CRR No.1873 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.1873 of 2010 Date of Decision: 15.03.2011 Baldev Singh .....Petitioner Versus Jagir Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Navkiran Singh, Advocate, for the petitioner. Mr. G.S. Gill, Advocate, for respondents No.1 to 5, 7 to 9. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J. Revisionist/complainant has invoked the revisional jurisdiction of this Court impugning the order dated 26.5.2010 passed by Additional Sessions Judge, S.A.S. Nagar Mohali, thereby rejecting the application of the complainant/revisionist moved under Section 311 Cr.P.C. for summoning 17 witnesses. Brief facts of the present case inter alia are that Jagir Singh respondent No.1 has lodged FIR No.365 dated 10.12.2004 with Police Station Mohali contending therein that he has retired from Health Department, Punjab. At about 7.30 a.m. his brother Major Singh son of Narang Singh after untying his cattle from his house was taking them to their cattle shed. When he reached on the gate of the house then Tarlochan Singh son of Baldev Singh Jat resident of Mataur armed with CRR No.1873 of 2010 -2- double barrel gun along with his father Baldev Singh son of Mehma Singh armed with gandasi, Lakhmir Singh son of Mukhtiar, Mohinder Singh alias Lally son of Mukhtiar Singh, Sewa Singh son of Gurbax Singh, Ram Singh son of Gurbax Singh, elder son of Raghbir Singh Balmik, resident of Mataur and Tehal Singh son of Rattan Singh Jhivar resident of Mataur armed with dandas came there. They all along with Baldev Singh raised lalkara that Mehar Singh should not be allowed to escape. When his (Jagir Singh's) brother turned then Tarlochan Singh fired from his double barrel gun at his brother Mehar Singh with intention to kill him. The shot hit on the chest of his brother. His (Jagir Singh's) brother fell on the ground. On hearing the noise of shot son of respondent No.1 Sukhwinder Singh came out of the house and reached at the gate. Tarlochan Singh fired second shot at the son of respondent No.1 with the intention to kill him and on receipt of shot his son also fell on the ground. Respondent No.1 saw whole of the occurrence while standing in varandah on first floor of his house. This occurrence has been seen by Sewa Singh son of Babu Singh and Davinder Singh son of Sewa Singh Jat resident of Mataur. After that Tarlochan Singh, Baldev Singh and others tried to take away brother of respondent No.1 Mehar Singh and his son Sukhwinder Singh who were in injured condition. On their raising alarm they left his brother Mehar Singh and his son Sukhwinder Singh at the spot. While leaving, Tarlochan Singh fired more shots hitting on the walls. Gandasi which Baldev Singh was holding in his hand, fell at the spot. Brother of respondent No.1 was taken to PGI by brother Dharam Singh and son of respondent No.1 Jaswinder Singh. His son Sukhwinder Singh has been taken to FORTIS CRR No.1873 of 2010 -3- Hospital by other members of their family. The cause of the grudge is that cases regarding water pipes and Dharamshala are pending between the parties. On the statement of revisionist/complainant, DDR No.27 dated 10.12.2004, Roznamcha Police Station Phase-8, Mohali, wherein complainant/revisionist has stated that he is a resident of village Mataur, Tehsil Mohali, District Ropar, aged 60/65 years and is an agriculturist and today around at 8.00 a.m. his son Tarlochan Singh was making a move of the land in dispute located in village Mataur, when the other party Mehar Singh, Jagir Singh, Dharam Singh, Bhima, Jagga, Guddu, son of Ran Singh residents of Mataur and Sukhwinder Singh, his son Jagir Singh, on seeing them started abusing them loudly. They (revisionist) came inside their house and closed the doors. Mehar Singh, Jagir Singh, Dharm Singh, Bhima and Sukha scaled over wall and came inside and Mehar Singh caught hold of the complainant/revisionist from his hair and started dragging him towards outside and on bringing him outside the house, Jagir Singh gave a danda blow on his head and Sukhwinder Singh gave a gandasi blow on his left hand and Jagir Singh exhorted that today he should not be able to save himself. Bhim Singh, Dharam Singh and Jagga gave his beatings with legs. At that time people of above party namely Sardara Singh and his son Bitu and Darshi Balmik residents of village Mataur, Nirmal Singh s/o Bhim Singh and Makhan Singh s/o Mehar Singh were also present on the spot. Complainant/revisionist