Additional Sessions Judge to prepare synopsis after reading Supreme Court judgments on Anticipatory Bail as he failed to exercise jurisdiction: Punjab & Haryana High Court

 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050191IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARHCRM No.312120 IN ANDCRM M No.405019are taken on recordsubject to all just exceptions. on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050192CRM M No.405019isnot buried by the Courts below. This is the state of affairs that despite the National JudicialAcademy as well as the Chandigarh Judicial Academy holdingseminars and imparting training to the Sessions Judges or theMagistrates that judicial consciousness demand real and substantivejustice and there is nothing illegal in the judicial system if inexceptional case a Court in quest of truth and justice passes an orderacknowledging the constitutional right of a citizen the AdditionalSessions Judge I Ludhiana and Judicial Magistrate Ist Class Ludhiana have failed to exercise jurisdiction vested with them.The constitutional vision of imparting justice by theDistrict Judiciary also encourages the Courts to be an instrument toestablish a welfare state based on an equal justice to all as Article 21 ofthe Constitution of India provides that the right to life and personalliberty cannot be taken away except by procedure established by lawwhich should be just fair and reasonable. Similarly Article 38 of theConstitution of India provides that the state should strive to promote thewelfare of people by securing and protecting as effectively as it may bea social order in which justice social economic and political shall beensured. Even Article 39 A of the Constitution of India provides equaljustice and free legal aid and commands the State to secure theoperation of legal system to promote justice based on an equal on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050193opportunity.Brief facts of the case are that the petitionerswere posted in Police Station Dehlon DistrictLudhiana and had arrested one Hardeep Singh @ Raju son ofNagender Singhin FIRNo.139 dated 25.08.2005 registered under Sections 15 and 25 of theNarcotic Drugs and Psychotropic Substances Act 1985to get an enquiryconducted and submit a report. “The Additional Inspector General ofPolicegave a report that the dead body recovered from thepond was not of the son of the complainant and he was alive and was on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050194in regular touch with the complainant father.” Thereafter this Courtdirected the Sessions Judge Ludhiana to hold an enquiry and submit areport about the whereabouts of the son of the complainant. TheSessions Judge submitted an enquiry report on 31.08.2008 holdingthat the son of the complainant was eliminated by the police while incustody. In view of the said report the aforesaid CRWP No.448 of2005 was disposed of on 21.05.2010 with a direction to register an FIRagainst the accused and thus FIR No.115 dated 21.08.2010 wasregistered under Sections 302 and 201 IPC at Police Station Dehlon District Ludhiana. During the investigation of the FIR an S.I.T. wasconstituted which again submitted a report that the son of thecomplainant was alive as no evidence has come against the accusedpersons and in fact Hardeep Singh @ Raju had escaped from the policecustody. On the basis of the report a cancellation report dated31.10.2011 was filed before the Illaqa Magistrate. The complainant thereafter filed a protest petition on 21.01.2012.The Illaqa Magistrate Judicial Magistrate Ist Class treatedthe protest petition as a criminal complaint and recorded the statementof CW 1 Satpal Singh CW 2 Gurdial Singh CW 3 Dr. Rohit K. Singlaand CW 4 Naginder Singh5challenging the aforesaid summoning order which was however dismissed primarily on the ground that the case is still at thepreliminary stage.Counsel for the petitioners has referred to the said orderdated 09.05.2018 to submit that the primary challenge in the saidpetition was that the impugned summoning order is a non speakingorder.Counsel for the petitioners further submitted that in themeantime the Illaqa Magistrate issued Non bailable Warrants againstthe petitioners and on 02.09.2019 the petitioners through their counselmoved an application before the trial Court that in fact Hardeep Singh(claimed to be deceased son of the complainant) was in fact alive andhe was declared proclaimed offender in the aforesaid FIR No.140 dated25.08.2005 and now he has been arrested and he is in judicial custody.Thereafter the case was adjourned.In the meantime the