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2006 DIGILAW 4297 (PNJ)

Gurtej Singh v. State Of Punjab

2006-11-09

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. By this common judgment, I propose to dispose of the present revision as well as Criminal Misc. No. 13369-M of 2006, as both the cases arise out of the same FIR and are based on almost same facts and orders. 2. The petitioner has filed the present revision against the order dated 14.2.2006 passed by Special Judge, Sangrur vide which the petitioner along with two others was ordered to be charged for offences under Sections 302, 201, 506, 34 IPC and under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. FIR was registered on the basis of a statement made by Sarabjit Kaur, wherein she stated that that her husband Nachhattar Singh used to work at the brick kiln of Shivji Ram. On 5.6.2004, as usual, said Nachhattar Singh went to the brick kiln for doing work. At about 9.00 P.M. Sarabjit Kaur learnt that her husband Nachhattar Singh was being beaten by Bikar Singh, Major Singh and Gurtej Singh at the Bus Stand of the village. She along with her brother-in- law reached there and saw that the aforementioned accused were beating her husband Nachhattar Singh near the benches lying there. They were giving kick and fist blows. Injuries were also given on his private parts. On the intervention of Sarabjit Kaur and her brother-in-law, Nachhattar Singh was rescued from the accused, who while leaving extended a threat to them that in case he was got admitted in any hospital or the police was informed, they would also receive the same treatment as meted out to Nachhattar Singh. Out of fear, Sarabjit Kaur brought her husband Nachhattar Singh to the house, where he died the same night at about 3.00 a.m. When the accused learnt about the death of Nachhattar Singh, they again came to her house in the morning and extended another threat that no information be given to the police otherwise she would be treated similarly as her husband. Feeling threatened, she had no other option but to cremate her husband in the morning. Finally, she took up courage as her relatives had come in the meantime and informed the police. On the basis of her statement FIR No. 70 dated 6.6.2004 was registered at Police Station Dhanaula under Sections 302, 201, 506, 34 IPC. 4. Feeling threatened, she had no other option but to cremate her husband in the morning. Finally, she took up courage as her relatives had come in the meantime and informed the police. On the basis of her statement FIR No. 70 dated 6.6.2004 was registered at Police Station Dhanaula under Sections 302, 201, 506, 34 IPC. 4. After the completion of the investigation, final report under Section 173 Cr.P.C. was presented by the police on 21.6.2004 against the three accused, including the present petitioner Gurtej Singh. After the commitment of the case to the Court of Sessions, charges were framed against the accused for the aforementioned offences and the trial of the case began. 5. On 1.4.2005, the police prepared supplementary challan against the three accused under Sections 304, 201, 506, 34 IPC as the relatives of the accused had submitted an application to Punjab State Human Rights Commission for the investigation of the case and, accordingly, Superintendent of Police (Detective), Barnala conducted further investigation, during which it revealed that there was no enmity of deceased Nachhattar Singh with the accused and that no weapon was used at the time of the occurrence. Further that it was a sudden dispute. The said supplementary challan was, accordingly, presented in the concerned Court. 6. Another supplementary challan was also submitted by the police on 4.7.2005 against the accused under Sections 302, 201, 506, 34 IPC and Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `the Act). 7. The supplementary challan submitted by the police on 4.7.2005 was duly entertained by the trial Court on 31.1.2006 and the accused were ordered to be charged for offence under Section 3(i)(x) of the Act besides other offences of IPC for which the accused already stood charged. 8. On 14.2.2006, it came to the notice of the trial Court that the supplementary challan had also been presented by the Investigating Agency on 2.4.2005 against the accused under Section 304 IPC instead of Section 302 IPC along with other sections. 8. On 14.2.2006, it came to the notice of the trial Court that the supplementary challan had also been presented by the Investigating Agency on 2.4.2005 against the accused under Section 304 IPC instead of Section 302 IPC along with other sections. The trial Court vide order dated 14.2.2006 held that the offence was prima facie disclosed under Section 302 IPC and not under Section 304 IPC as the accused were knowing that the injury will cause death in all probability or that the bodily injury caused was likely to cause death as it was so imminently dangerous. Accordingly, prayer of the prosecution for trying the accused under Section 304 IPC was rejected. The accused were ordered to be charge-sheeted for offences under Sections 302, 201, 506, 34 IPC and Section 3(i)(x) of the Act. 9. The present revision has been filed by the petitioner being aggrieved by the fact that the accused should have been tried under Sections 304, 201, 506, 34 IPC instead of under Sections 302, 201, 506, 34 IPC. In the connected petition i.e. Criminal Misc. No. 13369-M of 2006, the petitioner has prayed for setting aside of the order vide which the accused have been charged for offence under Section 3(i)(x) of the Act. The present revision and the aforementioned petition are being disposed of by this common judgment. 