Crl.Misc.No.M- 3743 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Misc.No.M- 3743 of 2009 (O&M) Date of decision: 13.5.2010 Shamsher Singh and others ......Petitioners Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.B.K.Mann, Advocate, for the petitioners. Mr.Amandeep Singh Rai, AAG, Punjab. **** SABINA, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure for quashing FIR No. 390 dated 26.8.2008 (Annexure P-1), under Sections 465/ 467/ 477-A/ 199/ 200/ 182/ 120-B of the Indian Penal Code ('IPC' for short), registered at Police Station Sadar Patiala and all the subsequent proceedings arising therefrom. The contents of the FIR (Annexure P-1) read as under:- " It is respectfully submitted that a case FIR No.608 Crl.Misc.No.M- 3743 of 2009 (O&M) 2 dated 22.12.2007 under Section 18 of the NDPS Act, 1985 was registered at P.S.Sadar, Patiala against the accused Yadwinder Singh @ Yaddu s/o Gurbachan Singh s/o Piara Singh caste Jat, r/o village Ibrahimpur, P.S.Julkan and Wasir s/o Noor r/o Rajgarh (MP) the investigation of which is with me. 15 kgs of opium was recovered from the accused Yadwinder Singh and Wasir above mentioned in the Accent Car No.HR-03-F-0433 accused Gurbachan Singh had escaped from the spot by taking advantage of the darkness. Challan was presented against Yadwinder Singh and Wasir on 10.5.2008 in the learned Court. Accused Gurbachan Singh s/o Piara Singh r/o village Ibrahimpur was declared a proclaimed offender on 23.5.2008 by the Court of Sh.S.S.Panesar, ACJM, Patiala. Challan against him has also been presented on 28.5.2008 in the Court. Accused Shamsher Singh s/o Gurbachan Singh s/o Piara Singh r/o village Ibrahimpur had submitted applications/representations dated 25.4.2008 and 4.6.2008 to the higher officers for enquiry to the effect that the police of P.S. Sadar, Patiala has lodged a case of opium against his father and brother on 22.12.2007. He had submitted that at that time his father who was said to have escaped from the spot was in fact admitted in the hospital at Tibbi, District Hanumangarh from 19.12.2007 on account of Crl.Misc.No.M- 3743 of 2009 (O&M) 3 accident and is a patient of diabetes. This representation was enquired into by Sh.Bhupinderjit Singh Virk, PPS SP(D) Sangrur. In his enquiry report, he has written that on the scrutiny of the telephone record of the complaint from 19.12.007 to 23.12.2007 no STD call has been received from outside. Apart from this, from the statement of Dr.Munish Singhal MD SMO CHC Tibbi, presently posted at Surewal Hanumangarh, SP(D) Sangrur has found in his enquiry that the family members and relatives of Gurbachan Singh have connived with Dr.Munish Singhal and have fabricated the record regarding the admission of Gurbachan Singh in civil hospital Tibbi in FIR No.608 dated 22.12.2007 u/s 18 of the NDPS Act at P.S.Sadar, Patiala, in an attempt to grant him benefit for the same. During the enquiry, it has also been clarified that the facts submitted by the complainant have been found to be false. There is no truth in the representations. On the receipt of the enquiry report into the case, it has been found that Gurbachan Singh, in connivance with his son Shamsher Singh s/o Gurbachan Singh had got a false representation made and had produced the following witnesses, i.e. Shamsher Singh s/o Gurbachan Singh, Amrik Singh s/o Malook Singh, Sahib Singh s/o Darshan Singh, Pal Singh s/o Geja Singh r/o Ibrahimpur, Angrej Singh s/o Resham Singh and Amrik Crl.Misc.No.M- 3743 of 2009 (O&M) 4 Singh s/o Hajara Singh, caste Jat, r/o Gharam, P.S.Julkan, District Patiala have given false statement in favour of Gurbachan Singh. It has been found that all of them, in connivance with each other and in connivance with Dr.Munish Singhal MD PHC Tibbi, presently posted at Surewal Hanumangarh, have wrongly shown him as admitted in the hospital. That all the above mentioned, in connivance with each other have prepared false documents to get him out of the above mentioned NDPS case, by showing him to be admitted in the hospital. Action is required under Sections 465, 467, 477, 477-A, 199, 200, 182, 120-B IPC. The same may be accepted and a case registered against the above mentioned