petitioners have filed the presentpetition in which while issuing notice of motion the following orderwas passed: “Challenge in this petition is to the summoningorder dated 07.12.2017 vide which the petitioners havebeen summoned as an accused in a protestpetition complaint filed by respondent No.2 NaginderSingh after the police submitted a cancellation report inFIR No.115 dated 21.08.2010 under Sections 302 and 201IPC Police Station Dehlon District Ludhiana.Counsel for the petitioners has submitted that infact the son of the complainant was an accused in a case on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050196registered under the NDPS Act and in the year 2005 heescaped from the police custody and later on 17.09.2005 a dead body was recovered by the police and on thatpretext an enquiry was conducted and it was found thatthe dead body is not the son of the petitioner namelyHardeep Singh @ Raju. It is further submitted that thecomplainant then filed a petition before this Court inwhich on 21.05.2010 a direction was issued to conduct anenquiry and the aforesaid FIR No.115 was registered on21.08.2010 thereafter.Counsel for the petitioners has further submittedthat again the matter was enquired into and a cancellationreport was filed in which respondent No.2 has filed aprotest petition and in the said petition the impugnedsummoning order has been passed. Counsel for thepetitioners has relied upon a DDR No.2 dated 30.08.2019registered in Police Station Dehlon Ludhiana accordingto which the accused Hardeep Singh @ Raju @ Doctor son of Naginder Singh resident of village Rangia PoliceStation Dehlon Ludhiana who was declared asproclaimed offender on 24.08.2010 was arrested by ASIJanak Raj CIA Staff Jagraon and was taken in custodyin FIR No.1405 which according to counsel forthe petitioners was registered under the NDPS Act.Counsel for the petitioners has thus argued that theimpugned summoning order which has been passed on thecomplaint given by Naginder Singh that his son HardeepSingh @ Raju has been murdered by the accusedperson petitioner is in fact alive and was arrested in theaforesaid FIR No.1405 by the police of PoliceStation Dehlon on 30.08.2019.”In pursuance thereof the Commissioner of Police Ludhiana filed an affidavit stating that Hardeep Singh @ Raju son of on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050197the complainant Naginder Singh is the same person who was allegedlymurdered in FIR No.115 dated 21.08.2010. Thereafter on 30.09.2019 the following order was passed: “In pursuance of order dated 23.9.2019 affidavitof Commissioner of Police Ludhiana filed in the Courttoday and as per the same Hardeep Singh @ Raju son ofNaginder Singh respondent No.2 is the same person who was allegedly murdered in FIR No. 115 dated21.8.2010. During enquiry the police also recorded thestatement of Parminder Singh Ex Sarpanch and oneSikander Singh @ Shinda. It is further stated that onverification from the SHO Police Station Dehlon Ludhiana it is found that aforesaid Hardeep Singh @Raju @ Doctor was earlier declared a proclaimedoffender in FIR No. 139 dated 25.8.2005 under Sections15 and 25 of the NDPS Act FIR No.140 dated 25.8.2005 under Sections 212 216 224 120 B IPC and FIR No.88dated 26.8.2006 under Sections 420 467 468 471 120 BIPC8compensation of Rs.Two lacs. Adjourned to 29.10.2019. In view of the same the Station House Officer Police Station Dehlon District Ludhiana is directed toproduce respondent No.2 Naginder Singh on the next dateof hearing who will explain why the amount of Rs.Twolacs received by him be not recovered and deposited backwith the State government. However it will be open for the trial Court todispose of the protest petition in view of the fact thatHardeep Singh @ Raju son of Naginder Singh is alive.” In the meantime the complainant appeared throughcounsel and sought time to file reply on the point that since thecomplainant on the ground that his son has been murdered wasgranted an ex gratia amount of Rs.2.00 lacs and the same be recoveredfrom him.Counsel for the petitioners has further submitted thatnoticing that the Magistrate has issued Non bailable Warrants againstthe petitioners all the petitioners moved application under Section 438Cr.P.C. for grant of anticipatory bail in view of the fact that HardeepSingh @ Raju is alive however the Additional Sessions Judge failedto exercise his jurisdiction and dismissed the application on22.07.2020 by passing the following order: “7. At this stage learned Additional PublicProsecutor for the State submitted that when the protestpetition is yet to be disposed of