IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-23121 of 2009 Date of decision : November 25, 2009 Surinder Kumar ....Petitioner versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vishal Sharma, Advocate, for the petitioner Mr. Gaurav Garg Dhuriwala, AAG Punjab L.N. Mittal, J. (Oral) Surinder Kumar has filed this petition under section 482 of Code of Criminal Procedure (in short, Cr.P.C. ) for quashing of FIR No. 125 dated 3.10.2000, under sections 279, 304-A IPC, Police Station Lambi, District Muktsar (Annexure P/1), order dated 28.4.2009 (Annexure P/4) and consequent charge sheet of even date (Annexure P/5). According to the allegations in the FIR lodged by Gulshan Kumar, on 3.10.2000, the complainant and his nephew Rajinder Kumar were travelling in bus No. PB-05F-8888 being driven by Rajesh Kumar non-petitioner. Near the bus stop of Abal Khurana, the complainant and his nephew requested bus driver to stop the bus but the driver replied that the bus was non-stop and after starting from Malout, it would stop only after reaching Dabwali. The bus driver was driving the bus rashly and negligently. Criminal Misc. No. M-23121 of 2009 -2- When the bus reached near the Focal Point Mabnana, the complainant and his nephew again requested the bus driver to stop the bus. He slowed down the bus but when Rajinder Kumar was about to alight from the bus, the bus driver accelerated the bus and consequently, Rajinder Kumar was run over by rear wheel of the bus. He died on way to hospital. The police after investigation presented challan for prosecution of bus driver Rajesh Kumar only. During pendency of the case, the complainant Gulshan Kumar and one witness named Rajinder Kumar stated in cross-examination that while the bus was being slowed, the petitioner who was conductor of the bus blew whistle and thereupon, the driver accelerated the bus. On the basis of these statements made in cross-examination, the petitioner has been summoned as additional accused on prosecution application filed under section 319 Cr.P.C. vide order dated 28.2.2008, Annexure P/6. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that no role whatsoever was attributed to the petitioner even according to the prosecution version in the FIR and during investigation. The deceased wanted to alight from the bus at non-scheduled stop when the bus was slow but the driver then accelerated the speed and resultantly, the deceased fell down and came under the real wheel of the bus. After seven years, it was stated for the first time in the witness box that the petitioner was conductor of the bus and had told that the bus would slow down so that the complainant and his nephew could alight from the bus but when the Criminal Misc. No. M-23121 of 2009 -3- deceased was alighting from the bus, the bus was accelerated. This statement was not made in examination-in-chief and it was only in cross- examination that it was stated that the petitioner had blown whistle while the deceased was alighting from the bus. The aforesaid contention has been opposed by learned State counsel by stating that reference to the petitioner has also been made in examination-in-chief of aforesaid witnesses. I have carefully considered the rival contentions and perused the record. The witnesses have not stated in examination-in-chief that the petitioner had blown whistle while the deceased was alighting. This fact was stated in the cross-examination. Moreover, the fact that the petitioner was conductor of the bus and that he had told the complainant and his nephew that the bus would slow down and they could alight from the bus, was stated for the first time in the witness box after seven years of the occurrence. No role whatsoever was attributed to the petitioner either in the FIR or during investigation. In these circumstances, there was no sufficient ground for summoning the petitioner as additional accused under section 319 Cr.P.C. The petitioner cannot be prosecuted merely because two witnesses after seven years have attributed some role to the petitioner. On the other hand, it was the bus driver Rajesh Kumar who was driving the bus and was challaned by the police. In view of the aforesaid, the instant petition is allowed and FIR No. 125 dated 3.10.2000, under sections 279, 304-A IPC, Police Station Lambi, District Muktsar (Annexure P/1), order dated 28.4.2009 (Annexure Criminal Misc. No. M-23121 of 2009 -4- P/4) and charge sheet (Annexure P/5) and summoning order dated 28.2.008 (Annexure P/6) are quashed along with all consequential proceedings, qua the petitioner only. ( L.N. Mittal ) November 25, 2009 Judge 'dalbir'