Crl.Rev.No.160 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev.No.160 of 2009 Date of decision : 15.9.2009 Varinder Singh ....Petitioner Versus State of Haryana and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Mr.Naresh Prabhakar, Advocate for the petitioner. Ms.Sushma Chopra, Addl.Advocate General, Haryana, for respondent No.1. Mr.Ashish Aggarwal, Advocate for respondents No.2 and 3. Mr.K.S.Nalwa, Advocate for respondent No.4. ..... MAHESH GROVER, J. This revision petition is preferred against the order dated 30.10.2008 by which the charge against the petitioner has been framed. The principal grievance of the petitioner is that the copy of FIR, which is a part of the challan, was not supplied to him, and this has vitiated the entire proceedings. The Court was precluded from taking cognizance of any offence against him. Reliance has been Crl.Rev.No.160 of 2009 -2- placed on Smt. Kalpana Ghosh v. State and others 1996 Cri.L.J.1406 and Sharadechandra Vinayak Dongre and others etc. v. State of Maharashtra 1991 Cri.L.J. 3329. The respondents have contested the claim of the petitioner primarily on facts. It has been stated that the FIR was registered on 10.5.2003 and the challan under Section 173 Cr.P.C. was prepared on 18.9.2003, and it was presented to the court on 12.12.2006. In this interregnum, the petitioner filed two petitions under the provisions of Section 482 Cr.P.C. praying for quashing of the FIR and all consequent proceedings arising therefrom in which the copy of the FIR was appended. For the first time an application was made before the learned trial court for obtaining the certified copy of the FIR on 8.3.2008 wherein it was discovered that the same was missing from the file of the court. On an application to the police the response given by them was that pursuant to the FIR dated 10.5.2003, the incharge of Police Station Kharkhoda had prepared the challan on 18.9.2006 and submitted the same to the court on 12.12.2006. It is thus contended that the petitioner being aware of the FIR having appended the same with the proceedings under Section 482 Cr.P.C., initiated by him in this court, no prejudice has been caused to him even if his argument is to be accepted. But in any eventuality, the petitioner kept quiet for about 15 months after the receipt of the copy of challan by him to make such a grievance. It was further contended that according to the provisions of Section 461 Cr.P.C., these are not irregularities contemplated under the Code which vitiate the proceedings, and since the FIR has gone missing after the submission Crl.Rev.No.160 of 2009 -3- of challan, at best the matter ought to be inquired into on the administrative side by the court but under no circumstances the proceedings can be said to have been vitiated. I have heard the learned counsel for the parties and have perused the record. Section 157 Cr.P.C. requires that the copy of FIR has to be sent to the Magistrate, which is received by him under his seal and signatures. Section 207 Cr.P.C. also requires that the copies of FIR and other documents have to be supplied to the accused. There is no dispute about these facts that the report under Section 173 Cr.P.C. has to include the FIR and all other relevant material which the police might have collected during the course of investigation and which have to be supplied to the accused by the court itself. But the question that arises in the instant proceedings is as to whether the contention of the petitioner that he was not supplied with the copy of the FIR can be accepted and that further, if it has not been supplied to him, then does it vitiate the entire proceedings or not? On examination of the facts and material on record it transpires that the petitioner on two different occasions had approached this Court by way of filing proceedings under the provisions of Section 482 Cr.P.C. He sought the quashing of the FIR. The copy of the FIR was specifically appended thereto. The FIR was also placed on record by way of separate application. In this view of the matter, when these proceedings were initiated between 2006 and 2008, it cannot be expected by this Court Crl.Rev.No.160 of 2009 -4- that the petitioner had no knowledge of the contents of the FIR when he himself had been agitating for quashing of the same. For the first time he made an attempt to get the certified copy of the FIR in the year 2008 when he had already initiated the quashing proceedings twice over before this court and the FIR was placed by him on record. In the opinion of this court, it seems to be a clever ploy to create a situation seemingly to his advantage to show an imaginary prejudice and claim that the entire proceedings stand vitiated. There is indeed no doubt that the supply of copy of the FIR and all other relevant material which is required to be given pursuant to the provisions of Section 207 Cr.P.C. are essential which go a long way to ensure the rights of an accused person against whom prima facie material has been collected by the police and report submitted under Section 173 Cr.P.C. But at the same time if the document in question is already in his knowledge and possession, then it cannot be said that even if the same was not a part of the report under Section 173 Cr.P.C., some