Crl. Misc. No. M- 11132 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 11132 of 2009 Date of decision: 4.5.2009 Joga Singh ….. Petitioner Versus State of Punjab ….. Respondent Present: Mr. Deepak Arora, Advocate for the petitioner. **** S.S. SARON, J. This petition under Section 482 of the Code of Criminal Procedure (“CrPC” – for short) has been filed seeking quashing of the order dated 14.3.2009 (Annexure P4) passed by the learned Special Judge, Jalandhar, whereby the application dated 14.3.2009 (Annexure P3) filed by the petitioner under Section 311 CrPC for recalling and re-examination of Sh. Opinderjit Singh Ghuman, SP (Operations) as a prosecution witness, has been declined. The petitioner is the complainant in case FIR No.58 dated 6.4.2005 (Annexure P1) registered at Police Station Nurmahal, Distt. Jalandhar for the offences under Sections 420, 170, 171, 343, 347, 368, 120-B Indian Penal Code (“IPC” – for short) and Sections 7, 13(2) of Prevention of Corruption Act, 1988. It has been alleged in the complaint by the complainant/petitioner that on 12.3.2005 at about 5.30 a.m., he was picked up by SI/SHO Manjit Singh of Police Station Nurmahal from his house in village Mandi, Tehsil Phillaur, Distt. Jalandhar on the ground that some secret information was received against him from Pakistan and on Crl. Misc. No. M- 11132 of 2009 -2- that account he was ordered to be arrested by SSP, Jalandhar. At the time of arrest of the petitioner by SI/SHO, Manjit Singh, he was accompanied by Sinder Singh - accused. The complainant/petitioner was taken to the house of Rajinder Singh of village Chak Majara on the ground that he was also to be arrested in the said case. However, Rajinder Singh was not present in his house and he could not be arrested. Thereafter, the complainant/petitioner was taken to Police Station, Nurmahal and was kept there for about three hours in the office of the SHO. It is alleged by the complainant/petitioner that during that period he was maltreated by SI/SHO Manjit Singh and Sinder Singh – accused. He was also physically tortured by them. At that time, SI/SHO Manjit Singh demanded a sum of Rs.5 lacs from the complainant/petitioner by way of illegal gratification, failing which, he was threatened to be implicated in some serious case relating to recovery of poppyhusk. At that time, SI/SHO Manjit Singh also told the complainant/petitioner that out of the aforesaid amount of Rs.5 lacs, a sum of Rs.2 lacs was to be given to SSP, Jalandhar. While the complainant/petitioner was in illegal detention of SI/SHO Manjit Singh and Sinder Singh aforesaid at the Police Station, Amarjit Singh PW of village Sodiyan who is a relation of the complainant/petitioner also came there to meet him. Amarjit Singh was initially not allowed to enter the Police Station, but later, he was called to the ‘chaubara’ and he was told that in case he wanted to get the complainant/petitioner released, he should pay a sum of Rs.5 lacs, failing which, he threatened to implicate the complainant/petitioner in a false case. At that time, Amarjit Singh told the accused SI/SHO, Manjit Singh and others that he could not immediately arrange the necessary money. The complainant/petitioner was taken to the house of SI/SHO Manjit Singh and detained there for three nights and four days. Then on 14.3.2005, SI/SHO Manjit Singh sent Sinder Singh-accused accompanied by two gunmen namely Kuldip Singh and Amarjit Rai to the house of Jeewan Kumar in village Chhokran, Tehsil and Distt. Jalandhar and got the landed property of the Crl. Misc. No. M- 11132 of 2009 -3- complainant/petitioner mortgaged with him for a sum of Rs.5 lacs. Thereupon, Jeewan Kumar issued a cheque for an amount of Rs.4.59 lakhs drawn on the Oriental Bank of Commerce in the name of the complainant and gave him cash amount of Rs.49,000/-. On the next day i.e. on 15.3.2005 at about 11 am, the accused SI/SHO Manjit Singh and Sinder Singh took the complainant/petitioner and his relation Amarjit Singh to the bank and got the cheque of Rs.4.59 lakhs encashed. The cheque amount was retained by SI/SHO Manjit Singh. Thereafter, the complainant/petitioner was brought to the house of SI/ SHO Manjit Singh and was released from his illegal custody at about 3.30 p.m. Subsequently, the complainant/petitioner moved an application to Sh. Paramjit Singh then DIG, Jalandhar Range about his illegal detention at Police Station Nurmahal as also regarding a sum of Rs.5 lacs being extracted from him after getting his property mortgaged with Jeewan Kumar aforesaid. It was submitted in the said application that Surinder Singh aforesaid was a fraud and claimed himself to be a CID Inspector which actually he was not and in fact he was also involved in a rape case etc. In the said application, he also claimed to be a NRI residing in Greece for the last 20-22 years having visited India a few days earlier to his illegal