CRR No. 2132 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 2132 of 2009 (O&M) Date of decision: 14. 09.2010 Gurnam Singh and others ........ Petitioner Versus State of Punjab and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Pawan Kumar, Senior Advocate with Mr. Saqib Ali Khan, Advocate for the petitioners Mr. K S Pannu, DAG, Punjab for the respondent State Mr. Gurminder Singh, Advocate for respondent No. 2 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. CRM No. 40885 of 2009 This is an application under section 5 of the Limitation Act for condonation of delay of 284 days in filing the present petition. The only ground raised by learned counsel for the petitioners for seeking condonation of delay is that earlier the petition was filed within time but the petitioners were not in possession of vernacular copies of Annexures annexed with the petition and the registry put the objection on CRR No. 2132 of 2009 (O&M) 2 the same and for collecting the document, delay of 284 days occurred which was neither deliberate nor intentional and the same was beyond the control of the petitioners. Reliance is placed on the judgement rendered by Delhi High Court in the case of M/s Kodak India Pvt. Limited v. State and others reported as 2009 (5) RCR (criminal) 911. Learned counsel for the respondents has vehemently opposed the application for condonation of delay and has stated that in fact, there was a delay of 335 days which is totally unexplained in the ground taken in the application for condonation of delay. It is specifically stated in para 2 of the reply to application for condonation of delay that the petitioners have taken a totally false and misconceived ground that the vernacular copies of the annexures were not in possession of the petitioners especially when the petitioners having attached the true translated copies along with Criminal Revision Petition bearing No. 2309 of 2006, cannot turn around and say that the translation was done without the vernacular copies of the same. Further more, the petitioners have neither stated any date on which copies of the vernaculars were applied by them or the date on which such copies were made available to them. The entire application is vague and thus, is liable to be dismissed as the inordinate delay of 335 days has not been explained at all. Heard on the application. The reason submitted by the learned counsel for the petitioners that vernacular copies were not available, is not acceptable. It is an admitted position that the petitioners had earlier also filed a CRR No. 2309 of 2006 CRR No. 2132 of 2009 (O&M) 3 and certainly all the documents were available with them even at that stage. Thus, the ground taken for delay is not substantiated from the facts on record. No plausible explanation has been offered. Moreover, the trial Court has meanwhile proceeded further after framing of the charge. The statement of Charan Singh has been recorded as PW1 and statement of Jarnail Singh has also been recorded by the trial Court on 20.05.2009. After the examination-in-chief of Charan Singh and Jarnail Singh, the trial Court earlier fixed the case for cross examination of these witnesses on 20.05.2009 but the same is being adjourned from time to time on one pretext or the other. The reason for the delay is vague and unacceptable. Accordingly, there is no justification for the delay. The application for condonation of delay is accordingly dismissed. However, lest the same results in any injustice, the matter is also being examined on merits. Main case Brief facts of the case are that the alleged occurrence took place on 11.10.2003 at Nanaksar Ashram of Siar, District Ludhiana between two groups. Thereafter, FIR No. 159 dated 11.10.2003 under Section 307, 379, 382, 323, 427, 148, 149 of Indian Penal Code and under Sections 25, 27, 54, 59 of Arms Act, was registered at Police Station Payal, District Ludhiana on the statement of Avtar Singh Fauzi from the petitioners' side. The matter was investigated and a cross version was also recorded in the said FIR on the statement made by Jeet Singh son of Nachhattar Singh against the petitioners. Along with the statements of Jeet Singh, statement of Jagtar CRR No. 2132 of 2009 (O&M) 4 Singh son of Gurmail Singh was also recorded on the same day i.e 13.10.2003 by the Police under Section 161 of the Cr.P.C. The aforesaid Jeet Singh later expired after 10-15 days of the alleged occurrence being in the hospital and it was then that the statements of other witnesses were recorded on 25.10.2003. In the cross case which was registered in FIR No. 159 under Sections 302, 307, 323/34 of Indian Penal Code and 25/27 of the Arms Act, 3 accused were found to be real accused i.e. Gurcharan Singh Mistry, Granthi Gurcharan Singh and Avtar Singh Fauzi, and accordingly against these three persons challan was prepared. However, it was directed that a challan under Section 336 IPC be presented against Manmohan Singh. After the presentation of the challan, Charan Singh made a statement as PW1 on 10.06.2005 before the learned Additional District and Sessions Judge, Ludhiana. He named all the petitioners being an accused in cross case including Harnek Singh son of Saudagar Singh who is an NRI, resident of Canada. He also moved an application under section 319 of the Code of Criminal Procedure for summoning the