IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 12971-M of 1999 Date of decision: 28th May, 2008 Bhardesh Kumar … Petitioner Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the petitioner. Mr. Sunil Nehra, Assistant Advocate General Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. Bhardesh Kumar son of Bhika Ram, District Jail, Rohtak resident of Purani Mandi, Narnaul, District Mohindergarh, Haryana on 18.12.1998 posted a letter to the Chief Justice of this Court. In the letter, he demanded that an inquiry be got conducted through Judicial Court or CBI under Section 482 Cr.P.C. against shoot out by Assistant Sub Inspector of Police, Suresh Kumar for an attempt to kill him and his bother, Shiv Narain Singh while they were in judicial custody. It was stated in the letter that on 13th October, 1998, Bhardesh Kumar along with his brother, Shiv Narain Singh, Ram Chander and nephew Prem Parkash were produced in the Court of ACJM, Narnaul in case FIR No. 53/93 dated 30th January, 1993 registered at Police Station Narnaul under Section 427/ 447/ 506/ 34 IPC, while they were in judicial custody. It was further stated that when they reached Court complex, CRM No. 12971-M of 1999 Assistant Sub Inspector of Police, Suresh Kumar, who was talking with the opposite party, came there and while hurling abuses, asked the guard to take the detenues to Superintendent of Police. It is further stated that when they were taken to the hall of Bar, Mr.R.C.Mishra, SP Narnaul, after accepting bribe from the opposite party, got opened fire shots at Bhardesh Kumar applicant and his brother without any reason. It was stated that Assistant Sub Inspector of Police, Suresh Kumar had preplanned the conspiracy. It is stated that shots hit the brother of the applicant on his chest and on right thigh. As a result thereof, Shiv Narain Singh, brother of the applicant died at PGIMS, Rohtak on the night intervening 17th and 18th October, 1998. The letter contain various other circumstances. Also a fact that the dying declaration of Shiv Narain Singh was recorded at Government Hospital, Narnaul by Sh.Sandeep Singh, Judicial Magistrate (1st Class) on 13th October, 1998. Other details, facts and circumstances as to how offence is made out, need not be enumerated here at this stage. The then Hon'ble Chief Justice, on 21st December, 1998 appended the following note: “Put up on the administrative side, first, before the Hon'ble Inspecting Judge. Sd/- 21.12.98” My Lord, Hon'ble Mr. Justice G.S.Singhvi, then was Inspecting Judge. He was pleased to pass the following order: “Perused the report of the S.P. A copy of the complaint together with the report of the Superintendent Police be sent to the D.G.P. Haryana with the request to look into the complaint and get an inquiry conducted by an independent officer to find out the truth. The D.G.P. may be requested to communicate the result of such inquiry to this Court. Sd/- 9/2/99” 2 CRM No. 12971-M of 1999 The report was submitted by the Superintendent of Police, Narnaul, wherein it was stated as under: “The petitioner and his family members are in a habit to lodge false complaints leveling allegations against the higher authorities. It is denied that the incident taken place was the result of any conspiracy hatched by the answering respondent or/and the Deputy Commissioner Narnaul. The petitioner was allowed on 19.10.98 to be released on parole by the answering respondent for one day which was accorded by the District Magistrate, Mohindergarh. In view of the above stated facts and the investigation conducted by SI Raj Singh, Inspector/SHO Udai Singh PS Sdr. Narnaul and Dy. Superintendent of Police, Head- Quarter, Shingara Singh, prima facie no case is made out against ASI Suresh Kumar. As per evidence as come forth on file, the accused Shiv Narain, Bhartesh and others are aggressive party in the case and ASI Suresh Kumar has fired shots on the accused in his self defence. The final report U/s 173 Cr.P.C., after completion of investigation, has been prepared and the same has been filed in the Court of Judicial verdict”. On perusal of the report, My Lord, Justice G.S. Singhvi, as His Lordship then was, on 26.04.1999 appended the following note: “Perused the letter dated 19.3.1999 of the Director General of Police, Haryana, which is accompanied by the report submitted by the D.G.P., C.I.D., Hissar and other papers. The report sent by the Superintendent of Police, Narnaul in pursuance of the direction given by the Court on 9.1.1999 has also been perused. On the administrative side, I do not consider it appropriate to express any opinion on the merits of the two reports but one thing is evident that while the Superintendent of Police, Narnaul has, in his report dated 2.2.1999, tried to blame the deceased and his relatives for the incident which led to the death of Shiv Narain, in his report dated 26.2.1999, the Deputy Superintendent of Police, C.I.D., Hissar has 3 CRM No. 12971-M of 1999 expressed the view that the incident has occurred due to the fault of police officials who had brought accused Shiv Narain and others. In my opinion, it was expected of the departmental authorities to register the case against the guilty officials. However, as they have not done so, it is an appropriate case in which the complaint deserves to be registered as a Crl. Misc. petition for issuance of a direction to the concerned authorities to register the case. The file may be placed before Hon'ble the Chief Justice for his Lordship’s order whether or not the complaint made by Bhartesh Kumar be registered as Crl. Misc. Petition. (G.S.Singhvi) Judge, 26.4.1999.” In compliance with the orders passed by My Lord, Justice G.S. Singhvi, the present petition was treated on criminal side and was registered as Criminal Misc. No. 12971-M of 1999. Notice of motion was issued by this Court on 25.05.1999. Thereafter, on 02.06.1999, the case was adjourned to 22.07.1999. Thereafter, somehow the matter could not be listed and came up for hearing