CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 26, 2011 Amritbir Kaur .....Petitioner VERSUS State of Punjab ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. P.B.S.Goraya, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner has approached this Court through present criminal misc.petition with somewhat unfamiliar plea. Petitioner seeks direction to Judicial Magistrate Ist Class, Amritsar for committing the case bearing FIR No.53 dated 20.4.2008, under Sections 365, 342, 420, 120-B IPC to the Court of Sessions on the ground that the offence committed by the accused is a serious in nature and exclusively triable by the Court of Sessions. Can this court direct Magistrate to exercise his judicial power to commit a case under the Procedural Code is a question which may need a consideration? CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 2 }: This case was registered under Sections 365, 342, 420 and 120-B IPC, where offence under Section 304 IPC was added later. The challan, however, was presented under Sections 304-A and 420 IPC. The plea, however, is that the offence under Section 304 IPC is revealed, which is triable by the Court of Sessions and, hence, petition for directing the Judicial Magistrate Ist Class to commit the case for trial to the Court of Sessions. Whether such a plea could be so maintained was the first question, which the counsel for the petitioner was required to address. The counsel has advanced some submissions and has placed before the court number of precedents. These cases apparently do not provide any direct support to the plea as raised. The facts may be noticed first to appreciate the submissions made by the counsel. The petitioner states that she being daughter of his late father Sarabjit Singh is fighting a lone battle against her own parental uncles, who are allegedly being shielded at every stage by the corrupt system prevailing in the society. As per the petitioner, her father has been systematically done to death in a premeditated manner through a plan which is well executed. Petitioner alleges that her father has been killed in a planned manner by accused persons, who first separated the deceased from his family and then kidnapped him to intentionally deny him medical treatment, which was necessary for his survival, which accelerated his death. Thereafter, the accused persons have usurped his share of land. The petitioner pleads that the accused persons have CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 3 }: deliberately and knowingly acted against the medical advice and kept her father away from treatment, so that he could die for lack of medical attention. The prayer, thus, is that it is case of culpable homicide is made out and so the trial Court be directed to commit the case to the court of Sessions. To show that this was an intentional act on the part of the accused, the petitioner has disclosed the facts as are being noticed here. Reference is made to the ailing health of deceased Sarabjit Singh, who was statedly suffering from diabetes and hepatitis. It is averred that Sarabjit Singh had developed a gangrene on his left foot for which he required a proper medical treatment. The accused persons, on the other hand, adopted modes to accelerate his death. Deceased Sarabjit Singh remained admitted in Mundh Hospital, Ranjit Hospital, Amritsar from 26.3.2008 to 1.4.2008, but was got discharged against medical advice. In this regard, reference is made to the case history of the deceased, reproduced below, which is highlighted to show that the deceased was taken from the hospital against medical advice:- “NOTE:- We have been informed about the health condition of our patient. We are ready to get him treated at our consent. Kultar Singh, Advocate 26-3-2008 We cannot spend on the treatment of our patient. So we are taking our patient at our own responsibility. Hospital is not responsible for this.” Thereafter, the deceased statedly remained in Arora CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 4 }: Hospital, Chhehata, Amritsar from 20.4.2008 to 4.5.2008 from where also he was got discharged against the medical advice. Reference in this regard is made to following certificate, which was issued by the hospital though not for medico-legal purpose:- “NOT FOR MEDICO LEGAL PURPOSE To whom it may concerned it is stated that Sh.Sarabjit Singh son of Gurmukh Singh, age 50 years resident of Ranjit Avenue, B-189, Amritsar, was suffering from diabetic Melleytes, hypertension, Hepatitis and diabetic foot ulcer. He remained admitted in hospital from 20 April, 2003 to 4 May, 2008 during the period of staying in the hospital on 25 April, 2008. His attendant took the patient to some other place from 7 am morning to the evening. The patient was left against medical advice on 4 may, 2008. Sd/-seal.” It is disclosed that thereafter the deceased was admitted in Guru Nanak Hospital Amritsar from 22.5.2008 to 29.5.2008. As per the petitioner, the deceased was shifted from one hospital to another to avoid detection of his whereabouts by his family members. The deceased statedly was refused treatment by the accused attendant, which, the hospital wanted to give. Having made reference to the medical record, the petitioner has disclosed that she is a handicapped by birth, whereas her sister is married. The accused in the present case , i.e., Kultar Singh and Mukhtiar Singh are real brothers of Sarabjit Singh, whereas Kanwaljit Singh and Kewaljit Singh are real nephews. The CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 5 }: accused were allegedly having eye on the