Crl. Misc. No.M-2934 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-2934 of 2011 Date of Decision: 28.04.2011 Kulwant Singh ....Petitioner Versus State of Punjab and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Vivek K. Thakur, Advocate for the petitioner. Mr. J.S. Brar, A.A.G., Punjab for the respondent-State. ***** 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 FIR No.68 dated 10.06.2002 under Sections 307/323/324/447/511/506/148 and 149 IPC registered at Police Station Bilga, District Jalandhar and subsequent proceedings arising out of the same on the ground that co-accused of the petitioner have already been acquitted by the trial Court as the prosecution witnesses have not supported the prosecution version and now the matter has been compromised. The FIR was registered against the present petitioner. The petitioner left the Country on 15.01.2004. He was declared a proclaimed offender. It is contended by learned counsel for the petitioner that the petitioner was unable to come India as he lost his passport. Meanwhile, he Crl. Misc. No.M-2934 of 2011 2 has applied for a fresh passport. The enquiry regarding his citizenship and verification is pending with the police officials. It is further stated that other 24 co-accused of the petitioner who faced trial have been acquitted by the trial Court as the prosecution witnesses did not support the prosecution version and they were declared hostile. In spite of their lengthy and searching cross examination, nothing came on record against the co-accused. Ultimately, co-accused of the petitioner were acquitted by the Additional Sessions Judge, Jalandhar vide his order dated 19.01.2008, which is placed on record as Annexure P-3. Moreover, the mother of the petitioner has entered into a compromise with the complainant party. The evidence against the present petitioner is identical. The question therefore arises is whether the proceedings can be quashed qua the petitioner who is a declared proclaimed offender. The said issue came up for hearing before a Division Bench of this Court in Crl. Appeal No.D-638-DB of 2007. The Division Bench after serious consideration held that “inherent powers can be exercised when this Court finds that the innocent accused, who had absconded would simply face the empty formality of trial with the very same unbelievable and untrustworthy evidence, which would ultimately lead to their acquittal.” The detailed discussion in paras 22, 23 and 24 of the said judgment reads as under :- “Quashing of pending proceedings against other accused:- 22. While disposing of these two appeals, we are very much concerned about the absconding village rustic accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal, who had successfully evaded the dragnet of the police. The Investigating agency has put up a case implanting eye witnesses as against all the accused. Both the eye witnesses projected by the prosecution had not passed the test of trustworthiness. Their own showing would go to establish without any Crl. Misc. No.M-2934 of 2011 3 pale of doubt that they could not have witnessed the occurrence. The other materials produced by the prosecution also did not advance the case of the prosecution any further. The above facts and circumstances have persuaded us to come to a definite conclusion that the accused in this case were not the perpetrators of crime of murder as alleged by the prosecution. The same set of materials would be produced before the Sessions Court on production of the remaining three accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal. After all the poor innocent labourers had migrated to other places to eke out their livelihood. The appellants herein had in fact suffered imprisonment for such a long time leaving behind their kith and kin, who might have been in dire need of financial support and help from them. Such an unpleasant situation shall not be created for the other three accused against whom also there is no material on record to fasten them with the charge of murder. We seriously pondered over rendering judicial succour to those faceless and voiceless accused who had taken to heals and hidden themselves apprehending the wrath of criminal proceedings for the heinous crime of murder. We are convinced that our judicial arm is not so crippled as to betray the vague hope of the hopeless. 