raised hue and cry and then his son Tarlochan Singh came out and said “father I have come you should not feel afraid I have come”. Revisionist went unconscious on the spot. Lateron CRR No.1873 of 2010 -4- complainant/revisionist came to know that Ravinder Singh and Kuldip Singh initially took him to hospital in Phase VI Mohali, from there he was referred to PGI. The cause of enmity is that a case is pending in the Kharar Court with Jagir Singh party regarding the water channel and Dharamshala land and previously also after coming to the house of complainant/revisionist they had given them beatings. On an application filed by Paramjit Kaur wife of accused Baldev Singh, an inquiry was conducted by Superintendent of Police, Mohali, on the directions of Senior Superintendent of Police, in the allegations made in DDR No.27. After a detailed enquiry, the allegations levelled by accused Baldev Singh in the said DDR were found to be false and fabricated made with an object to take defence that other party was the aggressor. Subsequently, accused Baldev Singh filed Crl. Misc. No.27725-M of 2005 in this Court under Section 482 of the Code for issuing directing to the police to file challan in the cross case registered vide DDR No.27 dated 10.12.2004. In that petition, reply by way of affidavit of Gurjit Singh, SHO, Police Station Mohali was filed, in which it was stated that in DDR No.27 a thorough investigation was conducted at different levels and the allegations contained therein were found to be false, therefore, no challan is required to be filed by the police on the basis of DDR. After filing the reply, the said petition was dismissed as withdrawn on 11.8.2005 with liberty to accused Baldev Singh to file criminal complaint regarding his counter version. Thereafter, accused Baldev Singh filed a private complaint against the petitioners for offence under Sections 307, 452, 324, 326, CRR No.1873 of 2010 -5- 148, 149 IPC, in which vide order dated 1.11.2006, passed by Sub Divisional Judicial Magistrate, S.A.S. Nagar, Mohali, all the petitioners, except petitioner Gurpreet Singh, were summoned to face trial under Sections 326, 452, 148, 149 IPC. In the meanwhile, when the SHO Police Station Mohali was transferred, new SHO, namely Inspector Jagdish Singh filed challan in DDR No.27 without disclosing the aforesaid facts. This Court vide order dated 10.1.2007 quashed the challan filed by the police in DDR No.27 dated 10.12.2004. This Court while quashing the challan in DDR No.27 dated 10.12.2004 has observed as under: - “In this case, earlier a detailed enquiry was conducted by Superintendent of Police, Mohali. His enquiry report was accepted by Senior Superintendent of Police, Ropar and then approved by the ADGP Crime, Punjab. Thereafter, a decision was taken by the police not to file challan in DDR No.27. Gurjit Singh, the then SHO, Police Station Mohali filed affidavit in Crl. Misc. No.27724-M of 2005 in this court stating therein that the allegations levelled in the DDR No.27 are false and no challan is going to be filed in the same. Even the aforesaid petition filed by accused Baldev Singh under Section 482 of the Code for issuing direction to the police to file challan in DDR No.27 was dismissed as withdrawn with liberty to file complaint. Thereafter, a complaint was filed by accused Baldev Singh against the petitioners, in which vide order dated 1.11.2006, passed by the Judicial Magistrate, all the petitioners, except petitioner Grupreet Singh, have been summoned to face trial under Sections 326, 452, 148, 149 IPC. The said complaint is still pending. Further during the pendency of these petitions, accused Baldev Singh filed a petition under Section 482 Cr.P.C (Crl. Misc. No.64984-M of 2005) seeking direction to the trial court to club the FIR as well as the complaint case. Thereafter, vide order dated 28.2.2006, passed by this Court, it was directed that both the cases be decided by one and the same Court and judgment be pronounced CRR No.1873 of 2010 -6- simultaneously. In view of these facts, in my opinion, the SHO, who took over charge after transfer of Gurjeet Singh, has committed illegality while filing challan in DDR No.27 dated 10.12.2004 by concealing the facts and even without taking prior approval from the Senior Superintendent of Police. Since in the private complaint, the petitioners have already been summoned and the said complaint is to be decided by the same court, in my opinion, no prejudice