property of the deceased as he was not having any son. It is stated that the deceased was not fully mentally fit and was drug addict. The brothers, therefore, did not permit him to partition the joint property. It is alleged that in the year 1999, the accused had caused injuries to the deceased and his wife Surinder Kaur and her daughter Sirjanbir Kaur. FIR No.204 dated 13.9.1999 was registered at Police Station, Majitha under Sections 326, 323 and 34 IPC. The petitioner alleges that the accused persons then hatched a conspiracy to separate the deceased from his family. On their instigation, the deceased turned the petitioner out from his house. Thereafter, the accused persons prepared plans in a designed manner and got full control over the deceased. The deceased is stated to be a drug addict and so for his survival he was dependent upon the accused persons. He being a patient of diabetes suffered in health and ultimately of a gangrene of left foot. Despite this serious health problem, the accused persons did not allow the wife and daughter to meet the deceased. It is stated that he was kept at some undisclosed place, whereas the petitioner being his daughter kept on searching for him. Deceased owned 12 acres of land as his share. The accused being the real brothers, thus, were wanting to usurp this land. They got 20 kanals and 12 marlas land situated in village Supariwind through a sale deed for a sum of `14,50,000/-. Within a week thereafter, the remaining land of the deceased was also transferred in the name of all the accused persons through three separate sale deeds in a suspicious manner. This was land measuring 30 Kanals 13 Marlas in CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 6 }: Village Sohian Kalan for `25,45,000/- and 10 kanals 19 marlas in village Hamza for `7,66,500/-. On the same day, 39 kanals 4 marlas of land situated in village Majitha was sold for `27,44,000/-. Thus, total land was transferred in the name of the accused persons through four separate sale deeds within one week for a sum of `75,05,500/-. Initially, the petitioner had lodged an FIR under Sections 363 and 366 IPC against the accused persons for kidnapping of late Sarabjit Singh. On the death of deceased Sarabjit Singh, offence under Section 304 IPC was added. The petitioner had produced the oral as well as documentary evidence to the police to show the modus operandi of the accused persons. The police, however, being under the influence of accused persons has filed a challan under Sections 304-A and 420 IPC. Urging that the accused are liable for murder for deliberately and systematically depriving the deceased of medical treatment, the petitioner has accordingly filed this petition to seek direction for committing the case to the Court of Sessions by adding offence under Sections 304 IPC instead of confining it to an offence under Section 304-A IPC. The counsel has referred to Section 209 Cr.P.C. in support of his plea and would highlight the word “appears” used in the section to pray for direction to the Magistrate to commit the offence to the Court of Sessions. Section 209 provides that when in a case instituted on a police report or otherwise and the accused appears or is brought before a Magistrate and it appears to the Magistrate that the offence is triable exclusively by Court of CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 7 }: Sessions, then he shall commit, after complying with the provisions of Section 207 or Section 208 Cr.P.C., as the case may be, the case to the Court of Sessions. The plea is that the case clearly is revealing an offence under Section 304 IPC, which is exclusively triable by the Court of Sessions and, hence, the Magistrate acting under Section 209 Cr.P.C. ought to commit the case to the Court of Sessions. The counsel for the petitioner has relied on the case of Dinesh Dutt Joshi Vs. State of Rajasthan and another, 2002 Supreme Court Cases (Crl) 24 to urge that power of the High Court under Section 482 Cr.P.C. could be exercised to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of process of any court or otherwise to secure the ends of justice. At the same time, the Hon'ble Supreme Court in this case has observed that this extraordinary power is to be used in extraordinary cases. In Dinesh Dutt Joshi's case (supra), the charges were framed against one accused, but another accused was discharged. The person who was charged by the trial court had approached the High Court against the order framing the charge. His revision petition was dismissed and while dismissing the petition of the accused person, the High Court exercised power under Section 482 Cr.P.C. to set aside the order of trial court whereby it had discharged co-accused. While setting-aside the order passed by the High Court, the Hon'ble Supreme Court has made the above noted observation about the inherent powers available to the High Court under Section 482 Cr.P.C. The Hon'ble Supreme Court interfered in the order passed by the High Court mainly on the ground that High CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 8 }: Court had done so without affording any opportunity of hearing to the affected accused. Reference is then made to Popular Muthiah Vs. State represented by Inspector of Police, 2006(3) R.C.R. (Criminal) 527 to urge that High court apart from exercising its revisional or inherent powers indisputably may also exercise its supervisory jurisdiction in terms of Article 227 of the Constitution of India and in some matters in terms of Section 483 Cr.P.C.. However, it is also held that inherent powers of