and permission be granted to investigate the matter. The report is being submitted to you for necessary action.” Learned counsel for the petitioners has submitted that petitioner No.2 has since died and the petition qua him be dismissed as not pressed. The death certificate of petitioner No.2 has been placed on record as Annexure A-4. Accordingly, this petition qua petitioner No.2 is dismissed being not pressed. Learned counsel on behalf of the remaining petitioners has submitted that the FIR qua them was liable to be quashed. A criminal case was registered against Dr.Munish Singhal, at Police Crl.Misc.No.M- 3743 of 2009 (O&M) 5 Station Tibbi District Hanumangarh (Rajsthan) and after due investigation, cancellation report was filed in the said case. The cancellation report was accepted by Judicial Magistrate, Ist Class, Tibbi, District Hanumangarh. In these circumstances, the present FIR, qua the petitioners, who were witnesses to the plea of alibi taken by deceased Gurbachan Singh, was liable to be quashed. Learned counsel, in support of his arguments, has placed reliance on Natraj @ T.Natarajan vs. P.Venkatachalam 2008 (2) RCR (Criminal) 409, wherein in para 8, is has been held as under:- “ Therefore, this Court is of the considered view that ends of justice will be met if the order of the learned magistrate taking cognizance of the complaint and issuing process to the petitioner is set aside and the matter is remitted back to the learned magistrate. The learned magistrate shall give an opportunity to the respondent/complainant to file a petition to condone the delay of 10 days in filing the complaint and if any such petition is filed, notice should be ordered to the petitioner herein and after giving an opportunity of hearing to him appropriate orders should be passed in the petition seeking condonation of delay. If the delay is condoned then the learned Magistrate can take cognizance of the complaint and proceed further in accordance with law.” Learned counsel has further placed reliance on Crl.Misc.No.M- 3743 of 2009 (O&M) 6 Managing Director, Woodburn Developers and Builders Pvt. Ltd. vs. Debamaya Panigrahi 2007 Crl.L.J. 3699, wherein in para 8, is has been held as under:- “ Section 142 (b) of the Act before the amendment simply said that a Magistrate would not take cognizance of an offence unless a complaint in writing is filed within 30 days from the date of cause of action. Although it is a provision under a special statute, yet considering the legislative intent it would not be illegal to condone the delay by use of section 5 of the Limitation Act, if sufficient cause is shown for the delay. Xx xxxxx xxxxx xxxx xxx” Learned counsel has next placed reliance on R.Kanthimathi and two others vs. Bank of India, Dharmapuri Branch Rep. by its Senior Manager Vijayaragaran Dharmapuri 2007 (4) RCR (Criminal) 191, wherein in para 18, is has been held as under:- “ In the light of the decisions referred by both the learned counsel, it is clear that the petition filed without an accompanying affidavit, setting out reason for the delay, would not be sufficient to quash the proceedings initiated under Section 138 of Negotiable Instruments Act, since it is only a curable defect. Therefore, the respondent/complainant shall file an affidavit setting out Crl.Misc.No.M- 3743 of 2009 (O&M) 7 reasons for the delay in filing the complaint and the trial Court, thereafter shall provide opportunity to the petitioners/accused to raise their defence, by way of filing counter and if the court satisfies that there are adequate and cogent reasons to condone the delay, the same can be decided on merits. As it is a curable defect, I am of the considered view that the complaints cannot be quashed, as prayed for by the petitioners.” Learned counsel has also placed reliance on Surekha Sandip Hajare v. Instacomp, (Bombay) 2004 (2) RCR (Criminal) 408, wherein in para 16, is has been held as under:- “ Even during this trial also the Court can ask the complainant or his lawyer to explain the doubt about the tenability on the point of limitation. Whenever such occasion arises the complaint is under legal duty to satisfy the Court that the complaint is within