Criminal Misc. No. M-8804 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Misc. No. M-8804 of 2008 Date of Decision: 6.8.2008 Balkar Singh …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. G.S.Sidhu, Advocate for the petitioner. Mr. Sunil Nehra, Assistant Advocate General, Haryana, for the respondent-State. Kanwaljit Singh Ahluwalia, J. (Oral) On 28.4.2008, a Co-ordinate Bench of this Court passed the following order:- Present: Mr. G.S.Sidhu, Advocate for the petitioner. Mr. Madan Gupta, Sr. DAG Haryana. Learned State counsel contends that he is not having he paper book of this case with him and that being so, he feels handicap to argue the case. Learned counsel for the petitioner is directed to supply copy the paper book to the learned State counsel in the course of the day. Criminal Misc. No. M-8804 of 2008 2 Learned counsel for the petitioner contends that the petitioner in compliance with the order dated 08.04.2008 has surrendered before the learned trial Court on 11.04.2008 at 10.00 a.m. He is directed to produce certified copy of the order showing that the order dated 08.04.2008 has been complied with. Adjourned to 14.05.2008. Sd/- (HARBANS LAL) JUDGE 28th April, 2008”. Order dated 28.4.2008 was followed by another order passed by this Court on 26.5.2008. The same is also reproduced below:- Present: Mr. G.S.Sidhu, Advocate for the petitioner. Mr. Tarunveer Vashist, AAG, Haryana. Learned counsel for the petitioner has produced the certified copy of the order dated 11.04.2008 which reveals that the petitioner, in compliance with the order dated 08.04.2008 passed by this Court had surrendered before the trial Court on 11.04.2008 and has joined the proceedings. The certified copy of the order dated 16.04.2008 revealed that the petitioner has been charge-sheeted and now, the case is fixed for 30.05.2008 for recording the evidence of the Criminal Misc. No. M-8804 of 2008 3 prosecution. The relevant part of Annexure P-3 of the order dated 30.07.2007 passed by the Court of learned Sessions Judge, Hisar reads in the following terms: “A perusal of challan shows that Balkar Singh @ Balla son of Prithi Singh was not challaned whereas, in his place his brother Dhanna Singh has been challaned by the police. Affidavits of Madan Lal son of Atma Ram, Angrej Kaur wife of Prithvi Singh, Simranjit Kaur wife of Balkar Singh and Prithvi Singh son of Sawan Singh were produced during investigation before the Investigating Officer regarding innocence of Balkar Singh @ Balla that he was not of such type. That is why, it seems that he has not been challaned on the basis of all these affidavits but now,investigating officer Rajbir Singh, SI when appeared as PW1, has stated that accused Balkar Singh was in the conscious possession of the said contraband. So, in these circumstances, it is made out that accused Balkar Singh is the real accused and that Dhanna Singh has been unnecessary challaned causing Criminal Misc. No. M-8804 of 2008 4 harassment to him. So intimation is also required to be sent to Superintendent of Police, Sirsa for taking necessary action against the erring officials in manipulating the case in this way. Accordingly, it is ordered that accused Dhanna Singh is discharged. Now accused Balkar Singh @ Balla son of Prithi Singh, resident of Village Chatha, be summoned for 31.08.2007 to face trial in this case.” Dhanna Singh, who was challaned by the police and was facing trial after having been charge- sheeted has been discharged by the Court of learned Sessions Judge, Sirsa vide his order dated 30.07.2007, and only Balkar Singh alias Balla, who was found innocent during the investigation and placed in column No.2 of the report under Section 173 of Cr.P.C has been ordered to face trial. In this order, it has been mentioned that now, investigating officer Rajbir Singh SI when appeared as PW-1, has stated that accused Balkar Singh was in the conscious possession of the said contraband. It implies that on the basis of the ipse dixit of Rajbir investigator, the learned trial Court has discharged Dhanna Singh and directed Balkar Singh @ Balla to face trial. Criminal Misc. No. M-8804 of 2008 5 Let the comments of the learned Presiding Officer be called for the next date, as to under which provision of law, he discharged the accused Dhanna Singh, who was facing trial. Adjourned to 6th August, 2008. Sd/- (HARBANS LAL) JUDGE 26th May, 2008”. In response to the order dated 26.5.2008, the District & Sessions