CIVIL APPEAL 2314 of 2004 on 2 June 2004

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

Criminal Revision No.2314 of 2004Date of Decision: March 25, 2009

Mrs.Vijay Shakti

...........Petitioner

Versus

State of Punjab and others

..........Respondents

Coram: Hon'ble Mrs. Justice Sabina

Present: Mr.Randeep Singh Rai, Senior Advocate with Mr.Gauttam Dutt, Advocate for the petitioner. Ms.Rita Kohli, Additional Advocate General, PunjabMr.A.P.S.Deol, Senior Advocate with Mr.Devinder Pal,Advocate for respondent No.2

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Sabina, J.(oral)

This petition has been filed by the petitioner-Vijay Shaktichallenging order dated 2.6.2004 passed by the Additional Sessions Judge,Patiala whereby the revision petition filed by the State against order dated6.12.2003 passed by the Chief Judicial Magistrate, Patiala on cancellationreport in FIR No. 282 of 31.12.1986 registered at Police Station Kotwali,Patiala was not accepted.

In the present case, the FIR in question was lodged on the basis ofthe statement of Vijay Shakti, complainant. In her statement before thePolice, she stated that on 5.5.1983, her husband was detained in Nabha Jail.At about 11.30 A.M., she was present on the second floor of her house along with her sons Ashok Kumar, Suchinder Kumar and daughter-in-lawAnita Rani. She was preparing food and suddenly, she heard noise of somepersons in the street. There was smoke surrounding their house. Afterhearing the noise, she went towards their shop and saw a chair was burningthere. She extinguished fire with the help of water and closed the door . Inthe meantime, police arrived at the spot and asked them to open the door.Her son Ashok Kumar informed some one on phone as the police was tryingto break open the door. Complainant went to the roof of the house and sawthat Constable Swaran Singh armed with rifle was roaming on the roof ofthe temple in front of her house. On seeing her, Constable threatened her tocome down from the roof of her house, otherwise, she shall be shot dead .At the same time, Swaran Singh, Constable fired two shots. One shot hitwall of the house and the other shot hit Ashok Kumar, who was standinginside the house and was watching the scene in the street through thewindow. Bullet pierced from the door of the house and hit Ashok Kumarand as a result he died at the spot. Thereafter, the police asked them toopen the door but they did not do so. The police party broke open the maindoor in the street and came in . Paramjit Singh asked other members of thepolice party that the dead body of Ashok Kumar be thrown out in the street.Complainant along with her daughter-in-law did not allow the police partyto throw the dead body of Ashok Kumar in the street. Paramjit Singhordered his policemen to give bat blows to them. She suffered a Lathi blowon her head and Suchinder Kumar raised alarm but nobody came insidetheir house because the area was under curfew. Suchinder Kumar had alsosuffered injuries on his feet. The dead body of Ashok Kumar was taken toRajindra Hospital, Patiala. Suchinder Kumar also accompanied the police

party to the hospital. She was arrested by the police along with otherpersons and was later on released at about 7.30 P.M.When she came backfrom the police station, she found that the house-hold articles were brokenand the gate was also broken. Her husband Vidhya Sagar was present inthe house and she disclosed the entire incident to him. They never threwany brick bats nor attacked the police personnel. A false case has beenregistered against them under Section 307 of the Indian Penal Code (`IPC'for short).

Arguments

During investigation, statements of Suchinder Kumar as well asAnita Rani were recorded under Section 161 of the Code of CriminalProcedure (`Cr.P.C.' for short) . After investigation, the police submitted acancellation report. The Chief Judicial Magistrate, Patiala vide order dated6.12.2003, after going through the record, found that prima facie, there wassufficient material to proceed against Swaran Singh, Paramjit Singh andHardial Singh and accordingly, notice was issued to them for offence underSection 302/34 IPC. Aggrieved by the same, the State preferred a revisionpetition.

Vide impugned order dated 2.6.2004, the Additional SessionsJudge, Patiala, partly accepted the revision petition and it was ordered thatnow the Area Magistrate shall proceed against Swaran Singh, Constableonly for commission of offence pending under Section 302 IPC and will notproceed against Hardial Singh and Paramjit Singh. Hence, the presentrevision petition by the complainant.