petitioners as additional accused. The aforesaid application was allowed by the learned Additional District and Sessions Judge, Ludhiana vide order dated 22.09.2006. Accordingly, the present petitioners and Harnek Singh NRI, resident of Canada were summoned in a cross case under section 302 IPC. The said order was challenged by the petitioners including Harnek Singh before this Hon'ble Court vide Criminal Revision No. 2309 of 2006 titled as Harnek Singh and others vs. State of Punjab. The aforesaid revision petition was dismissed against all other petitioners except petitioner No. 1 - Harnek Singh who is an NRI and resident of CRR No. 2132 of 2009 (O&M) 5 Canada. The revision petition against Harnek Singh was allowed by this Hon'ble Court vide order dated 19.09.2007 and the summoning order dated 22.09.2006 were quashed. After the dismissal of the revision petition against the summoning order qua the present petitioners, the learned Trial Court framed the charges vide order dated 09.08.2008 under Sections 302 read with Section 149 IPC against the present petitioners and other co- accused. The aforesaid order of framing of charges dated 09.08.2008 passed by the learned Trial Court has now been impugned by the petitioners in the present revision petition. The petitioners in the revision petition are emphasising that they have been falsely implicated and there is no material against them against which the learned trial Court has framed the charges and it was further stated by them that it is the complainant party who attacked on them. While challenging the impugned order vide which the charges have been framed against the present petitioners, the learned counsel for the petitioners contended that the statement of Jeet Singh is relevant. Jeet Singh had only named Gurcharan Singh Granthi. The aforesaid Jeet Singh later expired after about 10-15 days being in the hospital. Learned counsel for the petitioners stressed the point that the allegation of firing was not attributed to the petitioners. It was further contended that the possession of the petitioners' side on the property stood fully established in view of the civil Court passing an order of interim injunction as against the sons of Baba Mihan Singh, namely, Mann Singh, Sewa Singh and Harcharan Singh. The said order was passed by the Civil Judge, Junior Division, Ludhiana on 15.12.2003. This clearly corroborates the original version of the FIR to the CRR No. 2132 of 2009 (O&M) 6 effect that the petitioner were in possession of the Dera and Mann Singh, Sewa Singh and Harcharan Singh were trying to dispossess while being fully armed along with a number of their supporters. The impugned order dated 09.08.2008 is bad in law as the petitioners have been charged for being members of unlawful assembly, under section 148 IPC and that it was worthwhile to mention that the FIR from the petitioners' side shows the occurrence at the premises, where the petitioners have the affinity, namely, Nanksar Ashram and the accused persons as mentioned in the FIR had trespassed into the same and caused injuries. Further, the petitioners have been charged under Section 302 IPC with the aid of Section 149 IPC, whereas, a perusal of the statement of Jeet Singh shows that the petitioners are nowhere named in the FIR. The order framing charge dated 09.08.2008 is cryptic and non-speaking and shows non-application of mind by the trial court. As such, the impugned charge sheet is liable to be quashed. It was further argued that the perusal of the cross version of Jeet Singh clearly shows that the petitioners have no role whatsoever and as such the framing of charge against the petitioners is based on conjectures and surmises. It was further submitted that the office of the Director General of Police after taking into consideration the detailed inquiry conducted by the crime branch had recommended that there were only three accused i.e. Gurcharan Singh Mistry, Granthi Gurcharan Singh and Avtar Sing Fauzi who were the real accused while a separate challan was recommended under section 336 against Mammohan Singh. Thus, during the police investigation in any case, the present petitioners were found innocent except Gurcharan Singh Mistry, Granthi Gurcharan Singh and Avtar Sing Fauzi. CRR No. 2132 of 2009 (O&M) 7 Reliance is placed on the judgement of the Hon'ble Supreme Court rendered in the case of Rukmini Narvekar v. Vijaya Satardekar and others reported as 2008(4) RCR (Criminal) 924 to state that as per section 227 of the Code of Criminal Procedure, which deals with trial before a Court of Sessions, if the accused were able to produce any reliable material at the stage of taking cognisance of framing of charge, it is unjust to suggest that no such material should be looked into by the Court at that stage as also on the judgement rendered by the Hon'ble the Supreme Court in the case of Harishchandra Prasad Mani and others v. State of Jharkhand and another reported as 2007(1) RCR (Criminal) 852 to state that cognisance cannot be taken merely on the basis of suspicion. Learned counsel for respondent No. 2, however, vehemently opposed the present petition and submitted as under:- Firstly, the place of occurrence is the Nanksar Ashram in Village Siar, District Ludhiana comprising in Khewat Khatauni No. 27/27 and khasra No. 101/26, measuring 14 kanal 14 