CRM No. M 33417 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 33417 of 2010 Date of decision: 22.12.2010 Vinod Kumar alias Vinod Saddi ........ Petitioner Versus State of Punjab .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Ms Monica Jalota, Advocate for the petitioner Mr. Munish Kumar, AAG, Punjab for the respondent State -.- 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. This is a petition under Section 482 of the Code of Criminal Procedure for quashing FIR No. 24 dated 18.02.2002 under Section 323, 325, 341, 148, 149, 452 of Indian Penal Code, P S Banga and subsequent proceedings arising thereof. Facts as per prosecution version are that on 18.02.2002, ASI Bhupinder Singh, Incharge, PP City Banga along with fellow police officials was present in the police station where information with regard to the injured having admitted in the civil Hospital, Banga was received and in order to record his statement, he went to the Civil Hospital Banga after CRM No. M 33417 of 2010 2 declaring the injured to be fit to make statement. ASI Bhupinder Singh recorded the statement of Jivian Kumar to the effect that he is agriculturist by profession. On 17.02.2002, at about 6/6.30 pm, he along with his relative Rajiv Kumar son of Amarjit Rai, was going in Maruti Car bearing No. MH 17-A-0612 from the house of his brother Vijay Kumar towards the police post city, Banga because a quarrel had taken place between Rajiv Kumar, Surinder Kumar, Lucky, brother of Luck sons of Jugal Kishore, Sucha Singh, his both sons, Master Jugal Kishore, his both daughters and their husband. When they reached near the Bus Stand Banga, all the above mentioned persons had got stopped their car and after taking out of the car, they were beaten by the above said persons. On 18.02.2002 at about 4.30 am. He was going to the Civil Hospital Banga for taking tea and when he reached ear the railway road, he was stopped by Lucky, Bhalwan son of Sucha Singh and they have gave fist blows. In that fight, he received injuries on his face and his tooth was uprooted. He then returned to his home and narrated whole occurrence to his brother Vijay Kumar who got him admitted in the Civil Hospital where he was medically examined. On the basis of this statement, present FIR was registered. Accordingly, challan was presented against all the accused persons under Sections under Sections 323, 325, 341, 148, 149, 452 of Indian Penal Code. However, the petitioner was declared proclaimed offender on 24.12.2007. The other accused persons against whom the allegations were levelled were acquitted of the charge vide judgment dated 10.08.2009 passed by the Judicial Magistrate Ist Class, Nawanshahr. The said acquittal was primarily on account of the fact that complainant Jivan Kumar failed to put in appearance to face the CRM No. M 33417 of 2010 3 test of the cross examination after the examination-in-chief. It was held that the prosecution has failed to prove the guilt against other accused persons. While acquitting the accused persons, the Judicial Magistrate held as under:- “8 In this case, the prosecution against the accused was launched on the basis of statement suffered by Jiwan Kumar before the police and this witness also corroborated his statement by entering into witness box as PW3 but after his examination in Chief was record, he failed to put in appearance to face the test of the cross examination without which his statement cannot be said to be complete and cannot be read into evidence. Except this witness, the prosecution has also examined two medical officers who are of formal nature in the absence of the statement of complainant and eye witnesses. The prosecution has also examined Investigating Officer SI Bhupinder Singh PW4 but his statement is also of formal nature and cannot be relied upon in the absence of statement of complainant. Thus, there is nothing on record against the accused on the basis of which the accused can be convicted.” Meanwhile, this Court vide order dated 15.11.2010 had directed the present petitioner to surrender before the trial Court on or before 26.11.2010. In pursuance thereto, the petitioner surrendered before the trial Court. He is still in judicial custody. Thus, there is no impediment in the way of this Court to decide the present petition on merit. There is no doubt that the case of the present petitioner and the other accused who were acquitted by the Trial Court is the same. It is also not disputed that the evidence to be conducted/adduced by CRM No. M 33417 of 2010 4 the prosecution against the present petitioner and other accused shall also be the same. The prosecution has to adduce the evidence once again against the present petitioner which has already been led/adduced in the case of other accused persons. It is not the case of the prosecution that there is any other material against the present petitioner besides what were produced during the trial against other accused. Thus, in case, the prosecution is allowed to proceed, it would be unnecessarily resulting in wastage of time. Learned counsel for the petitioner has referred to the decision of this Court rendered in the case of Gurpreet Singh alias Khinder v. State of Punjab reported as 1995(2) RCR (Criminal) 127. In that case also, 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 of the petitioner was acquitted. In Gurpreet Singh's case (supra), learned Single Judge, while arriving at the said conclusion, relied on the judgment of the Apex Court rendered in the case of Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chanrojirao Angre and others, 1988 (1) Recent CR 565. The Apex Court in Madhavrao Jiwaji Rao Scinida's case (supra) held as follows:- “The legal 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 CRM No. M 33417 of 2010 5 opinion of the court chances of an ultimate conviction is weak and, therefore, no useful purpose is likely to be served by allowing a 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.” Reference has also been made to the judgment rendered by the Delhi High Court in the case of Urmila Devi v. The State (NCT of Dehli) reported as 2007(1)RCR (Criminal), wherein, in similar circumstances, the FIR was quashed by relying on the various judgments of the Apex Court and discussed in detailed in para 5 of the said judgment. Para 5 of the judgment reads as under:- “5. The learned counsel for the petitioner tok 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 two co-accused had 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, CRM No. M 33417 of 2010 6 this Court set aside that order and concluded that the trial would only mean a wastage of time in as much 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. (see also Har Prasad v. State of Madhaya Pradesh, AIR 1971 SC 1450; Makan Jivan V. State of Gujarant, AIR 1971 SC 1797; Mohd. Moin Uddin v. State of Maharashtra, 1971 SCC (Cri.) 617). 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.” After examining the allegations in the present case, it is seen that the same are not separate or different from the allegations qua all other accused who have already been acquitted by the trial Court. In any case, CRM No. M 33417 of 2010 7 the complainant himself was not able to lead evidence. The other accused were acquitted on account of failure on the part of the complainant himself to appear for cross examination. Thus, they were acquitted on a total lack of evidence. The Judicial Magistrate Ist Class, Nawanshahr in his judgment dated 10.08.2009 has therefore, rightly concluded that the prosecution has not been able to prove its case against the other accused persons. Thus, It would not be in the interest of justice to permit the present petitioner to be subjected to a trial when the result is evident. Accordingly, the present petition is allowed and FIR No. 24 dated 18.02.2002 under Section 323, 325, 341, 148, 149, 452, of Indian Penal Code, P S Banga and subsequent proceedings arising thereof are hereby quashed against the present petitioner. The petitioner who is in judicial custody is ordered to be released forthwith. (Nirmaljit Kaur) Judge 22.12.2010 mohan