Crl. Misc. No. M-19712 of 2009 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-19712 of 2009(O&M) Date of Decision: February 15,2011 Satnam Singh and others .................................................... Petitioners Versus State of Punjab and others ................................................. Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Malkeet Singh, Advocate for the petitioners. Mr. Munish Kumar, AAG, Punjab. Mr. Puneet Bali, Advocate for respondent Nos. 2 and 3. ... RITU BAHRI, J. This petition under Section 482 of the Code of Criminal Procedure is for quashing of challan (Annexure P-12) in FIR No. 298 dated 17.12.2007 registered under Sections 307, 506, 323, 148, 149 IPC read with Sections 25, 27, 54, 59 of Arms Act at Police Station Banga District Nawanshahr qua the petitioners and inquiry report dated 2.5.2008 (Annexure P-10) and recommendation of Deputy Inspector General Police, Jalandhar Range, Jalandhar, dated 26.6.2008 (Annexure P-11) for submission of the challan against the petitioners. Crl. Misc. No. M-19712 of 2009 (O&M) [ 2 ] Brief facts of the case are that Budh Singh and his brother Kuldeep Singh are NRI living in U.K. and they are owners of land measuring 78 kanals 6 marlas situated in village Gunachaur Tehsil and District Nawanshahr. One Raghbir Singh Lalli son of Sarwan Singh of village Lellian, Tehsil Garshankar, District Hoshiarpur, who is also an NRI and residing in U.K. entered into an agreement with Kuldeep Singh and Budh Singh to purchase the aforesaid land vide agreement to sell dated 7.6.2005 which was executed while in U.K. As per the agreement, the sale price was `23.50 lacs per acre. A sum of `50 lacs was paid in cash as earnest money at the time of execution of the agreement to sell and the remaining sale consideration was to be paid partially within one month and remaining amount was agreed to be paid in four equal instalments at 6 monthly intervals. As per the agreement, the vendor was to deliver possession of the land to the vendee immediately after its sale. `12 lacs was paid and the rest of `38 lacs was to be deposited in the account of the vendors Budh Singh and Kuldeep Singh as per understanding in India within one month, but the vendee did not deposit `38 lacs. The vendors Budh Singh and Kuldeep Singh got a notice served from their solicitor at U.K. to vendee Raghbir Singh Lalli informing him cancellation of the agreement to sell dated 7.6.2006 for breach of the condition of deposit of `38 lacs. Vendee Raghbir Singh Lalli filed a suit for permanent injunction restraining the vendors from alienating the land subject matter of the agreement to any other person. Application under Order 39 Rule 1 and 2 for ad-interim injunction was dismissed by the Additional Civil Judge, Senior Division, Nawanshahr vide order dated 21.9.2006. This order was, however, modified vide order dated 26.3.2008 that the vendors would not alienate the Crl. Misc. No. M-19712 of 2009 (O&M) [ 3 ] land in dispute during the pendency of the suit except with prior permission of the court. The vendor Kuldeep Singh also filed a suit for permanent injunction restraining Mandhir Singh son of Kishan Singh attorney of Raghbir Singh Lalli from forcibly and illegally dispossessing the plaintiff or interfering in any manner in his peaceful possession on 24.12.2005. Kuldeep Singh vendor also filed an application under Order 39 Rule 1 and 2 along with the suit for grant of interim injunction which was disposed of by the trial Court with a direction to both the parties to maintain status quo regarding possession during the pendency of the suit. FIR No. 33 dated 2.2.2006 under Sections 380, 447, 427, 506 and 34 IPC was registered at Police Station Banga against Mandhir Singh and Randhir Singh (attorney of Raghbir Singh Lalli) for illegally trespassing into the land/haveli of the vendors. On 17.12.2007, Budh Singh was attacked by Mandhir Singh Chatha along with respondent Nos. 5 to 9 and other 50-60 persons when he had gone to cultivate his land. FIR No. 298 dated 17.12.2007 was registered at Police Station Banga. Respondent Nos. 3 to 9 were taken into custody from the spot with weapons. Four persons were also apprehended from the side of the petitioners i.e. Budh Singh, Satnam Singh, Malkeet Singh and Gurpreet Singh for resorting to firing. After the inquiry, the SHO, Police Station Banga came to the conclusion that it was respondent Nos. 3 to 9 who were the aggressors and they attacked the petitioners with the intention to forcibly take possession of the land. The petitioner party had fired the shots in their self defence. Challan has been presented against respondent Nos. 3 to 9 on 23.12.2007. Cancellation report against the petitioners was prepared and submitted along with the challan. An application for discharging the petitioners Budh Singh, Satnam Singh, Crl. Misc. No. M-19712 of 2009 (O&M) [ 4 ] Malkeet Singh and Gurpreet Singh was submitted. The Sub Divisional Judicial Magistrate ordered the discharge of Budh Singh, Satnam Singh, Malkeet Singh and Gurpreet Singh. The case