this High Court are not unlimited. This power has been summed up as follows:- “(i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused., (ii)Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor. (iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists. It is also not in dispute that the said power CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 9 }: overrides other provisions of the Code but evidently cannot be exercised in violation/contravention of a statutory power created under any other enactment.” In Dr.Dattatraya Samant and etc. Vs. State of Maharashtra, 1981 Crl.L.J.1819, Bombay High Court has gone into the scope and nature of jurisdiction of a Magistrate. It is observed that the Magistrate is not obliged to mechanically commit the case to the Court of Session and has a discretionary power. Discretion is limited to what is apparent on the face of record. While noticing the distinction whereby the committal proceedings have been practically abolished, the court has made reference to Section 209 of the Code, where the case is to be committed, when it appears to the Magistrate that the offence is exclusively triable by the Court of Sessions. The court has observed as under:- “The scheme of the new Code in this context makes some features quite prominent and sharp. In cases instituted otherwise than on police report, evidence is required to be recorded which is obviously necessary as there is no pre-screening by any agency as the copies are supplied to the defence. In other cases, the copies of relevant documents including the F.I.R. and statements recorded under Section 161 and 164 of the Code are to be supplied. Both these types of cases up to that stage travel on different tracks but thereafter both are regulated on the same track culminating in the operation of Sec. 209 of the Code where under the case is committed to CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 10 }: the Court of Session. In that behalf, two aspects stand out on the forefront, namely, that the Magistrate has to concentrate predominantly on the offence being exclusively triable by the Court of Session and further it is the case that is to be committed and thus the consideration vis-a-vis the involvement of the accused being pushed in the background which may be in contrast with the provisions of the old Code. This is further reinforced by such consideration about the involvement of the accused and adequacy of the material in support of that claim being pulled out of the background on the forum of the Sessions Court after commitment. Further, the only requirement is that it should appear to the Magistrate about the existence of such offence, It is true that implicit therein is the further expectation that it should so appear to the judicial mind on the basis of the material on record. The perusal of the record and application of judicial mind to that limited extent becomes inevitable. In that context and in that limited field, the judicial mind is not supposed to surrender its judgement to the Police or otherwise, if a wrong label is tagged by the Police it would make the goods saleable. The legislative intent is apparent when the forum of the Magistrate and his satisfaction is incorporated in the provision itself. However, parallel to it is also the other shade of the legislative intent about the limited field available to the CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 11 }: Magistrate. The user of the terminology "if it appears to the Magistrate" makes both these aspects to co-exist. The blending of these two integral aspects is inescapable which would mean that though there is no wholesale clipping of the jurisdiction of the Magistrate rendering it to a nullity, yet, it is circumscribed by all these limitations and restrictions. There should be application of judicial mind for which purpose perusal of the material on record is implied and in that sense, the approach may not be mechanical, but the judicial satisfaction is elevated only to the limited pedestal where it is made to appear to the authority on the face of the record and not further. The employment of the word "appear" is permanent with all these inevitable inferences which, in turn, negative a deeper probe or involving the process of appreciation of finer shades. In effect, therefore, on a plain reading of the material on record which impliedly excludes appreciation of finer shades involving a deeper probe as at the full- dressed trial, if it appears to the judicial mind of the Magistrate that there exists an offence triable exclusively by Sessions Court, or on such plain reading such an offence is prima facie or on the face of the record is disclosed, then he has no option but to commit the case to the Court of Session. The counterpart obviously would be that even on such plain reading, it does not appear to the judicial mind that any such offence exclusively triable CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 12 }: by the Court of Session exists or even prima facie and on the face of the record no such offence is disclosed at all, then, in that limited field and contingency, he may decline to commit the case, Annexing of wrong label or application of wrong Section on the face of the record would be one of such contingencies. Apart from such gross cases, there may occur a situation in an appropriate case where on the plain reading of the material placed before the Magistrate, the offence may not appear to him to be exclusively triable by the Court of Session in which event, he may not commit the case to the Court of Session. I