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2005 DIGILAW 428 (PNJ)

State Of Punjab v. Kashmir Singh

2005-03-23

S.S.SARON

body2005
Judgment S.S.Saron, J. 1. This criminal revision petition has been filed by the State of Punjab against the order dated 9.11.1989 passed by the learned Sessions Judge, Amritsar whereby the respondent- Kashmir Singh, who was an accused in the case has been discharged. 2. The facts of the case are that case FIR No. 425 dated 11.10.1988 was registered at Police Station Sadar, Amritsar for the offences under Sections 302 and 34 Indian Penal Code (`IPC for short) Sections 25 and 27 of the Arms Act, 1959 (`Act for short) and Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TDA Act for short) on the statement of Gora Singh son of Mulkha Singh, resident of Village Vallah. As per the statement of Gora Singh, it has been stated that he is resident of the Village Vallah and at night i.e. night of 11.10.1988 he along with his brother Tarsem Singh were sleeping in a room on a cot. On another cot his father Mulkha Singh was sleeping with their third brother aged about 12/13 years. Besides, his uncle (fathers brother) Makhan Singh alias Kala was sleeping in the Court-yard of their house. The remaining family members were sleeping in an another room. An electric bulb outside in the Court-yard was on. While they were asleep a Sikh youth at about 11.00 p.m. entered and asked Makhan Singh if his name was Mulkha Singh. Upon this he replied that he was Makhan Singh. Another person who, was standing in the street in the dark said that he was not Mulkha Singh. At this the person who had entered the Court-yard and was 6 feet in height aged about 27/28 years old, fair complexion, flowing beard, wearing white Kurta and Pyjama and yellow patka tied around his head entered the room and demanded to know as to who was Mulkha Singh. On this, Mulkha Singh, father of the complainant Gora Singh, sat on his cot, with folded hands replied that he was Mulkha Singh. The entrant then taunted him saying that he used to be with Lakha Singh, MLA and that he should call the MLA so that he could see in what way their Congress could help him. Saying this the person who entered gave burst from the assault rifle he was holding in his hand at Mulkha Singh killing him at the spot. Saying this the person who entered gave burst from the assault rifle he was holding in his hand at Mulkha Singh killing him at the spot. The shots hit Mulkha Singh on his cheek, neck and left shoulder. While leaving he threatened that in case an alarm was raised they would be shot dead. It has been stated that due to fear the complainant could not come at night to lodge a report and they had come in the morning to lodge the FIR. It is also stated that there were two persons in the street also. Accordingly, the case was registered for the aforereferred offences as stated above. After investigation, challan was presented in the Court of Additional Judge, Designated Court, Amritsar on 14.7.1989. Production warrants for the accused were issued and the accused appeared in the Court and he was given copies and documents of the challan. 3. The learned Additional Judge, Designated Court on 12.10.1989 passed two orders which read as under : "Present: Addl. PP for the State. Accused in custody. On consideration of the report under Section 173 Cr.P.C, and the documents submitted therewith I am of the opinion that there is,ground for presuming that the accused has committed the offence under Section 302 read with Section 34 I.P.C. Accused be charged accordingly. Sd/ A.J.D.C. 12.10.1989 Present : As before. Addl. PP for the State submits that offence under Section 3 of the T.D.A. Act is also made out. 1 do not find myself in agreement with this application. The deceased being all alone when killed there is no question of creating any terror in the mind of people at the time of the occurrence. Offence under Section 3 of the T.D.A. Act is not made out. Since no offence under Sections 3 and 4 of the T.D.A. Act is made out, this Court does not have the jurisdiction to try this case. The case is therefore, transferred to the Court of Chief Judicial Magistrate Amritsar for proceeding according to law. The accused is in custody. He be produced before him immediately hereafter. The file be also sent to the said Court immediately. Sd/ Additional Judge, Designated Court, Amritsar 12.10.1989." 4. The case is therefore, transferred to the Court of Chief Judicial Magistrate Amritsar for proceeding according to law. The accused is in custody. He be produced before him immediately hereafter. The file be also sent to the said Court immediately. Sd/ Additional Judge, Designated Court, Amritsar 12.10.1989." 