prejudice has been caused to the petitioner. Strangely enough, the petitioner has cleverly concealed the fact of filing the quashing petitions earlier and has chosen to retain his silence even when the reply was filed by the respondent and this objection was taken by them. Counsel for the petitioner also made no attempt to refer to the proceedings during the course of his arguments. The court is also of the opinion that the petitioner deliberately concealed the material facts from this court. The Supreme Court in MCD v. State of Delhi and another 2005 Supreme Court Crl.Rev.No.160 of 2009 -5- Cases (Cri) 1322 has observed as follows :- “21. This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No.202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, new Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on false hood has no right to approach the court and he can be summarily thrown out at any stage of the litigation. In the instant case, non-production of the order and even non-mentioning of the conviction and sentence in Criminal Case No.202 of 1997 tantamounts to playing fraud on the Court. A litigant who approaches the court is bound to produce all documents which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. The second respondent in our opinion, was not justified in suppressing the material fact that he was convicted by the Magistrate on an earlier occasion. Since Crl.Rev.No.160 of 2009 -6- the second respondent deliberately suppressed the crucial and important fact, we disapprove strongly and particularly, the conduct of the second respondent and by reason of such conduct, the second respondent disentitled himself from getting any relief or assistance from this court. We, however, part with this case with a heavy heart expressing our strong disapproval of the conduct and behaviour but direct that the second respondent to pay a sum of Rs.10,000/- by way of cost to the appellant herein. In Sharadchandra Vinayak Dongre and others v. State of Maharashtra (supra), the following observations have been made :- “A plain reading of S. 173, Cr.P.C. shows that every investigation must be completed without unnecessary delay and as soon as it is completed, the Officer-in-charge of the Police Station shall forward a report to the Magistrate in the form prescribed. Therefore, there is no question of sending up of a "police report" within the meaning of S. 173 and sub-sec. (2) until the investigation is completed. Any report sent before the investigation is completed will not be a police report within the meaning of sub-sec. (2) of S. 173 read with S.2(r) and there is no question of the Magistrate taking cognizance of the offence within the meaning of S. 190(1)(b) on the basis of an incomplete charge-sheet. The incomplete charge- sheets cannot be treated as a “police report” at all as Crl.Rev.No.160 of 2009 -7- contemplated under S. 173(2) to entitle the Magistrate to take cognizance of the offences. A police report as defined in S. 2(r) can only be filed "as soon as the investigation is completed." If it is not complete, no such report can be filed. When no report is forwarded as required by the Code, the Magistrate cannot take cognizance. Thus, unless all these steps are crossed, sub- sec. (8) cannot be pressed in aid for collecting further evidence which really can be called in aid if further evidence is discovered after the filing of the charge- sheet or the police report on the completion of the investigation. Unless cognizance has been taken, sub-sec. (8) cannot be set in motion. The Magistrate cannot take cognizance on the admittedly "incomplete charge-sheet" forwarded by the police. In case the Magistrate is allowed to take cognizance on basis of incomplete charge sheet then the provisions of S.167 (2) or to say S.468 of the Cr.P.C., can always be circumvented by the prosecution and the apparent legislative intents under those provisions would not only be not effectuated but undoubtedly stultified.” Further, in Smt. Kalpana Ghosh's case (supra) it has been observed as under :- “8. In view of the aforesaid decisions and the fact that the documents under Sub Section (5) of Section 173 of the Code do not appear to have accompanied the Chargesheet submitted before the learned Magistrate, and that the Crl.Rev.No.160 of 2009 -8- learned Magistrate does not appear to have looked to the said documents the relevant Order dated 3.2.92 passed by him taking cognizance of the alleged offence could not clearly to have said to be according to law, and is accordingly liable to be quashed.” The petition, therefore, deserves to be dismissed on the following counts :- i) For concealment of material facts from the court; ii) No prejudice has been caused to the petitioner as he was already aware of the FIR and had placed it on the record of this court; iii) the court is not convinced that the petitioner was not given the copy of the FIR and it apparently seems that some mischief has been played before the learned trial court during this interregnum i.e. after submission of challan in 2006 and the application submitted by the petitioner in March 2008 asking for a certified copy of the FIR. For the aforesaid reasons, the petition being devoid of any merit is dismissed. 15.9.2009 (MAHESH GROVER) JUDGE dss