Criminal Misc. No. M-12667 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-12667 of 2009 Date of decision : September 01, 2009 Balwinder Singh and another ....Petitioners versus State of Punjab and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. HS Dhindsa, Advocate, for the petitioners Mr. Gaurav Garg Dhuriwala, AAG Punjab for respondent nos. 1 to 4 Mr. JS Toor, Advocate for respondent nos. 7 to 10 None for respondent nos. 5 and 6. L.N. Mittal, J. (Oral) Reply on behalf of respondent nos. 7 to 10 filed by learned counsel for respondent nos. 7 to 10 in Court today is taken on record. Balwinder Singh and his daughter Ramandeep Kaur (prosecutrix) have filed this petition under section 482 of Code of Criminal Procedure (for short, Cr.P.C.) invoking inherent jurisdiction of this Court for ordering further investigation in FIR No. 27 dated 14.2.2008, under sections 363, 366, 376 IPC, Police Station Payal, District Ludhiana. Criminal Misc. No. M-12667 of 2009 2 Petitioner no. 1 lodged FIR Annexure P/1 alleging that his daughter (petitioner no. 2 who is aged 16 years) had been kidnapped by respondent nos. 5 to 10 on 2.2.2008. FIR was registered under sections 363 and 366 IPC. After recovery of prosecutrix and after recording her statement, offence under section 376 IPC was also added. The police presented challan i.e. report under section 173 Cr.P.C. against respondent nos. 5 and 6 only who had been arrested in the case and it was also stated in the challan that action would be taken for arresting the remaining accused i.e. respondent nos. 7 to 10. The prosecutrix moved application Annexure P/5 in the trial court for further investigation of the case alleging interalia that her statement under section 161 Cr.P.C. had been changed by the Investigating Officer and her birth certificate was also not annexed with the challan. It was alleged that according to birth certificate, Annexure P/2, her date of birth is 4.9.1992 meaning that she was below the age of 16 years at the time of occurrence. In the school record, as per certificate Annexure P/3, her date of birth was mentioned as 1.1.1992, which would show her to be above the age of 16 years on the date of occurrence. Learned trial court vide order dated 25.3.2009, Annexure P/6 dismissed the application, Annexure P/5. The said order has been impugned in the instant petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that birth certificate of the prosecutrix was intentionally not annexed with the challan by the Investigating Officer. Learned counsel for respondents no. 7 Criminal Misc. No. M-12667 of 2009 3 to 10 contended that birth certificate Annexure P/2 could not have been handed over by the petitioners to the Investigating Officer during investigation because the same was obtained by moving application dated 14.1.2009 i.e. long after the preparation of challan dated 4.5.2008. Learned counsel for respondent nos. 7 to 10 also contended that birth certificate Annexure P/2 is not linked with the prosecutrix. Learned State counsel contended that even the prosecution moved application in the trial court for further investigation which has, however, been dismissed. Learned State counsel also contended that explanation of SI Balkar Singh and SI Jai Singh who had investigated the case was also sought for and SI Balkar Singh was found innocent whereas SI Jai Singh is on long leave. Learned counsel for the petitioners also vehemently contended that statement of the prosecutrix under section 161 Cr.P.C. has been completely changed and distorted. Learned counsel for respondent nos. 7 to 10, however, contended that the prosecutrix would be at liberty to make any statement while appearing in the witness box in the Court. I have carefully considered the rival contentions. Even in challan presented by the police, it has been mentioned that action would be taken for arrest of respondent nos. 7 to 10 in the case. However, no action whatsoever was taken to arrest them and to array them as accused for prosecution. Moreover, the fact that respondent nos. 7 to 10 were yet to be arrested would show that the investigation was not yet complete when the challan Annexure P/4 was presented against respondent nos. 5 and 6 only. Birth certificate of the prosecutrix would also be a material piece of evidence and it has to be found by investigation whether birth certificate Annexure P/2 relates to the prosecutrix or not. Statement Criminal Misc. No. M-12667 of 2009 4 of prosecutrix under section 161 Cr.P.C. is also alleged to have been distorted or changed and this aspect also requires to be probed. In any event, respondent nos. 7 to 10 have not been found innocent in challan Annexure P/4 and have rather been found to be involved in the occurrence because it was mentioned in the challan that action for their arrest was to be taken. In view of the aforesaid, I am of the considered opinion that it is necessary to order further investigation in the case. The instant petition is accordingly allowed. Impugned order dated 25.3.2009, Annexure P/6 passed by learned trial court is set aside. Respondent No. 2 i.e. Senior Superintendent of Police, Police District Khanna is directed to depute some officer not below the rank of Deputy Superintendent of Police for further investigation of the case in accordance with law and to submit supplementary report of further investigation in the concerned court. ( L.N. Mittal ) September 01, 2009 Judge 'dalbir'