4. On the same day i.e. 12.10.1989, the learned Additional Judge, Designated Court, Amritsar also framed charge against the respondent which reads as follows: "I, T.N. Gupta, Additional Judge, Designated Court, Gurdaspur at Amritsar hereby charge you Kashmir Singh accused as under : That on the night intervening 10/11-10-1988 in the area of village Vallah you alongwith Malkiat Singh, Dalbir Singh and Jaspal Singh (since dead), in furtherance of common intention of you all did commit murder by intentionally causing the death of Mulkha Singh by fire arms and thereby committed an offence punishable under Section 302 read with Section 34 I.P.C. and within my cognizance. And I hereby direct that you be tried by this Court on the abovesaid charge. Sd/ Additional Judge, Designated Court, Amritsar 12.10.1989 Certified that the abovesaid charge has been read over and explained to the accused in simple language which he understands. Sd/- (left Thumb), Additional Judge, impression), Designated Court, Amritsar Kashmir Singh, 12.10.1989." 5. In terms of the order passed, the accused was ordered to be produced before the Chief Judicial Magistrate, Amritsar. However, since the Chief Judicial Magistrate was on leave he was produced before the Judicial Magistrate 1st Class. On 23.10.1989, the Chief Judicial Magistrate, Amritsar ordered that the file be registered and on 24.10.1989 the learned Chief Judicial Magistrate committed the case to the Court of Session, Amritsar vide a detailed order. The learned Sessions Judge, Amritsar in terms of his impugned order dated 9.11.1989 discharged the accused holding that there was no sufficient ground left for proceeding against the accused in this case. The said order, as already noticed, is assailed by the petitioner-State in this revision petition. 6. Shri P.S. Thiara, learned Additional Advocate General, Punjab appearing for the State has submitted that the charge in the case was framed by the learned Designated Court on 12.10.1989 and after the charge has been framed, the learned Sessions Judge ought not to have discharged the respondent as the only course which was available with him was to proceed with the trial and to either acquit of convict the accused after trial. The order discharging the accused-respondent mid-way, it is contended, is illegal and is liable to be set aside. 7. In response, Shri Navkiran Singh, Advocate, learned counsel appearing for the respondent submits that no useful purpose would be served in continuing with the proceedings any further. He further submits that there were four persons involved in the case and out of them three other co-accused of the respondent have since died as they were killed in an encounter in the year 1988. Therefore, it is contended that the order discharging the respondent is liable to be maintained. It is also contended that the order dated 12.10.1989 of the Designated Court framing charge was in any case illegal and without jurisdiction as once the learned Designated Court had decided to transfer the case to the regular Court in terms of Section 18 of the TDA Act, then it was not for it to frame charge against the respondent. In support of this, he cites Niranjan Sigh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others, 1991 (1) RCR 89 (SC). 8. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. The question whether after having framed the charge, the learned Sessions Judge can discharge the accused, the provisions of Section 227 of the Code of Criminal Procedure (Cr.P.C. for short) may be noticed. The same read as under : 227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.". 9. A perusal of the above shows that it is on consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Sessions Judge considers that there is no sufficient ground for proceeding against the accused, he is to discharge the accused. 9. A perusal of the above shows that it is on consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Sessions Judge considers that there is no sufficient ground for proceeding against the accused, he is to discharge the accused. Therefore, this consideration process is to be undertaken before or at the time of framing charge and if the accused is not discharged, a charge is to be framed against him in terms of Section 228 Cr.P.C. The question whether once the charge has been framed can the accused be discharged is not res integra. The Honble Supreme Court in Ratilal Bhanji Mithani v. State of Rajasthan and others, AIR 1979 SC 94 observed as follows : "26-A. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry. After the framing of charge, if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and therefore, he can either acquit or convict the accused unless he decides to proceed under Sections 349 and 562 of the Code of 1892 (which correspond to Sections 325 and 360 of the Code of 1973)." 10. The above observations of the Supreme Court were followed by this Court in State of Punjab v. Mool Chand, 1992(3) RCR 483, wherein it was held that after framing charge, the trial Court has no power to discharge the accused and the Court has to proceed with the trial and convict or acquit the accused after recording the entire evidence. In view of the above pronouncements, the impugned order dated 9.11.1989 proceeding to discharge the accused after charge had been framed on 12.10.1989 was clearly illegal. 