is going to be caused in case the challan filed in DDR No.27 dated 10.12.2004 is quashed. Order passed by this Court dated 10.1.2007 was challenged by the complainant/revisionist in SLP (Criminal) No.867 of 2007 before the Hon'ble Supreme Court. SLP filed by the revisionist was dismissed vide order dated 26.2.2007 having observed as under: - “We have heard learned senior counsel appearing on behalf of the petitioner and perused the impugned order passed by the High Court. We do not find any ground to interfere with the order passed by the High Court which is impugned in this Special Leave Petition. The Special Leave Petition is accordingly dismissed. However, we make it clear that the complaint filed by the petitioner will be decided on merits without being influenced by any of the observations made in the impugned judgment.” In a complaint case charges were framed on 6.9.2008 and 24.9.2008 was fixed for the evidence. Thereafter, case was listed on 23 different dates for complainant's evidence, however, evidence could not be concluded and case was kept on adjourning on one pretext or the other and ultimately on 6.1.2010 cross-examination of Tarlochan Singh PW was concluded, however, no other PW was present. Learned counsel for the petitioner made undertaking that he will produce entire remaining evidence on the next date otherwise his evidence shall be deemed as closed. Case was adjourned for 3.2.2010. On 3.2.2010 CRR No.1873 of 2010 -7- evidence of the revisionist was closed pursuant to his undertaking furnished before the trial Court on 6.1.2010. On 6.2.2010 statement of the accused under Section 313 Cr.P.C. was recorded and case was adjourned to 10.2.2010 for defence evidence. On 22.2.2010 application under Section 311 Cr.P.C. was moved by the complainant/revisionist. Application was rejected vide impugned order dated 26.5.2010. Application under Section 311 Cr.P.C. reads as under: - “1. That the above titled case is pending before this ld. Court and is fixed for today for 313 Cr.P.C. statement of accused. 2. That on 03.02.2010 the evidence of the complainant was closed by this ld. Court. 3. That the complainant wants to summon the following witnesses for the proper adjudication of the case. LIST OF WITNESSES 1. Dr. G. Biswas, Consultant Unit Plastic Surgery, PGI Chandigarh alongwith the case summary of Baldev Singh CR. No.362515, Admission No.48353 dated 10.12.2004. 2. Dr. Anoop Singh, Senior Resident, PGI Chandigarh alongwith x-ray report conducted, Baldev Singh and Radiology Report No.48371 CR. No.362515 dated 10.12.2004. 3. Dr. Baljinder Garg from PGI, Chandigarh conducted the operation of Baldev Singh on dated 11.12.2004 of CR. No.362515 dated 10.12.2004 alongwith the record of the operation of Baldev Singh. 4. Dr. Gian Singh, PGI Chandigarh who was also at the operation of Baldev Singh dated 11.12.2004 alongwith record of operation of Baldev Singh CR. No.362515 dated 10.12.2004. 5. Dr. Yadvinder Singh, SMO Health Officer, Municipal Corporation, Patiala who was posted at Central Jail, Patiala, on 5.3.2005 and referred the patient Baldev Singh son of Mahima Singh who was confined in Central Jail, Patiala at the time referred to Rajindra Hospital, CRR No.1873 of 2010 -8- Patiala. 6. Chamkaur Singh Pharmacist (concerned clerk) of Central Jail, Patiala alongwith Journal Register of Dr. Yadvinder Singh SMO, Central Jail Patiala dated 5.3.05 referred to UT Baldev Singh son of Mahima Singh from Jail Hospital to Rajindra Hospital, Patiala and alongwith admission record of Jail Hospital, Patiala. 7. Concerned official alongwith the reference slip of the Central Jail, Hospital Patiala from the Rajindera Hospital Patiala No.3155 dated 15.03.05 of Ortho Department, Rajindra Hospital, Patiala letter No.581 dated 15.03.05 of Ortho Department. 8. Kuldip Singh son of Ujjagar Singh village Badwali, Tehsil & District Ropar, eyewitness and admitted Baldev Singh in the hospital. 9. Ravinder Singh son of Bachan Singh village Kumbra, Tehsil and District Mohali eyewitness who also admitted Baldev Singh in Civil Hospital, Mohali and referred to PGI Chandigarh. 10. Dilpreet Singh, Advocate, Kharar now posted as ADA District Court, Chandigarh (who was the local commissioner) alongwith report dated 14.12.04 case titled Gurbax Singh Vs. Mehar Singh. 11. Pawan Kumar, Civil Ahalmad Civil Court, Kharar now posted at Civil Court Mohali alongwith Civil Suit No.631 of 2004 titled as Gurbax Singh Vs. Mehar Singh and other case. 12. ASI Narinder Singh who investigated the case titled as State Vs. Jagir Singh U/S 326/452/201/148/149 IPC, PS Mohali. 