detention by the police. On the basis of the said application, the statement of the complainant-petitioner was recorded by the DIG and vide letter dated 5.4.2005 sent to Sh. Opinderjit Singh Ghuman SP (Operations), Jalandhar, registration of the case was ordered at Police Station Nurmahal against SI/SHO Manjit Singh and others who were involved in the case. On the basis of the order passed by DIG, Jalandhar, the FIR (Annexure P1) was registered against the accused SI/SHO Manjit Singh of Police Station Nurmahal. After registration of FIR, investigations were initially conducted by Sh. Opinderjit Singh Ghuman, SP (Operations). In the investigations, accused SI/SHO Manjit Singh and Surinder Singh, besides Kuldeep Chand and Amarjit Rai were found involved in the commission of the crime. The competent authority i.e. SSP, Jalandhar granted necessary sanction for prosecution of SI/SHO Manjit Singh vide Crl. Misc. No. M- 11132 of 2009 -4- his letter dated 21.8.2006 (Annexure P2). Charge report (challan) in the case was filed. During the course of trial Sh. Opinderjit Singh Ghuman, SP (Operations) who was cited as a witness was given up by the prosecution. The petitioner when he learnt about this filed an application dated 14.3.2009 (Annexure P3) for recalling Sh. Opinderjit Singh Ghuman, SP (Operations), Jalandhar. It is stated in the present petition that it was mentioned in the application (Annexure P3) that the complainant had earlier made an application dated 21.1.2006 addressed to the Chief Minister, Punjab with copies to the DGP, Punjab and Director Vigilance Bureau regarding the aforesaid amount of Rs.5 lacs being taken from the complainant and that the testimony of Sh. Opinderjit Singh Ghuman SP (Operations) was very much necessary in the trial of the case. As such, he be examined and appear as a witness for the prosecution in the interest of justice. The aforesaid application (Annexure P3) made by the petitioner has been declined by the learned Additional Sessions Judge vide his impugned order dated 14.3.2009 (Annexure P4). Aggrieved against the same the complainant/petitioner has filed the present petition. Learned counsel for the petitioner has submitted that the entire facts and circumstances have not been appreciated by the learned trial Court while dismissing the application (Annexure P3) of the petitioner for the recall and examination of Sh. Opinderjit Singh Ghuman SP (Operations) as a witness. It is submitted that initial investigation in the case was conducted by Sh. Opinderjit Singh Ghuman SP (Operations) and during the course of investigation, the complainant/petitioner was taken by Sh. Opinderjit Singh Ghuman SP to the office of DIG for some compromise. At that time, Sh. Opinderjit Singh Ghuman SP (Operations) was also carrying a sum of Rs.5 lacs with him. The complainant/petitioner, however, was not ready for any compromise and no compromise could be reached at and the amount of Rs. 5 lacs was taken back by Sh. Opinderjit Singh Ghuman SP (Operations). Subsequently, the complainant/petitioner made a detailed complaint dated 21.1.2006 (Annexure P5) Crl. Misc. No. M- 11132 of 2009 -5- addressed to the Chief Minister with copies endorsed to DGP, Punjab and Director General Vigilance Bureau. The said application (Annexure P5) is part of the judicial record. Therefore, it is submitted that the examination of Sh. Opinderjit Singh Ghuman SP (Operations) is essential to ascertain as to from whom he received the aforesaid amount of Rs.5 lacs for payment to the complainant in connection with the compromise and what happened to the said amount upon the compromise not being effected. It is submitted that merely because Sh. Opinderjit Singh Ghuman was earlier inadvertently given up by the prosecution was no ground to disallow the application (Annexure P3) of the complaint under Section 311 CrPC for his recall and examination in the case, which was necessary to bring all the relevant facts and circumstances on record for a just and fair decision in the case. After giving my thoughtful consideration to the matter, I find no merit in the contentions of the learned counsel for the petitioner. It may be noticed that from a reading of the impugned order dated 14.3.2009 (Annexure P4), it transpires that earlier the prosecution had filed an application on 13.2.2009 under Section 311 CrPC which was withdrawn by the learned Additional Public Prosecutor. Instead another application (Annexure P3) under Section 311 CrPC was filed by the complainant for recalling Sh. Opinderjit Singh Ghuman SP (Operations) being of the view that his statement was necessary in the present proceedings as the complainant/petitioner in his complaint dated 21.1.2006 (Annexure P5) had alleged that on 6.4.2005 he was being forced to enter into a compromise with the accused Manjit Singh by two police officials in civil dress and that they had given a sum of Rs.5 lacs