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2002 DIGILAW 377 (PNJ)

Baldev Singh v. State Of Haryana

2002-04-05

AMARBIR SINGH GILL

body2002
Judgment Amar Bir Singh Gill, J. 1. This order shall dispose of Crl. Misc. No. 1634-M of 1999 as well as Crl. Misc. Application No. 9705 of 2000 filed by Surinder Singh @ Shinda s/o Gurbachan Singh, under trial from the jail. 2. This is a petition under section 482 Cr.P.C. for quashing of order dated 12.9.1996 passed by Chief Judicial Magistrate, Karnal whereby he granted pardon to accused-Surinder Singh @ Shinda in case FIR No. 73, dated 5.32.1994 under Section 302/34 read with Section 120-B IPC, Police Station Butana, District, Karnal. 3. The facts in brief are that case FIR No. 73, dated 5.2.1994 under Section 302/34 read with section 120-B IPC was registered at Police Station Butana against Sahab Singh and others. On 21.4.1994, challan under Section 173 Cr.P.C. against the accused persons was submitted and the case was committed to the court of Sessions. Charges were framed on 27.5.1996 and the trial was under way. However, during the pendency of the trial, further investigation revealed that infact, murder was committed by four persons, namely, Surinder Singh, Baldev Singh, Balkar Singh and Balbir Singh. Supplementary report was submitted. One of the accused, namely, Surinder Singh surrendered himself before the Court and applied for grant of pardon. By detailed order dated 12.9.1999, Chief Judicial Magistrate, Karnal granted pardon to Surinder Singh. The prosecution also moved an application for discharge of previously challaned 9 accused persons against whom case was pending. Three accused, namely, Baldev Singh, Balkar Singh and Balbir Singh named in the subsequent report by the police, now the petitioners before this Court, moved an application before the trial Court i.e. Additional Sessions Judge, Karnal challenging the grant of pardon to Surinder Singh by Chief Judicial Magistrate, Karnal mainly on the ground that the court of Sessions was already ceased of the matter in relation to the previous challan filed on 1.3.1994 in respect of same murder against 9 persons and that a supplementary report against 4 accused, pardon, if any, to any one of the accused could be considered and granted by the trial Court only i.e. Additional Sessions Judge before whom the case was already pending. Learned Additional Sessions Judge, Karnal, by order dated 5.11.1998, copy Annexure P-2, did not accept the plea and dismissed the application of the petitioners. Learned Additional Sessions Judge, Karnal, by order dated 5.11.1998, copy Annexure P-2, did not accept the plea and dismissed the application of the petitioners. The present petition is directed against both the orders i.e. one passed by Chief Judicial Magistrate on 12.9.1996, copy Annexure P-1 and the other dated 5.11.1998, copy Annexure P-2, passed by Additional Sessions Judge, Karnal. 4. The counsel for the parties have been heard at length. 5. Admittedly, order allowing the grant of pardon is revisable order. However, the petitioners did not take recourse to that remedy and as a matter of fact, the order became final. However, they have invoked the inherent jurisdiction of this Court mainly on the ground of jurisdiction of Chief Judicial Magistrate to consider the application for grant of pardon to Surinder Singh, one of the accused in the supplementary challan. It is not disputed that there is no bar for further investigation of the case though already report under Section 173 Cr.P.C. is submitted in a given case. Exactly the same has happened in this case. After submission of the report under Section 173 Cr.P.C., the police investigated the case further which revealed real culprits who committed the murder and supplementary police report under Section 173 Cr.P.C. was submitted against those 4 persons. The grant of pardon was considered at that stage when yet the case was not committed of those 4 persons for trial to the court of Sessions. It was not a case of grant of pardon by Chief Judicial Magistrate to one of the accused already facing trial before Additional Sessions Judge, rather the accused- applicant satisfied the court of Chief Judicial Magistrate that whatever statement he was making revealed true facts pertaining to the murder and he along with his associates were yet to be committed to the court of Sessions. There appears to be no bar for considering the application by the Chief Judicial Magistrate and on being satisfied of the genuineness of the plea of the accused-applicant, he passed the impugned order. Since at that stage, the case had yet not been committed to the court of Sessions, it was not obligatory, in the circumstances, for the Chief Judicial Magistrate to first commit him to the court of Sessions or to refer his application to the court of Sessions for consideration. Since at that stage, the case had yet not been committed to the court of Sessions, it was not obligatory, in the circumstances, for the Chief Judicial Magistrate to first commit him to the court of Sessions or to refer his application to the court of Sessions for consideration. Supplementary challan being distinct in nature than the earlier one and being independent of the evidence already collected in the case, report was submitted on the basis of collection of new evidence during further investigation of the case by the police. The Chief Judicial Magistrate was well within his right to apply his mind on the application moved by one of the accused for the purpose of grant of pardon. In his order dated 12.9.1996, Chief Judicial Magistrate, Karnal has strictly followed the procedure pertaining to grant of pardon, in the sense that the requirement of sub-section (4) of Section 306 Cr.P.C. has not been lost sight and the order granting pardon is a conditional one as the Chief Judicial Magistrate has directed the examination of the accused-applicant as required under Section 306(4) of Cr.P.C. The stage of commitment follows the examination of such an accused who turns approver and seeks grant of pardon. 6. In the circumstances, three is hardly any legal flaw in the procedure adopted by the Chief Judicial Magistrate in considering the application for grant of pardon to accused-Surinder Singh @ Chhinda. There is, thus, no merit in the petition and the same is dismissed as such and order dated 28.1.1999 of this Court staying further proceedings is vacated. 7. Surinder Singh @ Chhinda who turned approver has moved Crl. Misc Application No. 9705 of 2000 seeking earlier disposal of his case as he is under detention despite the fact that he was granted pardon by Chief Judicial Magistrate, Karnal. He is required to be kept under custody until the termination of the trial as per Section 306(4)(b) of Cr.P.C His grievance is that he is under detention since the order of Chief Judicial Magistrate whereas the accused are already enjoying the liberty being on bail and he is facing detention. He seeks early hearing of his case. 8. Since Crl. Misc. No. 1634.M of 1999 is dismissed, it is directed that expedient steps be taken for disposal of the case.