in the light of the orders ofthe Hon ble High Court as submitted above the applicantis not having any ground to seek the grant of concession ofanticipatory bail. on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501998. After having gone through the record of the caseand in view of the submissions made on behalf of theapplicant as well as State the application having beenmoved by the applicant seeking the grant of concession ofanticipatory bail at this stage is disposed of with theobservation that the applicant through his counsel mayapproach the concerned Court for disposal of the protestpetition as directed by the Hon ble High Court in CRM M 405019 vide order dated 30.09.2019 and there afterthe applicant is at liberty to avail the remedy if so advisedaccordingly in the light of the order to be passed by theconcerned Court regarding disposal of protest petition.Learned Lower Court record be returned along with acopy of this order and file be consigned to the recordroom.”The petitioners have now moved present application formodification of the order dated 30.09.2019 on the ground that even theIllaqa Magistrate Judicial Magistrate Ist Class vide order dated02.12.2020 has refused to dispose of the protest petition by passing thefollowing order: “In these circumstances counsel Shri AmitAgnihotri is requesting for disposal of the case. Thoughcounsel is requesting for disposal of the case in view oforder of Hon’ble High Court and learned Sessions Courtbut the same cannot be done by undersigned due tofollowing reasons: 1) Predecessor of undersigned already tookcognizance of this case when he passed thesummoning order dated 07.12.2017. After passingof the summoning order if offences are triable bythe court of Sessionsthiscourt only has to procure presence of accused andto commit the case. Except this no power to do 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501910anything else remains with the undersigned. It isalso worth mentioning here that there is noprovision of review given to judicial magistrate inCr.P.C. Meaning thereby the stage at whichanything can be done by a judicial magistrate hasalready passed.2) Secondly vide said order accused weresummoned under section 302 201 read with section34 of the IPC. Offence under section 302 of I.P.C isexclusively triable by the court of Sessions andcourt of Sessions is trial court in this case. This facthas to be read in the light of order dated 30.09.2019passed by the Hon’ble High Court. Vide said order it is ordered that it will be open for the trial court todispose of the protest petition in view of the fact thatson of complainant is alive. Now this court is nottrial court as in offence under section 302 of I.P.C accused are triable by the court of Sessions. 6. In view of the aforesaid circumstances no orderqua disposal of protest petition can be passed by theundersigned. Thus request for dispose of the protestpetition is declined accordingly.7. Earlier the case was fixed for procuring presenceof the accused persons through non bailable warrants ofarrest but accused have not put in appearance. So freshnon bailable warrant of arrest of accused be issued for07.01.2021.”Counsel for the petitioners has further argued that to add tothe agony of the petitioners when the application was moved before theMagistrate to dispose of the protest petition even the Magistraterefused to exercise the jurisdiction and dismissed the application.Counsel for the petitioners has further argued that despitethe fact that the person who is alleged to be murdered is alive and is injudicial custody the trial Court failed to appreciate that the Non bailable Warrants need to be withdrawn and it is not a case where 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501911anticipatory bail application could be dismissed by the AdditionalSessions Judge.Counsel for the petitioners has thus submitted that sinceboth the Courts below i.e. the Judicial Magistrate Ist Class as well asthe Additional Sessions Judge I Ludhiana having failed to exercise thejurisdiction vested with them the petitioners are left with no alternativeremedy but to move an application for modification of the order dated30.09.2019 and to decide the main petition on merits.Counsel for the petitioners has further submitted that theAdditional Sessions Judge while passing the order dated 22.07.2020completely ignored that the petitioners are summoned in a protestpetition in an FIRfor thealleged murder of one Hardeep Singh @ Raju who is admittedly aliveand therefore in pursuance of the Non bailable Warrants issued by theIllaqa Magistrate there was