CRM No. M-22736 of 2010 and another connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : November 29, 2011 CRM No. M-22736 of 2010 Ramesh Kumar @ Babbu and another .... PETITIONERS Vs. State of Punjab ..... RESPONDENT CRM No. M-27909 of 2010 Om Parkash and another .... PETITIONERS Vs. State of Punjab ..... RESPONDENT CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Vikas Mehsempuri, Advocate, for the petitioners (In CRM No. M-22736 of 2010) Mr. Sukhjit Singh, Advocate, and Mr. Deepak Garg, Advocate, for the petitioners (In CRM No. M-27909 of 2010) Mr. G.S.Brar, AAG, Punjab. Mr. Ashok Sehgal, Advocate, for applicant in Crl. Misc. No. 11276 of 2011 in Crl. Misc. No. M-22736 of 2010 * * * AUGUSTINE GEORGE MASIH, J. (ORAL) By this order, I propose to dispose of Crl. Misc. No. M-22736 of 2010 titled as Ramesh Kumar @ Babbu and another vs. State of Punjab and Crl. Misc. No. M-27909 of 2010 titled as Om Parkash and another vs. State of Punjab, as in both these petitions, the challenge is to CRM No. M-22736 of 2010 and another connected case 2 the order dated 21.08.2009 (Annexure P-7) passed by the Chief Judicial Magistrate, Barnala, whereby charge under Sections 451 and 380 IPC has been framed against the petitioners and the order passed by the Revisional Court dismissing the petitions. In Crl. Misc. No. M-22736 of 2010, the order passed by the learned Additional Sessions Juge, Barnala, is dated 09.04.2010 (Annexure P-8) and in Crl. Misc. No. M-27909 of 2010, the said order is dated 21.05.2010 (Annexure P-8). It is the contention of the counsel for the petitioners in Crl. Misc. No. M-22736 of 2010 that both the petitioners have been merely roped in on a statement given by Smt. Pushpa, who is the complainant who had lodged the FIR, where she is alleged to have stated that the keys were stolen from the house of her younger sister Santosh Kumari in connivance with the petitioners by her brother Om Parkash and nephew Raj Kumar. His further contention is that after stealing the keys of the shop, they have installed an electricity meter through the Electricity Department and have also put their own lock on the said shop. He contends that it is an admission on the part of the complainant that the possession of the house is with Santosh Kumari daughter of Late Sh. Ganga Bishan and she, in her statement under Section 161 Cr.P.C., has not named the petitioners nor has there been any mention with regard to the connivance or involvement of the petitioners in the commission of offence. Reference has been made to the statement recorded under Section 161 Cr.P.C. of Santosh Kumari (Annexure P-6). He, accordingly, states that whatever statements have been recorded by the Investigating Agency, reliance whereof has been placed by the Courts below in framing the charges against the petitioners, are all hearsay evidence, as is apparent from the FIR and the statements given by others and, therefore, the only statement, which would be relevant CRM No. M-22736 of 2010 and another connected case 3 for the framing of charges, is the statement of Santosh Kumari, which does not disclose the involvement of the petitioners at all. He, accordingly, prays for setting aside the impugned order dated 21.08.2009 (Annexure P-7) and order dated 09.04.2010 (Annexure P-8) qua the petitioners. Counsel for the petitioners in Crl. Misc. No. M-27909 of 2010 submits that there was an agreement between the parties with Santosh Kumari dated 20.08.2007, according to which, petitioner No. 1-Om Parkash became the owner of the shop/godown exclusively w.e.f. 15.07.2000. He further contends that a civil suit was preferred by him on the basis of the agreement and, therefore, the present charges against the petitioners under Sections 451 and 380 IPC cannot sustain. On the other hand counsel for the respondent-State submits that all the four petitioners are named in the FIR and the statements have also been recorded by the Investigating Agency where all four have been attributed the role, as mentioned in the FIR. He, accordingly, states that the charges have been rightly framed against the petitioners. I have heard the counsel for the parties and have gone through the records of the case. FIR is based on the information received by Pushpa Malhotra- complainant from her sister Santosh Kumari. The most relevant statement with regard to the involvement of the petitioners prima facie would be, therefore, of Santosh Kumari, which has been appended as Annexure P-6 with the petition, from whose house theft of keys of the shop have been committed by the accused and thereafter trespass. A perusal of the said statement leaves no manner of doubt that it was only Om Parkash, brother of Santosh Kumari and the complainant Pushpa Malhotra, and their nephew Raj Kumar, who had come to the house where Santosh Kumari is CRM No. M-22736 of 2010 and another connected case 4 residing, and committed theft of keys from the house and thereafter had broken the lock of the shop and put a new lock and closed the passage from stairs through a mason. Not a word has been mentioned with regard to theft of the keys or the trespass committed by Ramesh Kumar @ Babbu and Rajesh Kumar @ Bittu. Other statements recorded by the prosecution are based on the information supplied by Santosh Kumari. Petitioners having not been named by Santosh Kumari cannot be, therefore, charged for an offence that is alleged to have been committed by them i.e.for trespass under Section 451 IPC. In view of the above, the impugned order dated 21.08.2009 (Annexure P-7) and order dated 09.04.2010 (Annexure P-8) qua the petitioners cannot sustain and are hereby quashed and, accordingly, Crl. Misc. No. M-22736 of 2010 is allowed. As regards petitioners Om Parkash and Raj Kumar in Crl. Misc. No. M-27909 of 2010 is concerned, they have been specifically named by Santosh Kumari and further the agreement, on which reliance has been placed, it has been brought to the notice of the Court that the suit preferred by them stands dismissed by the Civil Judge (Junior Division), Barnala on 05.08.2011, against which appeal is pending and in any case, these are all matters of evidence and would be taken as a defence by the accused during the trial, which cannot be gone into at this stage. Accordingly, there is no merit in Crl. Misc. No. M-27909 of 2010 and the same stands dismissed. (AUGUSTINE GEORGE MASIH ) November 29, 2011 JUDGE pj CRM No. M-22736 of 2010 and another connected case 5