Learned counsel for the petitioner has submitted that the learnedAdditional Sessions Judge, Patiala had erred in partly accepting the revisionpetition. At the stage of the summoning of the accused, only a prima facie,

case was required to be made out. From the statement of the complainantparty, it was evident that Swaran Singh, Paramjit Singh and Hardial Singhhad in connivance with each other committed murder of Ashok Kumar. TheMagistrate could summon the accused under Section 190(1)(b) of Cr.P.C.Reliance in this regard has been placed onM/S India Carat Pvt. Ltd. V.

State of Karnataka and anotherAIR 1989 Supreme Court 885.

Learned State counsel, who is assisted by the counsel forrespondent No.2, has submitted that the learned Additional Sessions Judgehad rightly found that there is no material on record even to, prima facie,proceed against respondent No. 2 or 3 as they were not present at the spotwhen the shot was fired by Swaran Singh. Curfew had been imposed in thearea. Swaran Singh was from Sangrur Police, whereas, Hardial Singh andParamjit Singh were from Patiala police and as such, they could not haveany common intention to commit murder of Ashok Kumar. It has beenstated that so far as respondent No.3-Hardial Singh is concerned, he hassince died.

A perusal of the statements of the complainant as well as AnitaRani and Suchinder Kumar recorded by the police under Section 161Cr.P.C., placed on record, reveal that two shots were fired by Constable-Swaran Singh from his rifle. The first shot hit the wall of the house of thecomplainant, whereas the second shot hit Ashok Kumar through the door ashe was standing near the window. Ashok Kumar died at the spot.Thereafter, as per the statement of the complainant, Paramjit Singh alongwith other police officials arrived at the spot and told the police party tothrow the dead body of Ashok Kumar in the street. Learned AdditionalSessions Judge has observed that from the statements of the witnesses, it

Criminal Revision No. 2314 of 20045was not established that all the three accused i.e. Hardial Singh, ParamjitSingh and Swaran Singh had common intention to commit murder of AshokKumar. There was curfew in the area where the complainant was residingalong with her family. Paramjit Singh had come to the spot after murder ofAshok Kumar by Constable Swaran Singh. They might have helped SwaranSingh or could have taken precaution that the situation may not go out ofcontrol after the murder of Ashok Kumar. But they could not be held guiltyof murder of Ashok Kumar because they could have instigated SwaranSingh to commit murder of Ashok Kumar with his gun only if they hadbeen present near the place of occurrence at the time of commission ofmurder of Ashok Kumar. The strictures passed against Hardial Singh andParamjit Singh by the Inquiry Commission did not constitute commissionof an offence under Section 302 IPC.

Learned counsel for the parties have also drawn my attention tothe report of the commission of inquiry by Justice K.K.Dubey as per whichit was Head Constable Mohan Singh and six constables, namely, GurjantSingh, Jagdev Singh, Swaran Singh, Charan Singh, Darbara Singh andPritam Singh had been detailed at that place, who had come from SangrurDistrict. Further on 2.5.1983, due to criminal riots, curfew had beenimposed and the police from other districts and Central Reserve PoliceForce had been called on 3.5.1983. Vidhya Sagar was arrested by thepolice. The house of Vidhya Sagar was situated predominantly in Hindulocality. In these circumstances, the reasons given by the trial Court, whilepartly allowing the revision petition, are sound reasons. As per thestatement of the complainant herself, Paramjit Singh, respondent No.2 hadcome to the spot after the occurrence and there is no, prima facie, material

on record to suggest that the Swaran Singh shared any common intentionwith Hardial Singh and Paramjit Singh when he committed the murder.There is no quarrel with regard to the proposition of law that the Magistratecan take cognizance of offence even if the police report is to the effect thatno case was made out. However, in the present case, no offence underSection 302 IPC is, prima facie, made out against Hardial Singh andParamjit Singh. Even otherwise the occurrence relates to the year 1983 andsubstantial justice appears to have been done.

The impugned order, thus, does not suffer from any infirmitywarranting interference. Dismissed.

( Sabina ) Judge

March 25, 2009arya