no reason for the Additional SessionsJudge not to exercise his jurisdiction vested under Section 438 Cr.P.C.and thus the order of dismissal of the anticipatory bail show that theAdditional Sessions Judge has failed to apply its judicial mind.Counsel for the petitioners has also submitted that theanticipatory bail application was filed as the petitioners intended toappear before the Illaqa Magistrate in pursuance of the summoningorder but later on Non bailable Warrants were again issued. It is furthersubmitted that even the Magistrate in not disposing of the protestpetition has also failed to exercise the jurisdiction.Counsel for the petitioners has further argued that two 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501912reasons given by the Magistrate are not legally correct as it is wronglyobserved that since the predecessor Judge has taken cognizance of thecase while passing the summoning order dated 07.12.2017 theMagistrate cannot dismiss the protest petition though the power underSection 239 Cr.P.C. can be exercised.With regard to Point No.(2) decided by the trial Court thatthe Magistrate not being the trial Court cannot decide the protestpetition it is submitted that there is no bar under the Act to dismiss theprotest petition once it has come to the notice of the Magistrate that thecomplainant by playing fraud with the Court as well as the prosecutingagency and the petitioners have succeeded of getting the summoningorder passed for an offence which has never been committed by thepetitioners.Counsel for the petitioners has further submitted thatjudicial propriety demand that the Magistrate should have passed anorder with judicial consciousness as the law does not expressly prohibitto dismiss the protest petition as fraud is committed by the complainant which vitiates the entire proceedings. Counsel has further submittedthat the Court may not to pass an order which is a mere formality butshould pass an order applying judicial mind and to do substantialjustice in favour of the petitioners who are facing the agony ofunwanted litigation for the last 15 years.Counsel for the petitioners has relied upon certainjudgments to submit that fraud avoids all judicial acts. Reliance isplaced on the judgment “S.P. Chengalvaraya Naidu vs Jagannath” 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.405019131994SCC 1 wherein the Hon ble Supreme Court has held thatfraud avoids all judicial acts. Counsel for the petitioners has further referred to thejudgment “Meghmala and others vs G. Narasimha Reddy andothers” 2010 SCC383 wherein the following observations havebeen made: “28. From the above it is evident that even injudicial proceedings once a fraud is proved alladvantages gained by playing fraud can be taken away. Insuch an eventuality the questions of non executing of thestatutory remedies or statutory bars like doctrine of resjudicata are not attracted. Suppression of any materialfact document amounts to a fraud on the Court. EveryCourt has an inherent power to recall its own orderobtained by fraud as the order so obtained is non est.”Counsel for the lastly has relied upon the judgment“Vikram Johar vs State of Uttar Pradesh and another” 20191 SCC 568 hadoccasion to consider discharge under Section 227 it washeld by the court that Section 227 was incorporated in theCode with a view to save the accused from prolongedharassment which is a necessary concomitant of aprotracted criminal trial. It is calculated to eliminateharassment to accused persons when the evidentialmaterials gathered after investigation fall short ofminimum legal requirements.”Counsel for the petitioners has also argued that the orderpassed by the Magistrate expressing helplessness is not exhibition of 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501914judicial consciousness.Counsel for the petitioners has further submitted that whiledoing substantive justice in the judicial system a Court should inexceptional cases can pass an order acknowledging the constitutionalrights of an aggrieved party.It is worth noticing that the Hon ble Supreme Court though has held in “Adalat Prasad vs Rooplal Jindal” 7 SCC338 that the Court cannot recall the summoning order but the decisionin Adalat Prasad casecannot be misconstrued to mean thatonce a summoning order has been issued the trial must followespecially in cases where the complainant has played fraud in gettingthe summoning order which vitiates the entire proceedings.Counsel for the petitioners has lastly argued that onaccount of the endless agony of 15 years faced by the petitioners whichhas caused them mental torture