marlas of land. From the petitioners' side, a civil suit was also filed with respect to the said Ashram seeking decree of permanent injunction against the sons of Baba Mihan Singh from taking the forcible possession of the same. The Civil Judge (Junior Division) Ludhiana vide order dated 15.12.2003 declined the ad- interim injunction with respect to the property. The operative part of the order reads as under:- “However, the application for grant of an ad-interim injunction with respect to the property comprising in khewat khatauni number 27/27 and khasra No. 101/26 is declined.” CRR No. 2132 of 2009 (O&M) 8 Whereas, the present FIR was registered on 11.10.2003. Thus, the stand that the respondents were trespasser is wrong. Secondly, the present petitioners were summoned under section 319 of the Code of Criminal Procedure on the basis of evidence and statement of Charan Singh vide order dated 22.09.2006 passed by the Additional Sessions Judge, Ludhiana. The aforesaid revision petition was dismissed against all the petitioners except petitioner No. 1 Harnek Singh who is an NRI and is a resident of Canada. Thus, the present charges are a natural outcome of the same. Since, the revision petition against the summoning order dated 22.09.2006 had already been dismissed, the present petition against the framing of charges was nothing but an abuse of process of law and relied on the judgement of the Apex Court rendered in the cases of Sanghi Brothers (Indore) Pvt. Ltd v. Sanjay Choudhary and others reported as 2008(4) CRC (Criminal) 640, Ashwani Kumar v. State of Haryana reported as 2008(4) CRC (Criminal) 272, Lal Suraj alias Suraj Singh and another v. State of Jharkhand reported as (2009) 2 SCC 696, State of Himachal Pradesh v. Krishan Lal Pardhan and others reported as (1987) 2 SCC 17 and Radhey Shyam v. Kunj Behari and others reported as 1989 Supp (2) Supreme Court Cases 572. After hearing learned counsel for the parties, I do not find any merit in the arguments raised by the learned counsel for the petitioners. The main thrust of the arguments raised by the learned counsel for the petitioner is that Jeet Singh did not name any of the petitioners except Granthi Gurcharan Singh. Subsequently, Jeet Singh died on account of fire arm injury received by him. The learned Counsel, thereafter, argued CRR No. 2132 of 2009 (O&M) 9 that Section 302 of Indian Penal Code cannot be framed against the present petitioners who were not even named by Jeet Singh,the deceased in his statement before he died. There is no merit in the argument raised by the learned counsel for the petitioner. Jeet Singh received gun shot injury. His Statement naming only Granthi Gurcharan Singh was recorded on 13.10.2003 after he was fit to make the same. The statement of other injured witness, namely, Jagtar Singh son of Gurmail Singh was also recorded on 13.10.2003 itself, where specific allegations were made against the accused persons including the petitioners. Jeet Singh died on 25.10.2003. Thereafter, statement of Malkiat Singh son of Uttam Singh was recorded on 25.10.2003 on the death of Jeet Singh and statement of Jarnail Singh son of Bagga Singh and Achhar Dev son of Bir Bal naming the present petitioners were recorded on 28.10.2003 by the Police. Thus, the statement of Charan Singh before the Court is corroborated even by Jagtar Singh son of Gurmail Singh as early as on 13.10.2003. Therefore, it cannot be said that they were enroped by the eye witnesses as an after thought. This was the stand even on 13.10.2003. The day statement of Jeet Singh was recorded, on the same day, the statement of Jagtar Singh son of Gurmail Singh was also recorded, naming all the present petitioners. Thus, it is not an after-thought. The petitioners were attributed clear and categoric role in the occurrence. Thereafter, Charan Singh appeared as PW and corroborated the version of Jagtar Singh. It was on the basis of this that the accused petitioners were summoned under section 319 of the Code of Criminal Procedure by the trial court vide order dated 22.09.2006 passed by the Additional Sessions Judge, CRR No. 2132 of 2009 (O&M) 10 Ludhiana as additional accused. The petitioners challenged the order of summoning under section 319 of the Code of Criminal Procedure but the said criminal revision was dismissed. The order of dismissal has since become final. It is apparent that the Hon'ble High Court did not find any merit in the challenge to their summoning as additional accused to face the trial. Faced with the situation, learned counsel for the petitioners submitted that only the evidence and the statement made before the Court are taken into consideration while summoning an accused under section 319 of the Code of Criminal Procedure as additional accused, whereas, the entire record as well as the statements made before the investigating agency are before the trial Court while framing charge. Thus, statement of Jeet Singh is relevant and should have been taken into consideration while framing charges. The said arguments also have no merit in view of the settled proposition of law that all that is required at the stage of framing of charges is to see whether a prima facie case regarding the commission of certain offence is made out or not. The question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in the case. Whereas, under