IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-10512 of 2009 (O&M) Date of decision: 22nd April, 2009 Sarabjit Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Pankaj Bhardwaj, Advocate for the petitioner. Mr. Anter Singh Brar, Deputy Advocate General Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present petition has been filed by Sarabjit Singh, who is confined in Sub Jail, Muktsar, under Section 482 Cr.P.C. seeking quashing of impugned order dated 2nd April, 2009 (Annexure P-9) passed by the Sessions Judge, Muktsar. It has further been prayed that order dated 26th March, 2009 (Annexure P-8) passed by the Sub Divisional Judicial Magistrate, Malout be modified. Before this prayer is dealt with and import of the orders assailed, is examined, it will be necessary to notice the brief facts. Hardeep Kaur was married with the petitioner. It is alleged that petitioner was having illicit relations with one Harpreet Kaur. Brother of the deceased has levelled allegations that the petitioner in connivance with Harpreet Kaur, with whom he was having illicit relations, had murdered Hardeep Kaur. Admittedly, she died due to fire arm injury. The matter was investigated. On 3rd March, 2009, the investigating agency found the petitioner to be guilty and submitted a Criminal Misc. No. M-10512 of 2009 (O&M) report under Section 173 Cr.P.C. against him in the Court of Sub Divisional Judicial Magistrate, Malout. Within next 22 days, the investigating agency filed another report, which they have termed as report under Section 169 Cr.P.C., to say that petitioner is not guilty and he has not murdered his wife. The story coined in the subsequent report submitted by the police is that Hardeep Kaur was murdered by some unknown persons. Sub Divisional Judicial Magistrate, Malout, on 26th March, 2009, took into consideration the fact that the police is not seeking further remand of the petitioner, and therefore, ordered him to be released on bail, subject to furnishing of surety bonds in the sum of Rs.2.00 lakh with one local surety and directed him to appear before learned Additional Sessions Judge, Muktsar on 2nd April, 2009. Accused appeared before the Court of Additional Sessions Judge, Muktsar on 2nd April, 2009. Impugned order (Annexure P-2) was passed by the Additional Sessions Judge, Muktsar. The Court came to the conclusion that there always remained dispute between the deceased and the accused husband, as husband was having illicit relations with Harpreet Kaur. The Court also relied upon the evidence gathered by prosecution under Section 173 Cr.P.C. (challan) that Sarabjit Singh has committed murder of Hardeep Kaur with .32 bore pistol, when she was lying on the bed. The Additional Sessions Judge, Muktsar, held that the Magistrate had invoked provisions of Section 209 Cr.P.C. while committing the case. It further held that in the circumstances of the case, the case should have been committed under Section 208 Cr.P.C. Therefore, the matter was remanded with the direction to the Sub Divisional Judicial Magistrate to follow the provisions of Section 208 Cr.P.C. Mr. Pankaj Bhardwaj appearing for the petitioner has stated that once subsequent report was filed by the police on 26th March, 2009, where petitioner was absolved of the guilt and was held innocent, the Court of Sub Divisional Judicial Magistrate could not order appearance of the petitioner before the Court of Additional Sessions Judge. It is submitted that there were only two options with the Court of Sub Divisional Judicial 2 Criminal Misc. No. M-10512 of 2009 (O&M) Magistrate, either to order further investigation or to take cognizance under Section 190 Cr.P.C. Mr. Bhardwaj has further stated that procedure followed by the Courts below is against the mandate of law laid by Hon'ble Apex Court in ‘Abhinandan Jha and others v. Dinesh Mishra’ AIR 1968 Supreme Court 117. He has relied upon para 19 of the judgment to say that Magistrate has no power to direct the police to submit a chargesheet, when the police has submitted a final report to the effect that no case is made out to send the accused for trial. There can be no quarrel with the proposition of law propounded in Abhinandan Jha’s case (supra). There is a fallacy in the arguments advanced by the counsel for the petitioner. In the present case, police had not submitted only one report regarding innocence of the petitioner. Police has firstly found the petitioner guilty and submitted a report under Section 173 Cr.P.C. on 3rd March, 2009. Subsequently, if another report is submitted by invoking provisions of Section 169 Cr.P.C., even though Section 169 Cr.P.C. is written, the same is to be treated as a report under Section 173 (8) Cr.P.C., as it is a result of further investigation. Once report under Section 173 Cr.P.C. and subsequent report under Section 173(8) Cr.P.C. has been submitted, it is for the Court to decide as to on which report reliance is to be placed. Therefore, the learned Court of Sub Divisional Judicial Magistrate has rightly committed both the reports along with the accused to the Court of Additional Sessions Judge, Muktsar. The effect of this could not be comprehended by the Additional Sessions Judge, Muktsar while it remanded the matter with observation that the Magistrate should invoke Section 208 Cr.P.C. There was no need to invoke provisions of Section 208 Cr.P.C. as the Magistrate was not taking cognizance in a subsequent report alleged to be submitted under Section 169 Cr.P.C. Accordingly, that part of the order of Additional Sessions Judge, Muktsar where it has mentioned that matter is remanded back to the Court of Sub Divisional Judicial Magistrate to conduct the case under Section 208 Cr.P.C. is set aside. 3 Criminal Misc. No. M-10512 of 2009 (O&M) To clarify the first report, being under Section 173 Cr.P.C. and subsequent report of innocence under Section 173(8) Cr.P.C., both are to be placed before the Additional Sessions Judge, and the accused is to be tried after the presumptive opinion is formulated by the trial Court. The Court of Additional Sessions Judge will take into consideration both the reports filed under Section 173 Cr.P.C. and Section 173(8) Cr.P.C. to formulate its opinion and to proceed in accordance with law. As a matter of abundant caution, it is stated that nothing said herein shall be construed as an expression on merits of the case. With the observations made above, present petition is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE April 22, 2009 rps 4