limitation. Even at such late stage also an application is permissible to be moved praying for condonation of delay and in fit cases, the Court should be liberal in condoning such delay if the complainant is not blamable for his own acts. If the delay has been caused by happening of some event not within control of complaint he would be entitled to get the delay condoned if he is not indolent. The law does not help the indolent. The delay has to be condoned in Crl.Misc.No.M- 3743 of 2009 (O&M) 8 the interest of justice and in context with the grounds which were beyond the control of such complainant in the interest of justice.” Learned State counsel, on the other hand, has submitted that the offence committed by the petitioners was serious in nature. In the present case, Gurbachan Singh deceased was facing criminal trial in FIR No.608 dated22.12.2007 under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'), registered at Police Station Sadar, Patiala along with other co-accused. As per the prosecution case, Gurbachan Singh, aged more than 65 years, had succeeded in escaping under the cover of darkness. Gurbachan Singh took up the plea that he was never present at the spot and rather he along with Amrik Singh and Angrej Singh had gone to Hanumangarh on 19.12.2007 at about 6.00 a.m. to get certain medicines for his treatment qua diabetes. On the way to Hanumangarh, Gurbachan Singh suffered injuries as he had slipped from the bus, while he was going to answer the call of nature. Gurbachan Singh was admitted in Civil Hospital, Tibbi at about 5.00 p.m. on 19.12.2005 and he was discharged on 23.12.2007. Thus, Gurbachan Singh raised a plea of alibi. The present FIR was lodged against the petitioners on the allegations that they had produced the false certificate qua admission of Gurbachan Singh in the hospital. The petitioners had supported the plea of Gurbachan Singh qua his admission in the Civil Hospital, Tibbi. A Crl.Misc.No.M- 3743 of 2009 (O&M) 9 criminal case was registered against Dr.Munish Singhal. A perusal of Annexure A-2 reveals that after thorough investigation, it was reported that Dr.Munish Singhal was innocent. The relevant paragraph reads as under:- “1. That Dr.Munish Singhal has shown one Gurbachan Singh son of Piara Singh to have remained admitted in PHC Tibbi and Surewala from 19.12.2007 to 23.12.2007 and the indoor slip has also been issued by Dr.Munish Singhal; whereas, the indoor patient register of PHC Tibbi does not mention about the same. During investigation, it is found that Gurbachan Singh remained admitted in CHC Tibbi from 19.12.2007 to 23.12.2007 and it is mentioned in the indoor register at Sr.No.33 and in the outpatient register at Sr.No.3488 and copy of the same has been placed on the file. On 20.12.2007, one Smt.Shakuntla Devi was admitted in CHC Tibbi, the statements of Shakuntla, her husband Rajinder Singh and Class IV employee Luna Ram have been recorded to this effect. The Punjab Police have also presented the challan against Dr.Munish Singhal in case FIR No.390/08. Xxxx xxxx xxxxx xxxx xxxxx xxxxx xxxx xxxxx xxxxx xxxxx xxxx xxxxx Therefore, the complete original case file and the cancellation report is being presented and it is prayed that Crl.Misc.No.M- 3743 of 2009 (O&M) 10 the order be passed as the case is totally misconceived and the order be passed accordingly.” Vide Annexure A-3, Judicial Magistrate, Ist Class, Tibbi District Hanumangarh accepted the final report submitted by the Investigating Agency. In these circumstances, Dr. Munish Singhal, who had allegedly issued a false certificate, was found innocent and during investigation, it transpired that Gurbachan Singh had remained admitted in Civil Hospital, Tibbi from 19.12.2007 to 23.12.2007. The continuation of criminal proceedings against petitioners Nos. 1, 3 to 7 would be nothing but abuse of process of law. Moreover, Gurbachan Singh has since died. Accordingly, the present petition is allowed. FIR No. 390 dated 26.8.2008 (Annexure P-1), under Sections 465/ 467/ 477-A/ 199/ 200/ 182/ 120-B IPC registered at Police Station Sadar Patiala , and all the subsequent proceedings, arising therefrom, are quashed. (SABINA) JUDGE May 13, 2010 anita