financial loss and endless pain andagony the petitioners be awarded suitable compensation. Counsel forthe petitioners has also referred to the judgment of the Hon ble SupremeCourt in “Sube Singh vs State of Haryana” 2006(1) RCRwill not come in the way of the aggrieved person 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501915claiming additional compensation in a civil court inenforcement of the private law remedy in tort nor come inthe way of the criminal court ordering compensationunder section 357 of Code of Civil Procedure.”Counsel for the State on the basis of the affidavit filed bythe Commissioner of Police Ludhiana as well as the cancellationreport has submitted that no fault can be found with the investigation bythe State police as it was found during number of enquiries that the sonof the complainant is alive however the summoning order was passedon the basis of the statement of CW 1 to CW 4 who have deposed infavour of the version of the complainant and the enquiry report ofSessions Judge Ludhiana indicating the petitioners that the son of thecomplainant died in police custody16cancelled however on the basis of the report of the Sessions Judge Ludhiana and the statement of CW 1 Satpal Singh CW 2 Gurdial Singhand CW 4 Naginder singh the Magistrate has summoned the petitionerstreating protest petition as complaint under Section 190 Cr.P.C. inexercise of power under Section 204 Cr.P.C. for the purpose ofcommitting them to the Court of Sessions under Section 209 Cr.P.C.Though the trial Court has rightly observed that once thecognizance has been taken the Court cannot recall the summoningorder however it has ignored the fact that the application was movedby the petitioners to dismiss the protest petition in view of the fact thatthe summoning order was procured by the complainant by playing fraudwith the Court as the son of the complainant is alive and therefore nothing precluded the trial Court to dismiss the protest petition.Further observation made by the Magistrate that since theoffences were triable by the Court of Magistrate Court of Sessions though are correct but the Magistrate in exercise of power underSection 239 Cr.P.C. in order to prevent any injustice to the petitionerscould have allowed the application and discharge them by dismissingthe protest petition.The Magistrate while dismissing the application videimpugned order dated 02.12.2020 even again issued Non bailableWarrants against the petitioners. This part of the order is also illegal asin view of provision of Section 87 of Cr.P.C. the Magistrate canwithdraw Warrants as per the information supplied and also in view thatthe petitioners through counsel had already appeared. The proper 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501917course was to direct the counsel for the petitioners to furnish bail suretybonds as they intended to appear before the Magistrate but fordismissal of anticipatory bail by the Additional Sessions Judge theyapprehended arrest for no fault.However the Additional Sessions Judge having failed toexercise the jurisdiction under Section 438 Cr.P.C. in dismissing theanticipatory bail application of the petitioners despite the fact that itwas brought to his notice that they are being prosecuted in pursuance toa fraud committed by the complainant has passed a totally illegal order.Accordingly this petition is allowed the protest petitiondated 20.01.2012 filed in case No.45 dated 21.11.2011 under Sections302 201 IPC read with Section 34 IPC as well as the impugnedsummoning order dated 07.12.2017 passed by the Judicial MagistrateIst Class Ludhiana and the order dated 02.12.2020 passed by theJudicial Magistrate Ist Class Ludhiana refusing to dismiss the protestpetition are set aside and the petitioners are discharge in FIR No.115dated 21.08.2010 registered under Sections 302 201 34 IPC at PoliceStation Dehlon Ludhiana District Ludhiana.Considering the fact that the petitioners are subjected tounwanted and unnecessary criminal prosecution for a period of last 15years it is directed that the State Legal Services Authority Punjabthrough District Legal Services Authority Ludhiana will pay the costsof Rs.50 000 each to all the 03 present petitioners namely AmarjitSingh Jaswant Singh and Kabal Singh within a period of 04 monthsfrom today. 