Crl. Misc. No. M-18607 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * Crl. Misc. No. M-18607 of 2009 Date of decision : October 29, 2009 * * * * * Dharampal ............Petitioner Versus Jai Singh and another ...........Respondents * * * * * CORAM: HON'BLE MR. JUSTICE JORA SINGH * * * * * Present: Mr. Yashpal, Advocate for the petitioner. Mr. N.S Dhillon, Advocate for respondent no.1. Mr. Deepak Girotra, AAG, Haryana for performa respondents. * * * * * JORA SINGH, J. Dharam Pal filed this petition under Section 482 Cr.P.C for quashing of Criminal Complaint No.815/04 titled as Jai Singh vs. Dharam Pal under Sections 167, 218, 420, 467, 468, 471 IPC pending before Additional Judicial Magistrate First Class, Kurukshetra (Annexure P-1) and summoning order dated 21.7.2005 (Annexure P-2) passed by Judicial Magistrate First Class, Kurukshetra. Crl. Misc. No. M-18607 of 2009 2 FIR No.165 dated 14.7.2004 was registered under Sections 323, 324, 325, 148, 149, 506 IPC against Jai Singh and another. In the same FIR, a cross-case was registered against Dharam Pal and others under Sections 323/325/506/34 IPC. Dharam Pal, ASI, petitioner was the Investigating Officer. In view of the report of Dr. A.C Nagpal, offence punishable under Section 326 IPC was added. Jai Singh filed private complaint under Sections 167, 218, 420, 467, 468, 471 IPC (Annexure P-1) against the present petitioner namely Dharampal, ASI and Dr. A.C Nagpal. Petitioner and Dr. A.C Nagpal were summoned to face trial under Sections 420/467/468/471 IPC vide order (Annexure P-2). Against order (Annexure P-2), revision petition was instituted by Dr. A.C Nagpal and the same was accepted vide order dated 16.6.2007 (Annexure P-3) passed by Additional Sessions judge Fast Track Court, Kurukshetra. Present petitioner had also filed revision against summoning order dated 21.7.2005 (Annexure P-2) but revision on behalf of the petitioner was dismissed on the ground of delay. Notice of motion was issued. Reply was filed by the State and respondent no.1. Learned counsel for the petitioner argued that FIR No.165 was registered against Jai Singh and another. Cross-case was registered against Dharam Pal and others. Petitioner was the Investigating Officer. As per report of Dr. A.C Nagpal, offence punishable under Section 326 IPC was added. Allegation of the present respondent is that offence punishable under Section 326 was Crl. Misc. No. M-18607 of 2009 3 added with ulterior motive. Private complaint was instituted by Jai Singh against the petitioner and Dr. A.C Nagpal. Summoning order was challenged by Dr. A.C Nagpal. Revision on behalf of Dr. A.C Nagpal was accepted. Petitioner was in service and failed to file revision against the summoning order within the period of limitation. Revision on behalf of the petitioner was dismissed being time barred. Requested that revision of the petitioner be decided on merits. Direction be given to the revisional Court. State counsel argued that offence punishable under Section 326 IPC was added in view of the report of Dr. A.C Nagpal. Revision against summoning order on behalf of Dr. A.C Nagpal was accepted. Petitioner was not at fault. No objection if direction is given to the Additional Sessions judge Fast Track Court, Kurukshetra to decide the representation of the petitioner on merits. Counsel for the complainant argued that revision of the petitioner was rightly dismissed because the same was time barred but frankly admitted that offence punishable under section 326 IPC was added in view of the report of Dr. A.C Nagpal and revision in view of the report of Dr. A.C Nagpal was accepted. Learned counsel for respondent no.2 half heartedly stated that he has no objection if direction is given to Additional Sessions judge Fast Track Court, Kurukshetra to decide the representation of the petitioner on merits. FIR No.165 dated 14.7.2004 was registered under Sections 323, 324, 325, 148, 149, 506 IPC against Jai Singh and another. In the same FIR, a cross-case was registered against Dharam Pal and others under Sections 323/325/506/34 IPC. In view Crl. Misc. No. M-18607 of 2009 4 of the report of Dr. A.C Nagpal, offence punishable under Section 326 IPC was added. Allegation of the respondent-complainant is that offence punishable under Section 326 was added with ulterior motive. Private complaint was instituted by Jai Singh against Dharam Pal, ASI and Dr. A.C Nagpal. Annexure P-1 is the copy of the complaint. Petitioner and Dr. A.C Nagpal were summoned vide order Annexure P-2 dated 21.7.2005 to face trial. Order Annexure P-2 dated 21.7.2005 was challenged by Dr. A.C Nagpal. Revision on behalf of Dr. A.C Nagpal was accepted vide judgment dated 1.6.2007. Annexure P-3 is the copy of the order. Against summoning order Annexure P-2, present petitioner had filed revision but revision was dismissed vide order Annexure P-4 being time barred. Offence punishable under Section 326 IPC was added as per report of Dr. A.C Nagpal. Annexure R-1/1 is the report of Dr. A.C Nagpal. No bony injury was detected in case of injuries nos. 1, 2 and 3. Annexure R-1/2 is the report of Dr. A.C Nagpal to the effect that injury on the scalp of Gulab Singh injury is bony deep. Injury could have caused damage to brain. Possibility of injury having caused damage to brain cannot be ruled out. Petitioner was the Investigating Officer but petitioner had added offense punishable under Section 326 IPC as per report of Dr. A.C Nagpal. Revision on behalf of Dr. A.C Nagpal to challenge the summoning order, Annexure P-2 was accepted. No allegation of the respondent-complainant that report of the doctor was forged or fabricated by the petitioner. Case of the present petitioner is on Crl. Misc. No. M-18607 of 2009 5 better footing then the case of Dr. A.C Nagpal. Sometimes, FIR is registered under different Sections of the IPC. Later on with the collection of evidence or report of doctorl or X-ray report, offence punishable under Section 326 or 307 is added. Nothing to presume that offence was added with some ulterior motive. in case offence is added then evidence is to be led in the presence of the accused. Court is to scrutinize the evidence where evidence is sufficient to convict the accused under Section 326 or 307 IPC with the amendment of charge punishable under Section 326 or 307 IPC Court is not to convict the accused under Section 326 or 307 IPC. Evidence is to be led by the prosecution in the presence of the accused or the evidence is to be scrutinized by the Court. Court is to see whether the evidence is sufficient to convict the accused under Section 326 or Section 307 IPC. When the revision by Dr. A.C Nagpal was accepted then I am of the opinion that revision of the present petitioner requires to be decided on merits and not on technicalities i.e the revision is time barred. As a sequel of the above discussion, application under Section 5 of the Limitation Act to condone the delay in filing revision at the instance of present petitioner is accepted. Delay in filing the revision at the instance of the petitioner stands condoned. Case is remanded back to the Court of Additional Sessions Judge Fast Track Curt, Kurukshetra with a direction to decide Crl. Rev. No.1 of 2009 instituted on 8.1.2009 by Dharam Pal, ASI against Jai Singh and State of Haryana, on merits after hearing Crl. Misc. No. M-18607 of 2009 6 both the parties. Parties are directed to appear before the learned Additional Sessions judge Fast Track Court, Kurukshetra on 16.11.2009. After hearing counsel for the parties, fresh order is to be passed to dispose of revision petition by ASI, Dharampal. October 29, 2009 ( JORA SINGH ) ritu JUDGE