Crl. Misc. No. M-1902 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No. M-1902 of 2011 (O&M) Date of Decision : 24.03.2011 Ranjodh Singh & another .......... petitioners Versus State of Punjab & others ...... Respondents CORAM : HON'BLE Ms. JUSTICE RITU BAHRI Present : Mr. Mansur Ali, Advocate and Mr. H.S. Deol, Advocate for the petitioners. **** RITU BAHRI, J. This petition under section 482 of the Code of Criminal Procedure is for directing the respondents to take action on the representation filed by the wife of petitioner No.1, dated 16.11.2010 (Annexure P-5). Brief facts of the case are that FIR No. 31 dated 31.5.1998 was registered at Police Station Sudhar under Sections 302, 148, 149 IPC and Section 25/27/54/59 of the Arms Act on the complaint of Balbir Singh dated 31.5.1998. As per this FIR complainant's father Pritam Singh and one Jaspal Singh alias Bhola were allegedly killed by the petitioners and six others. The petitioners were convicted and sentenced by the learned trial Court on Crl. Misc. No. M-1902 of 2011 -2- 19.10.2000 for life. Appeal filed in the High Court was dismissed vide Crl. Appeal No. 63-DB of 2001 vide judgment dated 23.1.2007. In the year 2004 when FIR No. 47 dated 10.5.2004 was registered under Sections 302, 34, 120-B IPC and Section 25/54/59 of the Arms Act at Police Station Sudhar, Districti Jagraon with regard to the murder of one Jaspal Singh alias Gorkha. This FIR was registered against Balbir Singh son of Pritam Singh, who had got registered the earlier FIR against the petitioner. This FIR was investigated by S.P. Crime wherein the petitioners were convicted. In this trial deceased Pritam Singh's wife Charan Kaur gave a statement that to avenge the murder of Pritam Singh, Jagpal Singh alias Gorkha was killed by her son Darshan Singh. In this regard statement made by Charan Kaur is Annexure P-3. Statement made by Sarpanch Malkiat Singh is Annexure P-4 and Statement of Balbir Singh s/o Pritam Singh given in the second FIR is Annexure P- 6. A prayer is being made that the representation made to the Senior Superintendent of Police, District Jagraon should be considered and looked into with regard to false implication of the applicant and applicant's husband and Daljit Singh alias Jeeta and others with regard to the FIR No. 31 dated 31.5.1998. Mr. Mansur Ali, learned counsel appearing on behalf of the petitioner has heavily relied upon the statement made by Smt. Charan Kaur widow of Pritam Singh. In this statement she has stated that her husband had some land dispute with Ranjodh Singh, due to which Ranjodh Singh murdered her husband Pritam singh and Jaspal Crl. Misc. No. M-1902 of 2011 -3- Singh @ Bhola son of Randher Singh when he was in the fields on the motor, he was shot dead. However, lateron she came to know that this was done by Jagpal Singh @ Gorkha. Her younger son Darshan Singh eventually killed Gorkha one day to avenge the death of his father. Thereafter FIR was registered against Darshan Singh. Darshan Singh and Balbir Singh have since been convicted for the murder of Gorkha in FIR No. 31 dated 31.5.1998. Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Zahira Habibulla H. Sheikh and Anr. vs. State of Gujrat and Ors. 2004(4) S.C.C. 158 to contend that in case of defective investigation conducted by the police officer, accused can not be acquitted solely on account of the defect in the investigation. Reinvestigation and retrial in such matters can be ordered by the Supreme Court. The aim of the Court is to find out the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. In the present case, the statements have been recorded in the FIR where Balbir Singh and Darshan Singh were being tried for the murder of Gorkha. The truth has come out that murder of Pritam Singh was committed by Gorkha. Heard learned counsel for the petitioners. In the present case, a statement has been made by Charan Kaur wife of Pritam Singh that an FIR No. 47 dated 10.5.2004 under Sections 302, 311, 120-B IPC and Section 25-54-59 of the Arms Act, she has stated that her husband had some land dispute with Ranjodh Singh and consequently Ranjodh Singh Crl. Misc. No. M-1902 of 2011 -4- murdered her husband Pritam Singh and Jaspal Singh @ Bhola. However, lateron she came to know that this was done by one Jagpal Singh @ Gorkha. When her younger son Darshan Singh came to know that Gorkha had killed his father. He revenged by killing Gorkha. As per defective investigation, they have been convicted in FIR No. 31 dated 31.5.1998 under Sections 302, 148, 149 IPC and Section 25/27/54/59 of the Arms Act, on a complaint, filed by Balbir Singh. They were convicted by the learned trial Court on 19.10.2000. Their appeal in the High Court has been dismissed vide judgment dated 23.1.2007. As per statement given by Charan Kaur the petitioners have been convicted on a defective investigation conducted by the police. Facts of this case do not attract a case of defective investigation. The ratio of judgment in Zahira Habibulla H. Sheikh and Anr. vs. State of Gujrat and Ors. (supra) is not applicable to the facts of the present case. There was a dispute of land between Pritam Singh and Ranjodh Singh and as per investigation carried out in FIR No. 31 dated 31.5.1998, the petitioners were found guilty. However, during trial in FIR No. 47 dated 10.5.2004 under Sections 302, 311, 120-B IPC and Section 25-54-59 of the Arms Act, a statement has been made by Charan Kaur widow of Pritam Singh, who happens to be mother of the accused Darshan Singh and Balbir Singh, where her statement given in this FIR would be a question of investigation. Sing she has given this evidence in the trial in FIR No. 47, the proper remedy available to the petitioners is to file an application under Section 340 of the Code of Criminal Procedure, where the appeal ini FIR No. 47 dated Crl. Misc. No. M-1902 of 2011 -5- 10.5.2004, is pending invoking the provisions of Section 195 of the Code of Criminal Procedure. The competent Court can initiate the proceedings against the person, who has falsely given affidavit or evidence before the Criminal Court. This proposition of law has been settled by the Hon'ble Supreme Court in the case of B.K. Gupta vs. Damodar H. Bajaj, 2001(9) SCC 742, wherein the Hon'ble Supreme Court has been pleased to observe as under :- “3. From the above, it follows that there are two conditions on fulfilment of which a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court. The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him. It is no doubt true that the High Court has recorded a finding that the appellant has made a false statement on oath and has also used evidence known to be false and fabricated. On a perusal of the record we do not find any material on record to show that there was any application of mind by the Court t hat it was expedient in the interest of justice to make an enquiry and file a complaint against the appellant. We have also perused the judgment in Writ Petition No. 1442 of 1983 and the judgment does not show that the Court applied its mind regarding the second condition as to whether it is expedient in the Crl. Misc. No. M-1902 of 2011 -6- interest of justice to make an enquiry into the false evidence given by the appellant and a complaint is to be filed. In the absence of application of mind in regard to expediency for filing complaint against the appellant, the order passed by the High Court directing the Prothonotary and Senior Master of the High Court to file a complaint against the appellant was vitiated.” As per the Hon'ble Supreme Court judgment the Court which entertains the application under Section 340 Cr.P.C. has to apply its mind where it was expedient in the interest of justice to make an enquiry and file a complaint against the person who had given false affidavit. In view of the above observation of the Hon'ble Supreme Court, this criminal miscellaneous is dismissed and the petitioners if so advised can file an application under Section 340 Cr.P.C. before the Court where the evidence had been given by Charan Kaur that Darshan Singh had killed Gorkha to avenge the death of his father Pritam Singh. 24.3.2011 (RITU BAHRI) 'sp' JUDGE