may incidentally observe that in the case of a private complaint, there exists an additional factor at the intervening stage, after recording of evidence and before issuance of process, when such a complaint can be dismissed if on the material the Magistrate forms an opinion that there is no sufficient ground to proceed.” The Court has also examined the provisions of Section 209 Cr.P.C. in the context of Section 227 and 228 of the Code of Criminal Procedure. In this regard, the Court has observed as under:- “This provision should not be confused while interpreting the powers of the Magistrate under Sec.209 of the Code. On a plain and harmonious reading of Section 228(1) (a) and Section 209 of the new Code, it does not follow that merely because the Sessions Court is vested with the discretionary powers to set aside a committal under CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 13 }: Section 228(1)(a) and to send the case back, the Magistrate is obliged to almost mechanically commit a case even if the offence does not appear to him to be triable exclusively by the Court of Session.” Reference is also made to Full Bench decision of the Patna High Court in Tuneshwar Prasad Singh and another Vs.State of Bihar, 1978 Crl.L.J.1080. It is observed In this case that a proceeding under Section 309 is in the nature of an `inquiry' within the meaning of Section 2(g) and as such under the provisions of Section 309(2) read with Section 209, the Magistrate, after having taken cognizance of the offence and before committing of the case to the Court of Session, is fully empowered to remand the accused to custody. It is also observed in this case that an application of mind to ascertain what offence is made out on the facts as alleged and whether such an offence is exclusively triable by the court of Session is absolute necessary for the Magistrate before he can commit the case to the Court of Session under Section 209 of the Code. Once on a judicial application of mind, the Magistrate comes to the conclusion that the allegations made and materials on record attract a particular penal provision which, in its turn, is exclusively trial by a Sessions court, he has to commit. This bringing of judicial mind to bare upon the facts alleged and the ascertainment of particular penal provision which is attracted and as to whether such an offence is exclusively triable by Court of session certainly needs a security. The court has observed that it is a search for knowledge, it is to seek, to scrutinise and to study and not a mere mechanical act, but an inquiry, CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 14 }: albeit, within a very narrow compass. The counsel for the petitioner has then referred to Jamil Ahmed Vs. Hanif and others, 1995 (3) R.C.R. (Criminal) 50, a decision of this Court where the Magistrate did not commit the case to Court of Sessions, when he found that prima facie offence under Section 307 IPC was not made out. This court upheld that order and observed that Magistrate cannot be treated merely as a Post Office and commit the case to the Sessions on receipt of a police report and that the Magistrate has to apply his mind whatever material available on record. In regard to powers of the High Court under Section 482 Cr.P.C., reference is also made to M/s Pepsi Foods Ltd. Vs. Special Judicial Magistrate, AIR 1998 SC 128 and Bhanu M. Vakil Vs. Chandra Oshiram Keswani and another, 1991 Crl.L.J.2819. The material on record is not only what has been highlighted by the petitioner in this petition under Section 482 Cr.P.C. The petitioner had made a complaint and in that regard police had conducted an enquiry, copy of which is annexed with the petition as Annexure P-2. The deceased Sarabjit Singh had recorded his statement before Judicial Magistrate Ist Class, Amritsar on 2.5.2008 to the effect hat his wife Surinder Kumar and his daughter Amritbir Kaur are out of his control and for the last 9-10 years were staying separately at village Chauhan and were trying to get his property. The deceased had further stated that he was staying with his brothers on his own concern and they were properly looking after him. He has CRIMINAL MISC. M NO.31689 OF 2011 (O&M) :{ 15 }: also stated that he used to remain unwell and his brothers were taking proper care for him and getting him treated from the hospital. He has further stated that he had sold his property to his brothers and his nephews with his own consent and without pressure. In this regard, Kultar Singh had also approached this Court where the court had asked them to approach the S.P.Amritsar to bring the actual facts to his notice. After making reference to all the facts and the issues raised before this Court, it is recorded that offence under Section 304, 365, 342 IPC was not made out and be deleted and offence under Section 304-A IPC be added. On this basis and on the basis of material on record, it cannot be said that the Magistrate has not applied his mind to the facts of the case or that there is material available to conclude that the offence under Section 304 IPC is made out. The enquiry may be envisaged under Section 209 Cr.P.C., but the application of judicial mind, is to the limited extent. The plain reading would indicate that appreciation of finer shades involving a deeper probe as at the full-dressed trial, if it appears to the judicial mind of a Magistrate that there exists an offence triable exclusively by a Court of Sessions, or on such plain reading such an offence is prima facie or on the face of the record is disclosed, then he may commit the case to