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501918It will be open for the prosecution to initiate theproceedings under Section 340 Cr.P.C. against CW 1 Satpal Singh CW 2 Gurdial Singh and CW 4 Naginder Singh i.e. the complainant.It will also be open for the prosecution to recover theamount of Rs.2.00 lacs from the complainant namely Naginder Singh orhis legal representatives and to recover the costs of Rs.50 000 eachfrom CW 1 Satpal Singh CW 2 Gurdial Singh and CW 4 NaginderSingh or their LRs after paying the same to the petitioners.Considering the fact that the Additional Sessions Judge has failed to exercise its jurisdiction it is directed that he will gothrough at least 10 judgments of the Hon ble Supreme Court includingthe 02 Constitutional Bench Judgments i.e. “Gurbaksh Singh Sibbia vsState of Punjab” 1980AIR 1632 and “Sushila Aggarwal vsStateRCR833 wherein theHon ble Supreme Court has interpreted the provisions of Section 438Cr.P.C.The Additional Sessions Judge I Ludhiana will submit thewritten synopsis on the exercise of jurisdiction by a Judge underSection 438 Cr.P.C. after going through the judgments within a periodof 30 days to the Director Chandigarh Judicial Academy.Disposed of. JUDGE12.01.2021yakubWhether speaking reasonedYes NoWhether reportable:Yes No 

Summary: Additional Session Judge was ordered by the High Court to read 10 landmark judgment of the Supreme Court of India on Anticipatory Bail covered under Section 438 of the Code of Criminal Procedure and to submit a written synopsis on the same. The High Court passed the order after observing that the Judge wrongly dismissed the application for anticipatory bail. The Punjab and Haryana High Court presided over by J. A.S. Sangwan laid down this ratio in the case of Amarjit Singh &amp; Ors. Vs. State of Punjab &amp; Anr., [CRM No. 31214 of 2020] The brief facts of this case are that one Haardeep Singh son of Nagendra Singh was arrested by the Petitioners in the year 2005 under the NDPS Act. When he was being taken to the Magistrate for a hearing he escaped and there was no information regarding his physical being. After, sometime the father of the accused i.e. Nagendra Singh filed a habeas corpus petition contending that his son was illegally held by the Police. Later on, there was a body found in a pond which was alleged to be of Hardeep and Nagendra accused the police for murder of his son. A report was filed by the Police stating that the body was not of Hardeep and the High Court directed the Sessions Court to further investigate on this matter. The Sessions Court confirmed on the report that the body found was of Haardeep and hence an order was passed to close the Habeas Corpus proceedings and register an FIR in this case. Meanwhile, a report by the Special Investigating officer was filed which stated that the body was not of Haardeep and that he had escaped while he was being taken to the court. Hence, a cancellation petition was filed before the trial court in the year 2011. Nagendra opposed this petition and filed a protest petition in the year 2012. The Court considered this petition as a criminal complaint and recorded statements of all the parties in the case. Later the court issued summons for the case proceedings to the three petitioners and in the year 2019 non-bailable warrants were issued by the Magistrate against the three Petitioners. The Petitioners contended that Haardeep Singh was alive and in custody of the Police for the crimes committed under the NDPS Act. The Police Commissioner verified the same. An anticipatory bail application was filed by the Petitioners on the grounds that a fraud was played on the courts and Criminal Complaint was filed against the three petitioners whereas the son of the Complainant i.e. Haardeep was alive and the complainant had the knowledge about the same. The Additional Session Judge proceeded to dismiss the anticipatory bail application. The Magistrate court then dismissed the application moved before the it to dispose of the protest petition, stating that it did not possess the power to dispose of the application since cognizance had already been taken and accordingly the matter would have to be tried by a court of higher jurisdiction. The High Court was of the opinion that, “The Magistrate, while dismissing the application vide impugned order dated 02.12.2020 even again issued Non-bailable Warrants against the petitioners. This part of the order is also illegal as in view of provision of Section 87 of Cr.P.C., the Magistrate can withdraw Warrants as per the information supplied and also in view that the petitioners through counsel had already appeared. The proper course was to direct the counsel for the petitioners to furnish bail/surety bonds as they intended to appear before the Magistrate, but for dismissal of anticipatory bail by the Additional Sessions Judge, they apprehended arrest for no fault.”