before me on May 26, 2008, when it was adjourned to 28th May, 2008. Before I could take Mr.Sunil Nehra, Assistant Advocate General Haryana, appearing for the State, to task as to why the order dated 26th April, 1999 has not been complied with, and, the department has not registered the case, he has placed on record an order passed by a Single Bench of this Court (Justice V.M.Jain) on a petition preferred for the same relief by Smt. Sarbati Devi wife of the deceased Shiv Narain Singh. The relief sought by Smt. Sarbati Devi was similar as petitioner Bhardesh Kumar had sought. Both were aggrieved against the death of Shiv Narain Singh being wife and brother respectively. On judicial side, Smt. Sarbati Devi, wife of deceased had instituted a petition bearing Criminal Misc. No. 4 CRM No. 12971-M of 1999 5660 of 2000 and same was disposed off on July 19, 2000 and the following order was passed: “On receipt of a written complaint from the wife of Shiv Narain, a copy of the complaint was sent to the District and Sessions Judge, Narnaul, to make a detailed inquiry and to submit his report. In pursuance of the said directions, the then District and Sessions Judge, Narnaul, conducted an inquiry and submitted his report dated 2.4.1999. After perusing the said report of the District and Sessions Judge (Enquiry Officer) he was asked to send a copy of the statement of Shiv Narain, deceased, recorded by the Judicial Magistrate on 13.10.1998 in the hospital and was also asked to intimate as to whether any case was registered on the said statement of Shiv Narain. In reply, the District and Sessions Judge, Narnaul, sent a copy of the statement of Shiv Narain, deceased, recorded by the Judicial Magistrate on 13.10.1998 and also intimated that the said statement of Shiv Narain was enquired into by the police and was found to be false and as such no cross case was registered on the basis of the said statement of Shiv Narain, deceased. Thereafter, it was directed that the matter be taken up on the judicial side under Section 482 Cr.P.C. In pursuance of the said direction, the matter was taken up on the judicial side and notice was ordered to be issued to the State. Today, the learned counsel appearing for the State of Haryana has filed the reply of Sh.Manjeet Singh Ahlawat, Superintendent of Police, Narnaul, on behalf of State of Haryana. In the written reply it has been alleged that on the basis of the statement made by Shiv Narain, deceased, before Judicial Magistrate, Ist Class, Rapat No. 41 was recorded in the police station on the same day as cross version and a thorough investigation was carried out in this regard and various persons named in the said statement were interrogated but no substance was found in the allegations in the said statement. It was further alleged that with regard to the main case bearing FIR No. 636 dated 13.10.1998, a final report under Section 173 Cr.P.C. after the completion of investigation was prepared and filed in the 5 CRM No. 12971-M of 1999 Court on 21.1.1999 and that the case was now fixed for prosecution evidence for 28.7.2000. After perusing the allegations made in the complaint and after going through the inquiry report submitted by the District & Sessions Judge, Narnaul, and after going through the reply submitted by Shri Manjeet Singh Ahlawat, Superintendent of Police, Narnaul, and after hearing the counsel for the State, in my opinion, no case is made out for initiating any further proceedings under Section 482 Cr.P.C. Accordingly, the present proceedings are dropped. However, the complainant is relegated to the remedy of filing a criminal complaint, if so advised. Sd/- V.M.Jain July 19, 2000 Judge” The order passed in Criminal Misc. No. 5660 of 2000 is placed on record by the State Counsel. For the same relief, two different orders have been passed. Whereas, My Lord, Justice V.M.Jain has relegated the petition to alternative remedy, Justice G.S.Singhvi, as His Lordship then was, had observed that a case ought to have been registered. Mr. Sunil Nehra, appearing for the State has also placed reliance upon the observations of Hon'ble Apex Court in Skiri Vasu v. State of U.P. 2008 (1) RCR (Criminal) 392 to contend that no directions can be issued by this Court under Section 482 Cr.P.C. regarding registration of case. Shiv Narain Singh had died. There are various allegations regarding the death of Shiv Narain Singh. From the facts of this case, it emerges that the Area Judicial Magistrate, under Section 190(1)(c) Cr.P.C. is competent to redress the grievance of the petitioner. 6 CRM No. 12971-M of 1999 File of the present case be sent to the Area Judicial Magistrate (1st Class) who shall form an opinion whether to proceed in the present case under Section 156 (3) Cr.P.C. or 190 (1)(c) Cr.P.C. Section 190(1)(a) of the Code of Criminal Procedure vests power in the Magistrate to proceed in accordance with law when such complaint has been received and also Section 190(1)(c) to proceed when any information has been received from any person other than a police officer or upon his own knowledge that such offence has been committed. Section 156 (3) of the Code of Criminal Procedure empowers any Magistrate to order investigation as has been envisaged under Section 156 Cr.P.C. Section 2(g) of Cr.P.C. defines inquiry as under: “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;” Furthermore, Section 2(h) defines investigation, which also reads as under: “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.” After this file is received by the Judicial Magistrate (1st Class), he shall formulate his own opinion in this case to find out whether any offence has been committed and inquiry is to be conducted or an investigation is called for. 7 CRM No. 12971-M of 1999 The Code of Criminal Procedure vests ample powers in the Area Judicial Magistrate (1st Class) to redress the grievances of the petitioner. With these observations, present petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE May 28, 2008 DK/ rps 8