against Mandhir Singh was committed to the Court of Additional Sessions Judge. Charges under Section 307, 326, 323, 148, 149 IPC read with 27/54/59 of the Arms Act have been framed and the accused are facing trial. After the discharge of the petitioners, on an application filed by respondent No.2, son of Mandhir Singh, re-investigation was done and Superintendent of Police, Head Quarter, Hoshiarpur, recommended that challan be also presented against the named accused from the side of Budh Singh party. The Deputy Inspector General of Police, Jalandhar Range recommended that the challan should also be presented against the accused mentioned in FIR from the side of petitioners party vide his letter dated 26.6.2008. The SHO, Police Station, Banga, accordingly prepared the challan against the petitioners on 25.1.2009 (Annexure P-12). The submission of the challan on the basis of fresh inquiry is being challenged in this petition. Mr. Malkeet Singh, learned counsel for the petitioners, has argued that after completion of the investigation under Section 173 (2) Cr.P.C. the police has a right to further investigation only under Section 173 (8) Cr.P.C. But no fresh investigation or reinvestigation is permissible. Civil proceedings are pending in which Raghbir Singh Lalli had filed a suit on 1.12.2006 for restraining the vendors from alienating the land. His ad- interim injunction application was declined but later on it was modified to the extent that Budh Singh and Kuldeep Singh vendors would not alienate the land without the permission of the court. Likewise, in the suit filed by Kuldeep Singh for seeking permanent injunction restraining Raghbir Singh Crl. Misc. No. M-19712 of 2009 (O&M) [ 5 ] Lalli from interfering in his possession is also pending and parties have been directed to maintain status-quo. If the respondents were not satisfied with the investigation conducted by the investigating officer, they had the remedy to file a complaint under Section 200 Cr.P.C. None of the persons from the side of the accused party suffered any injury whereas three persons were injured from the side of the petitioner. Therefore, the inquiry report dated 2.5.2008 and subsequent submission of the challan against the petitioner is an abuse of process of law. In the reply filed by respondents No. 2 and 3 it has been specifically stated that the petitioners have challenged in the petition enquiry report dated 2.5.2008 submitted by the Superintendent of Police (HQ), Hoshiarpur, and the recommendations of the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, vide which the Deputy Inspector General of Police has recommended filing of challan against the petitioners. The Investigating Agency has approached the Court of learned Sub Divisional Magistrate, Nawanshahar, by filing an application to conduct re-investigation of the case. The above said application was heard on 19.3.2008 and in view of Section 173(8) Cr.P.C. the Sub Divisional Judicial Magistrate, Nawanshahar, directed further investigation in the matter since the offence under Section 307 IPC was made out in the FIR. The case was committed to the Court of learned Additional Sessions Judge, Nawanshahar. After a thorough investigation a recommendation has been made for presenting the challan against the petitioners. No malafides have been alleged against the senior officials like Superintendent of Police and Deputy Inspector General of Police as initially the Investigating Agency had Crl. Misc. No. M-19712 of 2009 (O&M) [ 6 ] filed cancellation report in the present case. Reference is being made to a report from Naib Tehsildar, Banga (Annexure R2/7) to contend that the possession over the disputed land is of Shri Mandhir Singh son of Kishan Singh. Ultimately, in a suit which was filed for permanent injuction and on an application under Order 39 Rules 1 & 2 CPC the learned Civil Judge (Junior Division), Nawanshahar, on 8.2.2006 ordered the parties to maintain status-quo regarding possession of the suit land. An application dated 16.1.2006 was filed by Kuldip Singh before the Deputy Commissioner, Nawanshahar (Annexure R2/5). It was mentioned in the application that Mandhir Singh son of Kishan Singh along with 50-60 armed men had forcibly grabbed the possession of their land and haveli. He is a non- resident and possession of the land and haveli be restored to him. As both the parties are residing in United Kingdom and Mandhir Singh has the Power of Attorney of a vendee, it is alleged by the respondents that Mandhir Singh was in possession and has also cultivated the land by sowing wheat crop. Statement of Shri Satnam Singh has been recorded before the Inquiry Officer i.e. Superintendent of Police (HQ). This statement is part of the report of the Investigating Agency (Annexure R2/6). Reference is being made to the report of Naib Tehsildar, Banga, dated 18.1.2006 (Annexure R2/7) where he has categorically held that Mandhir Singh is in possession of the land in dispute. To the similar effect is the report of Sub Divisional Magistrate dated 31.1.2006 (Annexure R2/8). In