11. In view of the above pronouncements, the impugned order dated 9.11.1989 proceeding to discharge the accused after charge had been framed on 12.10.1989 was clearly illegal. 11. The contention of the learned counsel for the respondent that requires consideration is that the order dated 12.10.1989 passed by the learned Additional Designated Court, Amritsar ordering framing of the charge was itself illegal. 12. Section 18 of the TDA Act provides for power to transfer cases to regular Courts. It is provided that where after taking cognizance of any offence, a Designated Court is of the opinion that the offence is not triable by it, shall, notwithstanding that it had no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Cr.P.C. and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others (supra) cited by the learned counsel for the respondent, it was observed by the Supreme Court that where a Designated Court came to the conclusion that there exists no sufficient ground for framing a charge against the accused under Section 3(1) of the TDA Act, it must proceed to try the accused for commission of offence under other statutes. It was observed that this would tantamount to usurping jurisdiction and that therefore when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge under Section 3(1) of the TDA Act, it was justified in transferring the case to the Court of Session which along had the jurisdiction under the Cr. P.C. and that once Designated Court came to the conclusion that the evidence was not sufficient to frame a charge under Section 3(1) of the TDA Act, the Designated Court had no alternative but to resort to Section 18 and transfer the case to the competent Court under the Cr. P.C. and that once Designated Court came to the conclusion that the evidence was not sufficient to frame a charge under Section 3(1) of the TDA Act, the Designated Court had no alternative but to resort to Section 18 and transfer the case to the competent Court under the Cr. P.C. In view of the provisions of Section 18 of the TDA Act and the aforesaid judgment of the Supreme Court it has been contended by the learned counsel for the respondent that the order framing charge by the Designated Court was improper as it was simply to transfer the case once it came to the conclusion that an offence under the provisions of the TDA Act were not made out. 13. In my view this aspect is debatable as Section 18 of the TDA Act provides : "where, after taking cognizance of any offence, a Designated Court is of opinion that offence is not triable by it, shall, notwithstanding that it had no jurisdiction to try such offence, transfer the case for the trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence." 14. The perusal of the above provisions of the TDA Act shows that the matter regarding transfer of the case is to be considered by the designated Court after taking cognizance. Taking of cognizance depends on the facts and circumstances of each case and it is only when the Court applies its mind of the case that cognizance is said to be taken. This aspect, however, is not necessary to be gone into in this case as the order dated 12.10.1989 framing charge against the respondent is not under challenge and the petitioner if he was aggrieved against the order framing charge against him he should have availed his remedy in accordance with law. Therefore, it is not necessary to go into this aspect in the present proceedings. 15. Keeping in view the aforesaid circumstances and observations of the Supreme Court in Ratilal Bhanji Mithani v. State of Maharashtra and others (supra), it is evident that once charge has been framed against the accused, the trial Court has no power to discharge him and it could proceed with the trial and either convict him or acquit him. 16. 15. Keeping in view the aforesaid circumstances and observations of the Supreme Court in Ratilal Bhanji Mithani v. State of Maharashtra and others (supra), it is evident that once charge has been framed against the accused, the trial Court has no power to discharge him and it could proceed with the trial and either convict him or acquit him. 16. Accordingly, the revision petition is allowed and the order dated 9.11.1989 passed by the learned Sessions Judge discharging the respondent is set aside. The trial Court shall proceed with the trial from the stage at which it was after charge had been framed on 12.10.1989. Since the matter has been delayed considerably efforts shall be made to conclude the trial as expeditiously as possible and preferably within five months from the date appearance is put in before the learned Session Court. 17. The State and the respondent shall put in appearance before the learned Sessions Judge at Amritsar on 27.5.2005. The records of the case shall be sent back. The respondent shall furnish personal bond and surety to the satisfaction of the trial Court. The learned Sessions Judge may either himself deal with the case or transfer it to any of the Additional Sessions Judge in accordance with law.