23. We are conscious of the fact situation that those three accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal had absconded and were declared as proclaimed offenders. They had not faced the trial, but when we find that no case could be made out as against them also with the very same rickety materials, those accused also will have to be relieved of the impending pain of facing the prosecution for murder. Section 482 of the Code of Criminal Procedure reads as follows:- “Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to Crl. Misc. No.M-2934 of 2011 4 make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 24. The above provisions recognize the inherent powers of the Court to do real and substantial justice, preventing the abuse of the process of the Court. The statutory recognition of the inherent jurisdiction of the criminal Court indicates that there is a power for the criminal Courts to make such an order as may be necessary to meet the ends of justice. We are conscious of the fact that the powers under Section 482 of the Code of Criminal Procedure are to be exercised very sparingly and in exceptional cases where abuse of the process of the Court would result in serious miscarriage of justice. The inherent powers of the Court should not be exercised to stifle legitimate prosecution. But at any rate the settled position is that this Court has the jurisdiction to quash the entire criminal proceedings to prevent the abuse of the process of the Court in order to secure the ends of justice. In our considered view the same inherent powers can be exercised when this Court finds that the innocent accused, who had absconded would simply face the empty formality of trial with the very same unbelievable and untrustworthy evidence, which would ultimately lead to their acquittal. Bringing the absconding accused to face the trial in this case in the above facts and circumstances would amount to abuse of the process of the Court. To secure the ends of justice, we hereby quash the entire proceedings as against the absconding accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal pending before Judicial Magistrate Ist Class,Bathinda/Sessions Judge, Bathinda, as no useful purpose will be served even if they are procured and ordered to face the trial in this case.” The facts of the present case are somewhat similar. The co-accused of the petitioner have already been acquitted. While acquitting Crl. Misc. No.M-2934 of 2011 5 the co-accused of the petitioner, the Additional Sessions Judge (Ad hoc), Jalandhar vide his order dated 19.01.2008 held in paras 4 and 5 as under :- “ 4. The prosecution in order to substantiate the charge against the accused has examined PW1 Santa Singh, PW2 Jit Kaur, PW3 Ram Pal and PW4 Devi Lal. 5.All the above said PWs did not lend support to the prosecution version and they were got declared hostile by the Additional Public Prosecutor and were confronted with the statements made before the police but nothing incriminating could be extracted by the Additional Public Prosecutor in spite of their lengthy and searching cross-examination,Santa Singh and Devi Lal even went to the extent that the accused present in the Court are not the persons who inflicted injuries to them. Faced with this situation the Additional Public Prosecutor has no other option except to make the statement that since the complainant and other eye witnesses have not supported the prosecution version and have resiled from their statements, no further improvement is possible by examining other witnesses. As such, he closed the prosecution evidence since there was no incriminating evidence against the accused, recording their statements under Section 313 Cr.P.C was dispensed with nor they were called upon to enter into defence. Since it is a case of no evidence, the accused are given the benefit of doubt and are acquitted to the charge. File be consigned.” Moreover, the matter has been compromised. There is no chance of any other evidence against them. In fact, it is not the case of the prosecution that there is any other evidence besides the evidence that has already been led in the case of the co-accused. In case, the petitioner is put to trial, the evidence against him, would also be the same, on the basis Crl. Misc. No.M-2934 of 2011 6 of which, the other co-accused have already been acquitted. Even otherwise, 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, the FIR was quashed as the co-accused, who were arrested stood acquitted by the trial Court. It was held in the said case that where the evidence is same, continuation of proceedings in the case of the co-accused 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 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) Crl. Misc. No.M-2934 of 2011 7 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 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 Crl. Misc. No.M-2934 of 2011 8 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 too, the co-accused had been acquitted, the Court, therefore, came to the conclusion that the petitioner was not required to undergo the ordeal of a trial, particularly, when the co-accused was acquitted. It is not the case of the prosecution that there is any other evidence than what was produced in the case of 24 other co-accused who were acquitted. The co-accused were acquitted as all the witnesses had resiled and were declared hostile. No useful purpose will be served by allowing the prosecution to proceed against the petitioner on the same set of facts and evidence. In view of the above discussion and facts, the present petition is allowed and FIR No.68 dated 10.06.2002 under Sections 307/323/324/447/511/506/148 and 149 IPC registered at Police Station Bilga, District Jalandhar and subsequent proceedings arising out of the same are hereby quashed qua the petitioner. (NIRMALJIT KAUR) 28.04.2011 JUDGE gurpreet