Judge, Sirsa has submitted the following report:- “...that in this case initially, FIR was registered against accused Balkar Singh that on 11.1.2004 when Rajbir Singh SI/SHO, Police Station Sadar Dabwali along with other police officials was present at T-Point of village Chatha where he received a secret information against Balkar Singh alias Balla to the effect that he had brought poppy-husk in huge quantity during the previous night and had kept the same under the heap of cotton sticks and that he could take out the said bags from that place for smuggling and in case an immediate raid was conducted then he could be apprehended. Upon which SI Rajbir Singh summoned Manjit Singh Sarpanch and he was joined in the police party and when they were going towards the Dhani of Balkar Singh, they saw that accused Balkar Singh alias Criminal Misc. No. M-8804 of 2008 6 Balla was taking out a bag from underneath the cotton sticks and on seeing the police party he fled away and that he was earlier known by Manjit Singh Sarpanch and HC Jaibir Singh. On search Rajbir Singh SI found eight bags of choora-post lying under the heap of cotton sticks. 2. That during investigation conducted by Diwan Singh ASI and Bhagwan Dass ASI some residents of the village namely Madan Lal etc. including Angrej Kaur mother of Balkar Singh, Simranjeet Kaur wife of Balkar Singh, Pirthi Singh father of Balkar Singh produced their affidavits to the effect that said choor-post belonged to Dhanna Singh and not Balkar Singh. So instead of Balkar Singh, his real brother Dhanna Singh son of Pirthi Singh, resident of Village Chattha District Sirsa was challaned by the police for the offence under Section 15/16 of the NDPS Act for allegedly retaining eight gunny bags containing 40 Kgs. of choora-post each on 11.1.2004. He was charge sheeted vide order dated 19.7.2005. Prosecution examined Rajbir Singh SI, Investigating Officer of this case, as PW1 who deposed as per version in the FIR against Balkar Singh. 3. That in view of deposition of Rajbir Singh SI PW1, the prosecution moved an application Criminal Misc. No. M-8804 of 2008 7 under Section 319 Cr.P.C. for summoning Balkar Singh alias Balla brother of accused Dhanna Singh submitting that accused Balkar Singh alias Balla was culprit in this case and so he was sought to be summoned as an accused. 4. That accused Dhanna Singh in his reply stated that according to the police only one person was seen running from the spot and that he had been falsely implicated and that the complainant also want to unnecessarily drag Balkar Singh alias Balla and sought dismissal of the application. 5. That Rajbir Singh SI, Investigating Officer when appeared as PW1 also deposed, inter-alia, to the same effect that it was accused Balkar Singh who was noticed taking out the gunny bag from underneath the cotton sticks and on seeing the police party he fled from the spot. Ruqa Ex.PB was sent by him on which FIR Ex.PB/1 was registered. 6. So in these circumstances while passing order dated 30.7.2007 on the application under Section 319 Cr.P.C., the undersigned relied upon the testimony of Rajbir Singh SI PW1 and keeping in view apparent false involvement of Dhanna Singh in this case, in the interest of justice, in good faith discharged accused Dhanna Singh and substituted accused Balkar Singh alias Balla in his place being Criminal Misc. No. M-8804 of 2008 8 actual culprit”. In view of the orders passed by this Court and the report submitted by the District & Sessions Judge, Sirsa, dated 26.7.2008 it is evident that Balkar Singh petitioner is now facing the trial. Counsel for the petitioner contends that charge has been framed against Balkar Singh on 16.4.2008. It is a matter of fact that the petitioner has been summoned to stand trial after invoking Section 319 Cr.P.C. Petitioner was found innocent and was placed in column No.2 by the Investigating Agency. The Investigating Agency has found his brother Dhanna Singh to be the real accused. Regarding discharge of Dhanna Singh, prosecution, if aggrieved, may file appropriate petition. In view of the facts and circumstances of the case, the petitioner is directed to furnish regular bail bonds to the satisfaction of the trial Court. In peculiar facts and circumstances of the case, trial Court is directed to conclude the trial within six months from today. With these observations, the present petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge August 6, 2008 “DK”