Crl. Misc. No.M-26277 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-26277 of 2010 Date of Decision: 11.02.2011 Surjit Singh ....Petitioner Versus State of Punjab and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Rajul Sharma, Advocate for the petitioner. Ms. Neelam, A.A.G., Punjab for the respondent-State. Mr. Anil Sharma, Advocate for respondent No.2/complainant. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing of the FIR No.87 dated 21.06.2006 registered under Sections 307, 326, 324, 323, 148 and 149 of the Indian Penal Code, 1860 registered at Police Station Goraya and all subsequent proceedings arising therefrom. The facts as stated by the learned counsel are that the petitioner is a permanent resident of United States. It is further stated that he has not come to India since August, 2005. The FIR was lodged on 21.06.2006. On this date, the petitioner was not even in India. The alleged Crl. Misc. No.M-26277 of 2010 2 occurrence is dated 19.06.2006. On this date also, the petitioner was not in India. A copy of the passport has been placed on record as proof of the same. Thereafter, the petitioner was enroped on the statement of one Kranti Deepak. A supplementary statement of respondent No.2/complainant was recorded on 03.04.2007 under Section 161 of the Code of Criminal Procedure, 1973 stating therein that the present petitioner had sent the money to Sushil Kumar for paying the persons to cause injury to respondent No.2/complainant, whereas, all the co-accused of the petitioner including Kranti Deepak stands discharged by the trial Court. Even the respondent No.2/complainant appeared in the witness box and stated that he had not made any such statement that the present petitioner was involved in any manner and that he ever given money for inflicting injuries. The co-accused of the petitioner faced trial. However, they were acquitted. The petitioner was not discharged as he was a proclaimed offender and did not face trial. However, taking into consideration the facts and circumstances of the case, the petitioner was permitted by this Court vide order dated 10.09.2010 to surrender before the trial Court. The petitioner, accordingly, put in appearance before the trial Court and was released on bail. Thereafter, during the pendency of the present petition, an application Crl. Misc. No.60999 of 2010 was moved, stating therein, that the matter was compromised between the parties and the present petition be, accordingly, allowed in view of the said compromise. Affidavit of respondent No.2/complainant-Balwinder Kumar dated 09.11.2010 was also placed on record. Paras 2 and 3 of the said affidavit reads as under :- “ 2. That during the pendency of the present proceedings, the matter has been compromised between the petitioner and the answering respondent. 3. That as a result of the same, the answering respondent is no longer interested in pursuing the Crl. Misc. No.M-26277 of 2010 3 FIR No.87 dated 21.06.2006.” Accordingly, notice of motion was issued and reply dated 11.02.2011 has been filed on behalf of respondent No.2. However, in the preliminary objection of the said reply, the respondent No.2 did not dispute that he had submitted his affidavit that he had no objection, if the proceedings in pursuant to the above said FIR are quashed but surprisingly went on to submit as under :- “ It is further submitted that complainant- respondent executed an affidavit on the assurance of the petitioner that when he will come back to India, he will execute the compromise deed with complainant-respondent No.2 and said affidavit is required to initiate the proceedings in the Hon’ble High Court but later on, the petitioner refused to execute the compromise deed and started threatening respondent-complainant.” Learned counsel for the parties were heard at length. It is an admitted position that the petitioner was not in India when the FIR was registered against him. He was admittedly not in India even on the date of alleged occurrence i.e. 19.06.2006. He left India in August 2005. Absolutely, no role has been attributed to him in the FIR. The petitioner was involved on the basis of confessional statement of one of the co-accused-Kranti Deepak. The confessional statement of the co-accused is not admissible in evidence. Moreover, Kranti Deepak has since been discharged by the trial Court. In fact, the respondent No.2/complainant appeared in the witness box and specifically stated that he had not made any supplementary statement dated 03.04.2007, on the basis of which, the present petitioner was enroped. Even though, Balwinder Kumar appears to have changed his mind qua the compromise as is evident from his reply dated 11.02.2011, the fact remains that he does not dispute that he had voluntarily given an Crl. Misc. No.M-26277 of 2010 4 affidavit, stating therein, that he has no objection, if the said FIR is quashed. Moreover, co-accused stand acquitted on the basis of the evidence led by the prosecution. There is no fresh evidence. It is not case of the respondent that there is any further or different evidence qua the present petitioner. The evidence qua the present petitioner and the co-accused is the same. Hence, allowing the trial to proceed against the petitioner will only result in unnecessary waste of time. In fact, the Additional Sessions Judge, Jalandhar while discharging the co-accused of the petitioner vide his order dated 05.02.2010 held that the prosecution had failed to connect any of the accused with the charge framed against them. The