Criminal Misc. No.M-199 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-199 of 2009 Date of decision : 29.10.2009 Sajjan Singh .....Petitioner Versus State of Punjab ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Kanwaljit Singh, Senior Advocate with Mr. Harmanjit Singh, Advocate for the petitioner. Mrs. Reeta Kohli, Additional Advocate General, Punjab S. D. ANAND, J. 1. A prosecution in case FIR No.159 dated 2.7.2004 under Sections 302, 307, 149, 109 and 120-B IPC and Sections 25,27,54, 59 Arms Act, Police Station, Kharar is pending consideration before the learned Trial Judge. There are as many as eleven accused in that case including Kiranbir Singh Kang. The accused therein were charge sheeted for offences under Section 301 IPC and 120-B IPC, vide order dated 28.2.2007. 2. The petitioner (an injured in the course of the impugned occurrence and a co-accused in the cross case) has filed a plea for the transfer of the case pending at Ropar to a Court of competent jurisdiction at Chandigarh. 3. The petitioner has an apprehension that he will not get justice from the Court at Ropar. In the context of the apprehension, the petitioner Criminal Misc. No.M-199 of 2009 -2- **** draws sustenance from the following facts:- a) Kiranbir Singh Kang aforementioned exercises “a lot of influence in the Government” by virtue of his being President of the Shiromani Akali Dal (Badal), Youth Wing. He is likely to contest the parliamentary election from Anandpur Sahib constituency, as a candidate of Shiromani Akali Dal (Badal). Earlier too, he had contested the assembly election on the ticket of that party. b) On the assumption of office by the Badal Government, Kiranbir Singh Kang applied directly to the Director General of Police for reinvestigation. On the basis of a finding of exoneration recorded by the team which conducted reinvestigation, the Public Prosecutor (conducting the prosecution in the Court at Ropar) has filed an application under Section 321 Cr.P.C. for withdrawal from prosecution. This fact itself, it is averred, is supportive of the apprehension in the mind of the petitioner. c) Whenever Kiranbir Singh Kang has to appear in the Court at Ropar, atmosphere in the Court campus gets surcharged and is not conducive for the conduct of a trial. 4. The respondent-State of Punjab opposed all the pleas aforementioned. It described the apprehension in the mind of the petitioner to be fanciful and without any supportive basis in entertainment thereof. It was averred that the application for withdrawal from prosecution Criminal Misc. No.M-199 of 2009 -3- **** has been filed on the basis of reinvestigation by a team constituted by the D.G.P. The further plea, in the context, is that it will be for the Judicial Court concerned to decide that application on merits and the petitioner cannot be heard to say that Kiranbir Singh Kang would be able to influence the decision by the Judicial Court. 5. Mr. Kanwaljit Singh, learned Senior Counsel appearing on behalf of the petitioner, argued that the holding of a fair trial in the State of Punjab is not feasible, particularly when Kiranbir Singh Kang holds an important office in the Youth Wing of the ruling party and it is under his influence only that the Public Prosecutor has applied for withdrawal from prosecution. The learned counsel took exception to the filing of that plea particularly in view of the fact that the charges in that case had already been framed and as many as three witnesses stand examined. 6. The learned State Counsel rubbished the circumstances relied upon by the learned Senior Counsel for the petitioner and pointed out that the petitioner had filed a petition challenging the competence of reinvestigation ordered by the Director General of Police and had, then, opted to withdraw it on 6.11.2008. It was argued that the plea for withdrawal from prosecution had already been filed on 8.4.2008 and the withdrawal obtained on 6.11.2008, in a way, announced that the petitioner was no longer interested in pursuing the challenge. It was the also argued that no fresh circumstances surfaced during the post-6.11.2008 period which would have necessitated the filing of petition for transfer of the prosecution from the Court at Ropar to a Court of competent jurisdiction at Chandigarh. The learned State counsel also invited the attention of this Court to the fact that in a litigation pending between Kiranbir Singh Kang and the State of Punjab in the Apex Court, the petitioner had filed an Criminal Misc. No.M-199 of 2009 -4- **** intervention application which came to be rejected by that Court. Learned State Counsel, with equal vehemence, also argued that non impleading of Kiranbir Singh Kang and other co-accused as a party to this petition is also sufficient to non-suit the petitioner. 7. In the context of the above advocated plea, the learned Senior Counsel appearing on behalf of the petitioner argued that though he is not in a position to dispute that the intervention application came to be rejected, it is also apparent from the record that the petition pending in the Apex court at the hands of the State of Punjab came to be withdrawn. This fact also, it was argued, would be supportive of the apprehension in the mind of the petitioner that Kiranbir Singh Kang wields great influence upon the administrative machinery in the State of Punjab. 8. I have given careful consideration to the point under challenge. 9. The mere fact that a party to a prosecution holds an office in the party machinery of the ruling party is not sufficient to hold that he would be able to exercise influence on the judicial hierarchy in the State. Further, the mere fact of filing of an application under Section 321 Cr.P.C. is also not sufficient to uphold the apprehension in the mind of the petitioner that it would be allowed. It is for the learned Trial Judge to examine the merits of the pleas raised by the rival parties and, then, to adjudicate upon the controversy. I am clear in my mind that the judicial functionaries decide upon the matters in a judicial manner and are not affected by the indicated consideration at all. 10. It is apparent from the record that the petitioner did challenge the competence of the reinvestigation ordered by the Director General of Police in this case. That challenge was withdrawn on 6.11.2008. The Criminal Misc. No.M-199 of 2009 -5- **** relevant order passed by a Coordinate Bench of this Court (K.C.Puri, J.) is quoted in the petition itself and is extracted hereunder:- “Crl. Misc. No.50467 of 2008 has been filed for withdrawing the main case with liberty to approach the Court in case of necessity. The application stands allowed. The petition stands dismissed as withdrawn with the aforesaid liberty.” 11. It is not the plea on behalf of the petitioner that he had filed another petition thereafter to challenge the holding of reinvestigation under the orders of the Director General of Police. In that view of things, it has to be taken, as a fact, that the order aforementioned has attained finality. The only inference which can be culled out from the above facts is that the petitioner opted to refrain from pursuing the challenge to the reinvestigation ordered by the Director General of Police. 12. It would require pertinent notice, in the context, that the application under Section 321 Cr.P.C. had already been filed by the State on 8.4.2008, well before 6.11.2008, and all the allegations presently made found mention in that petition as well which the petitioner had opted to withdraw. 13. Apart therefrom, it is also apparent from the record that intervention application filed by the petitioner in Special Leave to Appeal (civil) No. 18731 of 2006 (State of Punjab and others Vs. Kiranbir Singh Kang and another) was dismissed by that Court. 14. A very disquieting feature of the case that the petitioner opted to refrain from impleading Kiranbir Singh Kang etc. as a party. In the course of the petition, there are precise allegations against Kiranbir Singh Criminal Misc. No.M-199 of 2009 -6- **** Kang. In all fairness, he ought to have been impleaded as a party. It is, then, only that he would had a chance to rebut the allegations against him. 15. In view, thus, of the fact that the earlier challenge to the reinvestigation was withdrawn by the petitioner on 6.11.2008 and also in view of the fact that the intervention application mentioned above also came to be rejected by the Apex Court and further in view of the non- impleadment of Kiranbir Singh Kang etc. as a party , this Court is of the view that the apprehension entertained by the petitioner are imaginary and misconceived. The petition shall stand rejected accordingly. October 29, 2008 (S. D. ANAND) Pka JUDGE Note: Whether to be referred to Reporter: Yes/No