IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRM No. M-23238 of 2009 (O& M) Date of decision: 12.10.2011 Ajit Singh ......Petitioner Versus State of Punjab ......Respondent CORAM:HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. J.S. Bhatia, Advocate for the petitioner. Mr. Vishal Munjal, Addl. A.G. Punjab. Mr. Vipin Mahajan, Advocate for respondent No.2. ****** Augustine George Masih J. (Oral) Prayer in the present petition preferred under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 21, dated 07.04.2007, under Sections 302, 148, 149 IPC, Police Station Ghuman, Tehsil Batala, District Gurdaspur (Annexure P-1) and all consequential proceedings arising therefrom with a further prayer for quashing of the order dated 17.08.2007 (Annexure P- 8), vide which the petitioner has been summoned, on an application moved under Section 319 of the Code of Criminal Procedure by the prosecution, to face trial as an additional accused. It is the contention of the counsel for the petitioner that the petitioner, on investigation of the case, was not found to be involved in the offence alleged to have been committed by him and accordingly, no Challan was presented against him. He further contends that althogh the petitioner has been named in the FIR and is stated to be armed with barcha, but no overt act has been attributed to him and no injury has been caused by him to the CRM No. M-23238 of 2009 (O& M) -2- deceased or to others. He contends that a cross-case bearing DDR No.11 dated 08.04.2007 under Sections 307, 324, 303, 427, 436, 148 IPC and 27, 54, 59 of the Arms Act has been registered on the statement of Sukhwinder Singh, which is a cross-version in which name of the petitioner does not figure. His further contention is that during investigation the petitioner has been found to be not present at the spot as he was along with his wife in the shop of Prem Jewellers, Batala at the time the incident took place. He, accordingly, prays for quashing of the FIR. His further contention is that the order dated 17.08.2007 has been passed by the trail Court without taking into consideration the merits of the case. The statement made by the complainant in Court is not complete as no cross examination has been done, which cannot be termed as evidence as per Section 319 Cr.P.C. and therefore, the summoning order could not have been passed against the petitioner. He further contends that this issue has been referred to a Larger Bench of the Supreme Court in the case of Hardeep Singh Vs. State of Punjab, (SC) 2008(4) R.C.R. (Criminal) 947. His further contention is that the summoning order is passed without considering or discussing the evidence which has been produced and therefore cannot be sustained. On the other hand counsel for the respondent has raised a preliminary objection that the petitioner has approached this Court after a period of 2 years challenging the summoning order dated 17.08.2007. The Revision Petition against the said order has not been preferred and as a matter of fact charges have also been framed against the petitioner prior to his approaching the Court, which factum has not been mentioned in the present petition nor this order framing the charge against the petitioner challenged in the present petition or revision preferred against that order. Accordingly, he CRM No. M-23238 of 2009 (O& M) -3- prays for dismissal of the petition on this ground alone for supression of correct and complete facts with an intention to mislead this Court. His further submission is that the prayer in the present petition cannot be granted for the reason that the petitioner has been specifically named in the FIR and has been shown to have been armed with the weapon. Merely because the petitioner has been shown in column No.2 in the report submitted by the police under Section 173 Cr.P.C., would not be a ground enough for quashing of the FIR. Accordingly he prays for dismissal of the present petition. I have heard counsel for the parties and have gone through the record of the case. On the preliminary objection which has been raised by the counsel for the respondent that the petitioner has not come to this Court with the clean hands as while approaching this Court he has not disclosed the fact that charge stood framed on 29.01.2008 which is a good and enough reason for not entertaining the present petition and dismissing the same. It is an admitted fact that after summoning of the petitioner vide impugned order dated 17.08.2007, charges were framed on 29.01.2008 which factum is not mentioned in the present petition when the same was filed on 21.08.2009. It is also not in dispute that the order dated 29.01.2008 has not been challenged in this petition nor through a revision petition which is a statutory remedy available. Accordingly the present petition on this ground alone deserves to be dismissed. In any case, the prayer for quashing of the FIR, cannot be entertained in the light of the fact that the petitioner has been specifically named in the FIR and stated to be armed with Barcha. Further for the reason that the petitioner has not given any injury to the deceased or other injured would not be a ground for quashing of the FIR. The plea of alibi has been CRM No. M-23238 of 2009 (O& M) -4- sought to be put forth before this Court is again a question which has to be seen by the trial Court, after the evidence is recorded. The impugned order summoning the petitioner also cannot be challenged at this stage when the charge has been framed against the petitioner and has attained finality. That apart, the order passed by the trial Court summoning the petitioner dated 17.08.2007 does take into consideration the presence of the petitioner at the spot and the observations made by the Court therein fulfills the requirement of Section 319 Cr.P.C. For the reasons mentioned above, the present petition stands dismissed. 12.10.2011 (AUGUSTINE GEORGE MASIH) tarun JUDGE