13. HC Vijay Kumar who investigated the case titled as State Vs. Jagir Singh U/S 326/452/201/148/149 IPC, PS Mohali. 14. HC Amrik Singh No.845 RPR written the DDR No.27 dated 10.12.2004 PS Central Mohali. 15. Sudagar Singh so of Baldev Singh Clerk who is posted at the office of S.K. Atri, Advocate alongwith Civil Suit No.631 of 2004 titled as Gurbax Singh Vs. Mehar Singh filed by Sh. S.K. Atri on behalf of CRR No.1873 of 2010 -9- plaintiff. 16. ASI Ramesh Kumar who investigated the case State Vs. Jagir Singh FIR No.349 dated 25.08.2003 U/S 452/506/447/427/323/148/149 IPC, PS Mohali. 17. Concerned Clerk from the record room of Sessions Court, Ropar alongwith the case file State Vs. Jagir Singh decided on 03.02.2007 FIR No.365 dated 10.12.2004 PS Mohali to come with the original case summary of Baldev Singh and x-ray report using with this case file.” Perusal of the application shows that no reason is assigned in the application as to why prosecution witnesses sought to be summoned were not produced before the Court on 23 different dated fixed for the purpose of revisionist's evidence. Although, in the present revision, learned counsel for the revisionist tried to explain that witness No.1 is required to prove the injuries on Baldev Singh accused; witness No.2 to prove x-ray report of Baldev Singh; witness Nos.3 and 4 to prove operation of Baldev Singh accused; witnesses No.4, 5 & 6 to prove that Baldev Singh accused was referred to Hospital; witness Nos. 7 and 8 alleged eyewitnesses of the incident; witness No.9 to bring record of civl suit; witness No.s10, 11, 12, 13 & 14 to prove the registration of DDR No.27 and investigation theron; witness No.15 to bring the record of civil suit No.631 of 2004; witness No.16 to prove FIR No.349 dated 25.8.2003 and witness No.17 to bring the original original MLR from the file of Sessions Judge. I am unable to find out any explanation either in the application moved before the trial Court under Section 311 Cr.P.C. or in the memorandum of revision as to why witnesses sought to be summoned were not examined before the trial Court on 23 different CRR No.1873 of 2010 -10- dates for the purpose of revisionist evidence. A vague and ambiguous contention is made in paragraph No.9 of the body of the revision that trial Court lawyer made a mistake and closed the evidence by making the petitioner to give a statement on 6.1.2010, whereas the petitioner has to prove his case through evidence, which had to be summoned. Bald, vague and ambiguous contention in paragraph No.9 of the revision does not inspire confidence. Learned counsel for the revisionist has vehemently argued that evidence sought to be summoned is already led in defence by the son of the petitioner, therefore, revisionist must be permitted to summon those very witnesses in its complaint. Perusal of the record reveals that case was adjourned on 23 different dates on one ground or another, however, witnesses now sought to be summoned were never requested to be summoned nor produced by the revisionist before the trial Court and ultimately a statement was made on 6.1.2010 that if revisionist /complainant fails to produce the entire evidence on the next date fixed, his evidence should be presumed to be closed. In the peculiar facts and circumstances of the case, I agree with the trial Court that only intention of the revisionist seems to be mala fide to cause unnecessary delay in the trial wherein revisionist's son is a accused under Section 302 IPC. In the peculiar facts and circumstances of the case, I find this is not a case where judicial discretion under Section 311 Cr.P.C. should be exercised in favour of the revisionist/complainant. Judicial discretion under Section 311 Cr.P.C. can only be exercised when party invoking Section 311 Cr.P.C. comes CRR No.1873 of 2010 -11- before the Court with clean hands and Court finds that in the peculiar facts and circumstances of the case to bring truth on the record evidence sought to be summoned is necessary and must. As observed hereinabove, contents of the revision do not inspire confidence and intention of the revisionist seems to be mala fide to cause undue delay in the main trial wherein his son is accused for an offence punishable under Section 302 IPC. Impugned order does not require any interference. Revision is dismissed. (Alok Singh) Judge March 15, 2011 R.S.