10. Arguments have been heard and the contents of the revision and the petition, besides reply to the petition have been perused. 11. The police had already presented the challan against the accused under Sections 302, 201, 506, 34 IPC in relation to the murder of Nachhattar Singh, husband of Sarabjit Kaur-complainant. All the facts were available to the police during the investigation from which it could be found that the accused were required to be challaned and thereafter charged for the aforementioned offences. While taking up the further investigation under Section 178(8) Cr.P.C. on account of the close relatives of the accused representing to the Punjab Human Rights Commission, the police did not care to seek any prior permission of the trial Court. During the subsequent investigation, conducted by the police on its own, the police tried to dilute the offence under Section 302 IPC to one under Section 304 IPC. During the subsequent investigation, conducted by the police on its own, the police tried to dilute the offence under Section 302 IPC to one under Section 304 IPC. Though there is no statutory requirement for the police to obtain permission from the Court concerned to further investigate into the matter yet the propriety demanded that it should have obtained permission to do so. 12. In the present case, charges were already framed against the accused under Sections 302, 201, 506, 34 IPC on 10.8.2004. The supplementary challan was presented on 1.4.2005 vide which the offence under Section 302 IPC was sought to be diluted by the Investigating Agency. In Ram Lal Narang v. State (Delhi Administration), 1979 SCC (Criminal) 479, the Honble Apex Court considered the powers of the police under Section 173(8) Cr.P.C. regarding further investigation by the police after the submission of charge-sheet and taking of cognizance by the Magistrate. It held that the right of the police to further investigate was not exhausted after the cognizance by the Magistrate but the police could exercise such right as often as necessary when fresh investigation came to light. However, it was expected of the police to seek formal permission from the concerned Court for further investigation as due regard and respect for the Court. The relevant portion of the judgment is reproduced hereinbelow :- "As observed by us earlier, there was no provision in the Cr.P.C., 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation." 13. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation." 13. The aforementioned view was reiterated by the Honble Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and others, 2004(2) Apex Criminal 609 : 2004(2) RCR(Crl.) 463 (SC). 14. In the present case there is no material available on the file from which it could be shown that the police sought the permission of the Court to conduct further investigation. The cognizance had already been taken and charge under Section 302 IPC besides other offences already stood framed against the accused. During the subsequent investigation, the police came to the conclusion that offence was not made out under Section 302 IPC but instead it was under Section 304 IPC, as there was no previous enmity between the parties and that it was a sudden occurrence. These conclusions arrived at by the police were not sufficient to hold that no offence under Section 302 IPC was made out. It was for the trial Court to consider all the aspects of the case as a whole and conclude on the basis of the evidence available on the file as to whether the offence made out was under Section 302 IPC or only under Section 304 IPC. Moreover, the further investigation was not conducted after taking formal permission from the concerned Court. As such the police was not competent to present the supplementary challan so as to proceed against the accused as if they were to be charged only under Section 304 IPC instead of Section 302 IPC. The trial Court was, thus, justified in rejecting the prayer of the prosecution to charge the accused under Section 304 IPC. 15. Coming to the other supplementary challan presented by police, it may be seen that statements of the witnesses were recorded under Section 161 Cr.P.C., wherein they mentioned about the allegations against the accused, which prima facie made them liable for offence under Section 3(i)(x) of the Act. 16. Material collected by the prosecution in holding the accused responsible for offence under Section 3(i)(x) of the Act did not dilute the main allegation of the prosecution against the accused. 16. Material collected by the prosecution in holding the accused responsible for offence under Section 3(i)(x) of the Act did not dilute the main allegation of the prosecution against the accused. To that extent the police proceeded on the right lines to collect sufficient material against the accused and then submit the supplementary challan, making them liable to be tried under Section 3(i)(x) of the Act. The trial Court, vide order dated 31.1.1006 was justified in finding the accused prima facie liable under Section 3(i)(x) of the Act and directing them to be charged for the said offence. Ultimately on 14.2.2006, the trial Court finally held that the accused were liable to be charged under Sections 302, 201, 506, 34 IPC and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 17. Accordingly, I do not find any merit in the present revision as well as Crl. Misc. No. 13369-M of 2006. The same are, consequently, dismissed.