Section 319 of the Code of Criminal Procedure, the Court must record a finding that the evidence before it, is likely to result in conviction. In the case of Radhey Shyam v. Kunj Behari and others (supra), Hon'ble the Supreme Court held that the High Court was not justified in going into meticulous consideration of evidence and appreciate documents and statements filed by the police at the stage of framing of charge and went CRR No. 2132 of 2009 (O&M) 11 on to held in para 9 that:- “9. The High Court has also deemed it necessary to quash the charge against respondents 1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that respondents 1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar v. Ramesh Singh. We find that the High Court's conclusion about the inadequacy of the evidence against respondents 1 to 3, besides being a premature assessment of evidence, is also attributable to the wrong premises on which the High court's reasoning is based.” Whereas, the test applied for summoning an accused under section 319 of the Code of Criminal Procedure is more strict and the same is required to be exercised very sparingly. The trial Court is required to form an opinion on the basis of evidence before it that a prima facie case has been made out against such person and record a reasonable prospect of conviction of the accused. In fact, it is a well settled proposition of law that application under Section 319 of the Code of Criminal Procedure is to be resorted to only in case when there appears to be a chance of conviction whereas, strong suspicion is sufficient to frame charge. At the stage of framing of charge, there is no necessity of formulating the opinion about prospect of conviction. The said distinction has been clearly laid down by Hon'ble Supreme Court in the case of Lal Suraj alias Suraj Singh and another v. State of Jharkhand reported as (2009)2 SCC 696, which reads as under:- “16. The approach of the learned Sessions Judge was CRR No. 2132 of 2009 (O&M) 12 wholly incorrect. The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.” In Sanghi Brothers (Indore) Pvt. Ltd v. Sanjay Choudhary and others reported as 2008(4) CRC (Criminal) 640 in para 10, it is held:- ”10. After analysing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case is to be applied.” 11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.” CRR No. 2132 of 2009 (O&M) 13 In the present case, the order summoning the petitioners under Section 319 of the Code of Criminal Procedure is already upheld by the High Court while dismissing the revision petition. Thus, at the time of framing of charge, the trial court not only had the statement of Jeet Singh but also had the benefit of the statements of Charan Singh PW1 and Jagtar Singh on the basis of which the petitioners were summoned under section 319 of the Code of Criminal Procedure. In any case, the argument of the learned counsel for the petitioners has been answered by the Hon'ble Apex Court in the case Dilip Premnarayan Tiwari and another vs. State of Maharashtra reported as (2010) 1 SCC 775. In the fact of that case, one Sunil was not named in the dying declaration. However, he was named subsequently by the eye witness only. Still he was convicted. The conviction was upheld by the Supreme Court by holding as under:- “50. Ordinarily, we would have sent back the matter. However, we cannot ignore the fact that all the three accused persons are facing death sentence awarded by the Trial Court and confirmed by the High Court. We would not, therefore, increase the agonies of the accused persons by sending back the matter to the High Court; in stead, since accused No.1 and 3 did not have opportunity to cross-examine the witnesses about the document, we will not consider the documents against accused Nos. 1 and 3. Insofar as accused No.2, Sunil is concerned, it is true that his name does not appear in the said dying declaration but in our considered opinion that would be of no consequence for the simple reason that the evidence of the eye-witness completely fixes the criminal liability on the part of accused CRR No. 2132 of 2009 (O&M) 14 No.2, Sunil. Therefore, even if the said dying declaration is somewhat helpful to Sunil, that by itself will not wipe out the evidence of the two eye-witnesses whose evidence was credible as held by the Trial Court as well as the Appellate Court. Thus in our view, the conviction of all the three appellants before us as ordered by the Sessions Judge and confirmed by the High court is correct and we confirm the same.” Facts in the present case are somewhat similar. Jeet Singh deceased did not name the present petitioners but subsequently, they have been named by the eye witnesses. Thus, to ignore the statements of the eye witnesses at this stage, during the time of framing of charge especially when they have been summoned as additional accused under Section 319 of the Code of Criminal Procedure, would amount to a diametrically opposite conclusion on the set of almost same material, if not more. Moreover, the petitioners have been charged for offence under Section 302 of Indian Penal Code with the aid of Section 149 of Indian Penal Code. Hence, there is no infirmity in the order framing charges. Accordingly, the present petition is dismissed being devoid of merit. (Nirmaljit Kaur) Judge September 14, 2010 mohan