to Sh. Opinderjit Singh Ghuman SP (Operations). At about 4 p.m. on the same day Sh. Opinderjit Singh Ghuman SP (Operations) took the complainant to the office of DIG, Jalandhar along with the amount of Rs.5 lacs after putting it in two black colour bags. The DIG counted the money and returned to it SP (Operations). However, a perusal of the application (Annexure P3) that has been filed for summoning Sh. Opinderjit Singh Crl. Misc. No. M- 11132 of 2009 -6- Ghuman SP (Operations) as a witness shows that it is absolutely unclear as to what the petitioner wants. It is recorded therein as follows:- “ That as per the complaint moved by the complainant Joga Singh to CM Punjab and copy to DGP Punjab and Directorate of Vigilance he has mentioned in his application received amount Rs.5 lacs handed over to SP Operation Opinderjit Singh Ghuman. There is no recovery in the present case as such evidence is material just for decision of this case.” The above averment to say the least, is vague and unclear and nor has the learned counsel for the petitioner been able to explain as to what is sought to be conveyed. The learned Special Judge, Jalandhar considered the application (Annexure P3) and in his impugned order dated 14.3.2009 (Annexure P4). It was observed by him as follows:- “I have heard learned Additional PP for the State to find that application to be altogether misconceived, misdirected, highly belated and nothing more than beating about the bush. SP Opinderjit Singh Ghuman is Investigating Officer of the case and not an accused facing trial before this Court. If one is to go by contents of the application dated 21.1.2006, Joga Singh intends to accuse SP Opinderjit Singh Ghuman of having retained Rs.5 lakhs which is not the case of the prosecution as per the challan. Otherwise also instant case is nearly four years old and when Joga Singh was in the witness box he made no reference to this application. There is no trace in the challan of Crl. Misc. No. M- 11132 of 2009 -7- the story that amount of Rs.5 lakhs was offered to the complainant for settling the matter with the accused much less of Opinderjit Singh Ghuman having retained that purse of Rs.5 lakhs. I am unable to comprehend intention of the complainant in filing this application and also unable to see as to how the prosecution intends to prove contents of application dated 21.1.2006 at this stage. The application is thus dismissed being devoid of all merits.” From the above, it shows that the petitioner intends to accuse SP Opinderjit Singh Ghuman who is the investigating officer in the case of having retained Rs.5 lacs which is not the case of the prosecution. Besides, the petitioner wants to prove the contents of the application dated 21.1.2006 (Annexure P5). It is not shown by the learned counsel for the petitioner whether the application dated 21.1.2006 (Annexure P5) is a part of the challan filed by the police or one of the documents which are relied upon by the prosecution. The learned Additional Public Prosecutor had given up SP Opinderjit Singh Ghuman during the trial of the case. Thereafter, an application was filed on 13.2.2009 by the prosecution under Section 311 CrPC which was also withdrawn by the learned Additional Public Prosecutor by making a separate statement. Therefore, at present there is no application by the prosecution for summoning SP Opinderjit Singh Ghuman for the purpose of his examination. Learned counsel for the petitioner has submitted that the examination of Sh. Opinderjit Singh Ghuman SP (Operation) is necessary to prove the investigations earlier carried out. If it is so, the same in any case is liable be considered in case the State files an application for examining him as a prosecution witness. In any case, the said intention does not appear in the application dated 14.3.2009 (Annexure P3) Crl. Misc. No. M- 11132 of 2009 -8- that was filed by the petitioner before the learned trial Court. In case the petitioner wants to prove the application dated 21.1.2006 (Annexure P5), as already noticed, it is not shown by the petitioner as to whether the said application is one of the documents which has been relied upon by the prosecution for proving its charges and in case it is not so whether an application has been filed for proving it by leading additional evidence. Therefore, it cannot be said that there is any infirmity in the order dated 14.3.2009 (Annexure P4) passed by the learned trial Court in declining the application (Annexure P3) of the petitioner for summoning Sh. Opinderjit Singh Ghuman SP (Operations) for his examination. In the circumstances, in case Sh. Opinderjit Singh Ghuman, SP (Operation) is to be summoned as an additional accused that would more appropriately be considered in case an application is filed by the State. There is no merit in this petition and the same is accordingly dismissed. (S.S. SARON) JUDGE May 4, 2009 amit