CRM No. M 2241 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 2241 of 2011 Date of decision: 17.05.2011 Baljinder Singh alias Sahbi ... Petitioner Versus State of Punjab .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. P S Ahluwalia, Advocate for the petitioner Ms Neelam, AAG, Punjab for the respondent State Mr. R P Dharia, Advocate for the complainant -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. (Oral) This is a petition under section 482 Cr.P.C for setting aside the order dated 03.08.2009 (P1), whereby, the co-accused of the present petitiones have been acquitted, whereas, the case of the petitioner has been kept pending on the ground that he is proclaimed offender. The facts in short are that the petitioner was implicated in case FIR No. 17 dated 11.02.2008 under Section 302, 148, 149 and 120-B IPC registered at Police Station Lehra. During the course of investigation, the present petitioner was declared a proclaimed offender. However, the CRM No. M 2241 of 2011 2 petitioner subsequently surrendered before the trial Court and moved an application for regular bail, which was rejected by the Court of Additional Sessions Judge, Sangrur, vide order dated 05.08.2008. Thereafter, the petitioner granted regular bail by this Court vide order dated 25.09.2008 passed in CRM M 22318 of 2008. Copy of the order granting bail is placed on record as Annexure P3. The petitioner was regularly appearing before the trial Court. On 04.12.2000, the Trial Court passed the following order:- “PW Harjant Singh is present but supplementary challan against the accused Baljinder Singh who was earlier declared PO has been received by entrustment after committed and is pending for today. So the sessions case No. 19 of 26.11.2008 titled as State v. Baljinder Singh is clubbed with this Sessions case. Since the supplementary challan against the accused Baljinder Singh has been clubbed with this file so the charge is required to be framed afresh. Heard. After hearing the learned Addl. P P for the State, learned defence counsel and going through the documents placed on the file there appears to be a prima facie case punishable under Section 120-B, 302 read with Section 34 IPC. Fresh charge sheet has been framed accordingly to which the accused pleaded not guilty and claimed trial. PW Harjant Singh is bound down for 03.01.2009. Remaining PWs be also summoned for the said date.” Thereafter, the present petitioner was charge sheeted vide order dated 04.12.2008. The petitioner was regularly appearing before the trial Court which is evident from the zimini orders passed on various dates. On 03.08.2009, the trial Court acquitted the co-accused of the petitioner as non of the prosecution witness supported the case. However, the trial Court did CRM No. M 2241 of 2011 3 not acquit the petitioner and consigned the file to the record Room to await the arrest of the petitioner despite the fact that the petitioner was regularly appearing before the trial Court. The said finding that the petitioner could not be arrested was admittedly against the record. Reply has been filed by the State. As per the reply, the facts in the present case, stand admitted. Para 3 of the preliminary submissions of the said reply reads as under:- “3. That lateron Baljinder Singh surrendered before the learned Court on 11.08.2008 and he was formally arrested on the even date and supplementary challan against him was also presented in the learned Court on 08.09.2008. Thereafter, the petitioner was granted bail vide order dated 25.09.2008 passed by the Hon'ble High Court in CRM M 22318 of 2008. The charge was framed by the learned trial Court on 04.12.2008 against all the accused, which was read over to the accused persons including Baljinder Singh (present petitioner). Besides this, there are zimini orders dated 03.01.2009, 29.01.2009, 19.02.2009, 18.05.2009 and 12.06.2009 Annexure P6 (colly) of the learned trial Court vide which the presence of Baljinder Singh, present petitioner were recorded. The learned Court of Shri G C Garg, Addl. Sessions Judge, Sangrur vide judgment dated 03.08.2009 has acquitted Baljit Singh, Jatinder Pal Singh and Tarsem Singh of the charges framed against them. But, in spite of the fact that Baljinder Singh, present petitioner was very much present in learned Trial Court, the learned Trial Court has ordered in respect of Baljinder Singh, that the file be consigned to the record room for the time being and will be requisitioned as and when accused Baljinder Singh is arrested by the police or he surrenders in the CRM No. M 2241 of 2011 4 Court and no comments could be made by the answering respondent on the orders passed by the learned trial Court. In view of the aforesaid admitted fact, it is evident that the case of the petitioner was required to be treated at par with that of other co accused namely Baljinder Singh, Jatinder Pal Singh and Tarsem Singh who have already been acquitted of the charges framed against them. It is admitted that the evidence against the present petitioner is identical. It is also admitted that the present petitioner is required to be treated at par with that of other co accused who have been acquitted vide order dated 03.08.2009. It is also admitted that the case of the present petitioner was ordered to be tried separately on the basis of incorrect fact got noted by the trial Court that the petitioner had not surrendered before the trial Court. Moreover, 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 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 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 :- CRM No. M 2241 of 2011 5 “ 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 CRM No. M 2241 of 2011 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.” CRM No. M 2241 of 2011 7 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. In the present case, it is not the case of the prosecution that there is different evidence qua the present petitioner. The evidence conducted by the prosecution against the co accused is one and the same. 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 the same as in the case of the co-accused. Moreover, it is an admitted position that the case of the petitioner was to be treated at par with that of co-accused who were acquitted and by sheer error, it was ordered to be taken up after his arrest whereas he had already been arrested. In view of the above discussion and facts, the present petition is allowed and the order dated 03.08.2009 (P1) passed by the Additional Sessions Judge, Sangrur, to the extent, vide which, the case of the petitioner was kept pending on the ground that he is proclaimed offender is set aside and he is accordingly acquitted of the charge against him in pursuance to FIR No. 17 dated 11.02.2008 under Section 302, 148, 149 and 120-B IPC registered at Police Station Lehra. (Nirmaljit Kaur) Judge 17.05.2011 mohan