and got it published. Earlier Rampal Dass had got a book published against Krishan Dass and on the asking of Ram Pal Dass Mahant of Satlok Ashram, Krishan and others have manhandled us. Because Ram Pal Dass had given telephonic calls to me not to keep Krishan Dass Mahant with me.” In the case of Mohammad Usman Mohammad Hussain Maniyar & Ors. v. State of Maharashtra reported as 1981(2) SCC 443, it was observed that for an offence under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication. Moreover, Hon'ble the Apex Court in the case of State of Maharashtra vs. Som Nath Thapa etc. reported as 1996(2) R.C.R. (Criminal) 480, has very clearly held that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage and held in para 33 as under :- “ 33. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of Crl. Misc. No.M-22151 of 2009 8 charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” Similar view was also held by the Supreme Court, in the case of State of Orissa and another vs. Saroj Kumar Sahoo reported as 2006 (1) R.C.R.(Criminal) 324, while laying down the guidelines at the time of framing of charge, held in para 15 as under :- “15. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and others, (1992(3) SCC 317), it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and proved.” Crl. Misc. No.M-22151 of 2009 9 In fact, the petitioner had earlier moved an application under Section 482 Cr.P.C. The same was dismissed as withdrawn with liberty to place the materials on record and the arguments hereinbefore the trial Court at the time of framing of charge. The Court had already declined to interfere under Section 482 of the Cr.P.C. Thereafter, the charges were framed against the petitioner. Revision has also been dismissed. The second revision is barred. The petitioner has filed the present petition under Section 482 of the Cr.P.C. Although, there is no bar for entertaining the present petition under Section 482 Cr.P.C., however, the second revision under the garb of Section 482 Cr.P.C can be entertained only to prevent injustice or an abuse of the process of law, whereas, in the present case, the charges against the petitioner are under Section 120-B IPC, the motive and the enmity has been duly mentioned in the complaint. Thus, the inherent power cannot be exercised in the facts of the present case to stifle a legitimate prosecution. Thus, with a factual position of the case in hand and as considered in the light of principles of law highlighted, the inevitable conclusion is that the charge sheet in the present case cannot be quashed qua the present petitioner. Dismissed accordingly. (NIRMALJIT KAUR) 04.08.2010 JUDGE gurpreet