petitioner was enroped on the basis of supplementary statement made by respondent No.2/complainant-Balwinder Kumar, whereas, the statement of Balwinder Kumar appearing as PW-3 reads as under :- “ I did not made supplementary statement dated 03.04.2007 mark X/1. I identify my signature at place Ex.PX/1 volunteered my such signatures were received by the police on blank paper.” Thus, there is admittedly no case made out against the petitioner. In the case of Gurpreet Singh alias Khinder vs. State of Punjab reported as 1995(2) RCR (Crl.) 127, somewhere in similar circumstances, where the petitioner was charged for an offence under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, as well as, Sections 302/34 IPC and the FIR was quashed as the co- accused, who were arrested stood acquitted by the trial Court. It was held that where the evidence is same, continuation of proceedings in the case of the petitioner would result in waste of court's time and unnecessary expenditure on State exchequer. The proceedings in the said case against the petitioner were quashed while relying on the judgment of Hon'ble the Crl. Misc. No.M-26277 of 2010 5 Apex Court rendered in the case titled as Madhavrao Jiwaji Rao Scindia and another vs. Sambhajirao Chandrojirao Angre and others reported as 1988(1) Recent CR 565 by observing in para 4 as under :- “ The local position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are weak and, therefore, no useful purpose is likely to be served by allowing criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” In another case, the Single Bench of Delhi High Court titled as Urmila Devi vs. The State (NCT of Delhi), (Delhi) reported as 2007(1) RCR (Criminal) 246 while relying on various judgments of Hon'ble the Apex Court and the other High Courts quashed the proceedings against the petitioner under Section 304-B/34 IPC, as all the co-accused were acquitted and there was no question of invoking Section 34 IPC. Para 5 of the said judgment reads as under :- “5. The learned counsel for the petitioner took me through the judgment dated 24.09.2003 to show the manner in which the evidence led by the prosecution witnesses and, particularly, by the mother and sisters of the deceased (Meenu) have been discussed in detail by the trial court and have been found to be untrustworthy. He then referred to the decision of a learned Single Judge of this Court in the case of Sunil Kumar v. State, 81(1999) DLT 197 wherein, also, the co-accused had Crl. Misc. No.M-26277 of 2010 6 been acquitted while the petitioner therein had been absconding and, therefore, the trial could not proceed against him. Subsequently, after the co-accused were acquitted, the petitioner, in that case, surrendered before the Additional Sessions Judge and sought his discharge on the ground that the other accused had been acquitted of the offences under Sections 148/302/149 IPC. Rejecting that prayer, the learned Additional Sessions Judge had framed a charge under Sections 304/34 IPC against the petitioner therein. However, this court set aside that order and concluded that the trial would only mean a wastage of time inasmuch as it was of the view that the evidence against all the accused persons was inseparable and indivisible and, therefore, when the co-accused had been acquitted, there was no reason to treat the petitioner differently on the basis of the same evidence. Paragraph 3 of the said decision is relevant and it reads as under:- “3. The question thus is as to whether in the face of the judgment of acquittal the petitioner should still be permitted to undergo the ordeal of a trial. In Sat Kumar v. State of Haryana, AIR 1974 SC 294 it was held that there is no rule of law that if the Court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against whom there is absolute certainly about his complicity in the crime based on the remaining credible part of the evidence of that witness must be acquitted. But where the evidence against all the accused persons is inseparable and indivisible and if some of the accused persons have been acquitted, the remaining accused persons cannot be treated differently on the basis of the same evidence.” In the case of Amarjit vs. State reported as 1996(1) C.C. Cases 465, the co-accused had been acquitted. The Court came to the conclusion that the petitioner was not required to undergo the ordeal of a trial, particularly, when the co-accused was acquitted. Crl. Misc. No.M-26277 of 2010 7 The facts of the present case are also similar. The injured, as well as, the eye witness did not recognize the co-accused of the present petitioner and refused to identify them. Thus, the statement of these co- accused, who had not been identified, cannot be taken against the present petitioner. Even the complainant has not supported the prosecution evidence. There is no new evidence against the present petitioner. Thus, in case, the evidence is sought to be adduced is the same, it will unnecessary waste the time of the Court and the result is also likely to be same as in the case of co-accused. In view of the above, it would be a futile exercise to continue the proceedings against the present petitioner. In view of the above discussion and facts, the present petition is allowed and FIR No.87 dated 21.06.2006 registered under Sections 307, 326, 324, 323, 148 and 149 of the Indian Penal Code, 1860 registered at Police Station Goraya and all subsequent proceedings arising therefrom are hereby quashed. (NIRMALJIT KAUR) 11.02.2011 JUDGE gurpreet