this background of the facts on 17.12.2007 Mandhir Singh was attacked by Budh Singh along with some other men armed with deadly weapons who entered into the suit land to take forcible possession. An F.I.R. No. 298 dated 17.12.2007 was registered at Police Station, Banga, Nawanshahar. Thus, it was a cross Crl. Misc. No. M-19712 of 2009 (O&M) [ 7 ] version where both the parties were picked by indulging in fight. In the reply filed by the Superintendent of Police on behalf of respondent No.1, it has been admitted that F.I.R. No. 298 dated 17.12.2007 under Sections 307, 506, 323, 148, 149 IPC and 25/27/54/59 Arms Act was registered against Mandhir Singh, Randhir Singh, Raj Kumar, Harjit Singh, Dharamjit Singh, Balwant Singh, Darbara Singh and Sarbjit Singh. The matter is fixed for trial on 7.1.2010. In the cross case registered against Budh Singh, Satnam Singh, Malkiat Singh, Makhan Singh, Sodhi Singh, Ranjit Singh and Gurpreet Singh, Budh Singh, Satnam Singh, Malkiat Singh and Gurpeet Singh have been discharged by the Court of learned Sub Divisional Judicial Magistrate, Nawanshahar vide order dated 27.12.2007. Against the remaining accused, challan was presented. After presentation of the challan, trial is progressing in the Court of Additional Sessions Judge, Shaheed Bhagat Singh Nagar. On re-investigation, challan has been presented against the petitioners and their co-accused and the learned Court has ceased of the matter. Heard learned counsel for the parties. Mr. Malkeet Singh, counsel for the petitioners, has argued that once the petitioner had been discharged by the Court of Sub Divisional Judicial Magistrate, Nawanshahar, vide order dated 27.12.2007 no fresh inquiry could be initiated by the Superintendent of Police. The presentation of the challan on the basis of re-investigation is a misuse of process of Court. Has placed reliance on Babubhai v. State of Gujarat and others 2010 (4) R.C.R. (Criminal) 311 and Keki Hormusji Gharda & Others v. Mehervan Rustom Irani & Another 2009 (3) R.C.R. (Criminal) 979. After the order of discharge was passed the petitioners cannot be tried again, Crl. Misc. No. M-19712 of 2009 (O&M) [ 8 ] therefore, the proceedings are liable to be quashed in view of the Supreme Court judgment in S. Khushboo v. Kanniammal & Another, 2010 (2) R.C.R. (Criminal) 793. Mr. Puneet Bali, counsel for respondent Nos. 2 and 3 has vehemently argued that after the order of discharge was passed the Investigating Agency had approached the Court of learned Sub Divisional Judicial Magistrate, Nawanshahar, for permission to conduct re- investigation of the case. Vide order dated 19.3.2008 permission was duly granted. This fact has not been denied or refuted by the petitioners. In view of this factual position, the proceedings initiated after presentation of challan are not an abuse of process of the Court. This fact has been mentioned in the reply filed by the official respondents. It has been mentioned that the complainant party i.e. Anmoldeep Singh submitted an application and an inquiry was conducted thereafter by the Superintendent of Police (HQ), Hoshiarpur. After this inquiry, it was recommended by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, vide his letter dated 26.6.2008 to present the challan against the petitioners. The Supreme Court in Babubhai v. State of Gujarat and others 2010 (4) R.C.R. (Criminal) 311 has considered the scope of further investigation and re-investigation under Section 173(8) Cr.P.C. It has been held that if the Court comes to a conclusion that the investigation has not been carried out fairly a direction for investigation to an independent agency can be given. The scheme of investigation under Section 173(8) Cr.P.C. provides for further investigation and not for re-investigation. It is evident that in exceptional circumstances in order to prevent miscarriage of justice, Court may direct for re-investigation de novo. This view of the Supreme Court has been emphasised in K.Chandrasekhar v. State of Kerala & Others 1998 Crl. Misc. No. M-19712 of 2009 (O&M) [ 9 ] (2) R.C.R. (Criminal) 719: (1998) 5 SCC 223; Ramachandran v. R. Udhayakumar & Others 2008 (3) R.C.R. (Criminal) 47: 2008 (3) R.A.J. 547: (2008) 5 SCC 413; and Nirmal Singh Kahlon v. State of Punjab 2009 (1) R.C.R. (Criminal) 3: 2008 (6) R.A.J. 555: (2009) 1 SCC 441; Mithabhai Pashabhai Patel & Others v. State of Gujarat 2010 (1) R.C.R. (Criminal) 171: 2009 (6) R.A.J. 600: (2009) 6 SCC 332; and Kishan Lal V. Dharmendra Bafna 2009 (3) R.C.R. (Criminal) 828: 2009 (4) R.A.J. 537 that where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Section 173(8) Cr.P.C., even transferring the investigation to an independent agency, rather than directing a re- investigation. The order dated 19.3.2008 does not suffer from any illegality as it has ordered further investigation as contemplated under Section 173(8) Cr.P.C. The subsequent presentation of the challan vide Annexure P-12 dated 17.12.2007 is in accordance with law. This criminal miscellaneous is dismissed. 15.2.2011 ( RITU BAHRI ) Rupi JUDGE