Criminal Revision No. 70 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 70 of 2010 Date of Decision: 14.01.2010 Mrs. Anita Herbert wife of Dr. Ashok Herbert r/o Herbert Hospital, Jagadhri, District Yamunanagar. ...Petitioner Versus 1. State of Haryana. 2. David Singh son of Sadhu Bhakatawar Singh, c/o Principal Bungalow, St. Thomas School, Jagadhri. 3. Victor Masih s/o Sheru Masih, r/o H.No. 777, Christian Colony, Jagadhri. 4. Neelima Benjamin wife of David Benjamin, r/o Thomas School, Jagadhri. 5. Suman Masih w/o Victor Masih, r/o H. No. 1779, Christian Colony, Jagadhri. 6. Jaibal Philip s/o Rehmat Masih, r/o C-1/60, Nalagarh Colony, Jagadhri. 7. Sanjay Collin s/o Siden Michal r/o H. No. 1779, New Christian Colony, Jagadhri. 8. Advin Chisti s/o Aziz Masih r/o H. No. 1854, Old Pastorate House, Civil Lines, Jagadhri. 9. Bubble @ Jarina wife of William Christian r/o H. No. 2302, Ishapur Colony, Jagadhri. 10. Pastor Denis Lal, Christ Church, adjacent to St. Thomas School, Jagadhri. 11. Mrs. Parveen wife of Kaalu, r/o Issa Nagri, Jagadhri. 12. Neeraj son of Sharvan Kumar, r/o Old Pastorate House, Civil Lines, Jagadhri. ...Respondents Criminal Revision No. 70 of 2010 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Pawan Kumar Aryan, Advocate, for the petitioner. SHAM SUNDER, J. * * * * This revision-petition, is directed, against the order, dated 14.03.09, rendered by the Court of Additional Chief Judicial Magistrate, Jagadhri, vide which, it dismissed the application, under Section 216 of the Code of Criminal Procedure, holding that, no offence, punishable with the aid of Section 149 of the Indian Penal Code, was made out, against the accused, and, thus, declined to frame charge for the said offence. 2. The facts, in brief, are that, on 15.07.01, the accused, including the complainant, and some other members of the Christian Community assembled, in the Church, for prayer, to the Almighty. The husband of the complainant, asked Pastor Denis Lal, to give him sometime, to address the assembly, but no such permission was granted. In the meanwhile, the accused, armed with lathis, used force, against the family of the complainant, and commanded the female members, to attack her, and her family. Ultimately, the first information report, was registered. Since no charge, with the aid of Section 149 of the Indian Penal Code, had been framed, an application under Section 216 of the Code of Criminal Procedure, was moved, which was dismissed, vide the order impugned. Criminal Revision No. 70 of 2010 3 3. I have heard the Counsel for the petitioner, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioner, has submitted that, as per the allegations, contained in the first information report, as also from the evidence, on record, it was prima-facie established, that all the accused, were members of an unlawful assembly, the common object whereof, was to inflict injuries, on the person of the complainant. He has further submitted that, as such, the offence, punishable under Section 149 of the Indian Penal Code, was committed, by the accused- petitioner, but the trial Court, acted illegally, in dismissing the application, under Section 216 of the Code of Criminal Procedure. He has further submitted that the order impugned, being illegal, was liable to be set aside. 5. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioner, in my considered opinion, the revision-petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The perusal of the order impugned, shows that, when the complainant namely Anita Herbert, appeared, as PW1, she stated, that when the accused and she was present, in the Church, for making prayer, to the Almighty, permission by her husband Ashok Herbert, was sought, from Pastor Denis Lal, to address the assembly, but, no such permission, was granted. Thereafter, the husband of the complainant, came out. All the members of the gathering also came outside the Church. The husband of the complainant, again sought the permission of Pastor Denis Lal, to address the gathering, but he was not Criminal Revision No. 70 of 2010 4 allowed. In the meanwhile, the accused, came there, armed with lathis, in order to beat the complainant and her family members, and also tried to snatch the video camera, from the hands of her daughter, who was making the video film of the incident. The other witnesses, were also examined. They did not state, that the accused, were members of an unlawful assembly, the common object whereof, was to cause injuries, on the person of the complainant and her husband. The accused, were already present, in the Church. It was not that, they came from outside. It was only when the husband of Anita Herbert, was not allowed to address the gathering, by the Pastor, that some accused, came towards them, to beat them. The Court below, was right, in holding, that no motive, was brought, on record, which led the accused, to come forward to beat the complainant. It is evident, from the order impugned, that none of the witnesses stated that the accused were holding the weapons. Neither any lathi, nor danda, was recovered, from any of the accused, during the course of investigation. As per the MLR, no injury, was caused, on the person of the injured. Under these circumstances, in my considered opinion, the trial Court, was right, in holding that, since the ingredients, required for constituting the unlawful assembly, as provided, under Section 149 of the Indian Penal Code, were not fulfilled, no charge, for the the offence, with the aid of Section 149 of the Indian Penal Code, could be framed. The Court below, was right, in holding, that charge, under Section 147 of the Indian Penal Code, as was made out, from the evidence, on record, was already framed. The order impugned, therefore, does not suffer from Criminal Revision No. 70 of 2010 5 any illegality or infirmity, warranting the interference of this Court. The same is liable to be upheld. 6. For the reasons recorded above, Criminal Misc. No. M-70 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 14.01.2010 (SHAM SUNDER) Amodh JUDGE