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2014 DIGILAW 999 (HP)

Barkat Singh v. State of Himachal Pradesh

2014-07-30

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral). The petitioner by way of this petition has invoked the inherent powers of this Court under Section 482 of the Code of Criminal Procedure wherein it has been alleged that the petitioner has been the victim of apathy of the system. The petitioner is a permanent resident of Chandigarh. FIR No. 167 of 2010 was registered against him and another person under Sections 452, 427, 506 and 34 IPC at Police Station, Dhalli, Shimla. The petitioner as well as other accused was summoned in the case and notice of accusation was put to them on 23.5.2012 and the case was thereafter listed for prosecution evidence. 2. However, before this, on 2.2.2011 the complainant had already moved an application to Deputy Commissioner, Shimla for withdrawal of the case against the accused. The Additional District Magistrate summoned the complainant as well as accused persons to his office on 1.8.2012 and sought the affidavits and recorded their statements and accordingly, the matter was referred to the Government for withdrawal of the prosecution against the petitioner and other accused. The matter was duly considered at the Government level and it was recommended that the prosecution against the accused be withdrawn and even a communication to this effect was sent to the office of the District Attorney, Shimla vide diary No. 147 dated 26.3.2013 (Annexure R-1). 3. Prior to this, the fact regarding the pendency of withdrawal proceedings were immediately brought to the notice of the Court on 1.8.2012 and on these basis, the petitioner alongwith his co-accused were exempted from personal appearance on 2.8.2012, 8.11.2012, 2.1.2013 and 18.3.2013. Thereafter, it appears that the Presiding Officer was transferred and the proceedings were repeatedly adjourned on 18.5.2013, 15.6.2013, 15.7.2013 and 24.8.2013. 4. Thereafter the case was transferred from the Court of Judicial Magistrate 1st Class (2), Shimla to the Court of Judicial Magistrate 1Ind Class (8), Shimla and on 1.10.2013 the following order came to be passed: “Case received by transfer from the court of Ld. JMIC (2), Shimla, H.P. Case taken up from proper order. Let accused be summoned on 14.10.2013, meanwhile office to check and report on date fixed.” 5. On 14.10.2013, it was reported that the Presiding Officer was on training and the case was fixed for proper order on 22.10.2013. JMIC (2), Shimla, H.P. Case taken up from proper order. Let accused be summoned on 14.10.2013, meanwhile office to check and report on date fixed.” 5. On 14.10.2013, it was reported that the Presiding Officer was on training and the case was fixed for proper order on 22.10.2013. On 22.10.2013, the Bar had abstained from the work and the case was ordered to be listed for 30.11.2013 for which date the accused were also summoned. On 30.11.2013 summons issued to the accused persons were received back unserved and they were ordered to be summoned again for 28.12.2013. Even on 28.12.2013, the accused were not served and were summoned for 25.2.2014 on which date the following order was passed: “However, application seeking exemption from personal appearance of accused namely Pankaj filed through counsel, which is considered and allowed for the reasons stated therein today only. Let absentee accused be produced on next date of hearing. Ld. counsel for accused persons has submitted that withdrawal proceedings are going on in the present case. Ld. APP has prayed time to check status of the present case. In view of this, be put up for the same on 28.03.2014.” 6. Thereafter, the matter came to be listed on 28.3.2014 and the following order was passed: “Application seeking exemption for personal appearance of accused persons namely Barkat Singh and Pankaj Singh filed, which is considered and allowed for the reasons stated therein for today only. Let previous order be again complied with for 03/05/2014.” 7. The case was listed on 3.5.2014 and the following order was passed: “Ld. counsel for both accused Sh. Roshan Bisht moved two separate applications for seeking the personal exemption of both accused before this court for today only. Considered and allowed in the interest of justice only for today for the reasons stated in applications itself. The Ld. counsel stated at bar that on next date of hearing he will ensure the presence of both accused. Both accused be produced on next date of hearing. Ld. APP sought time to move appropriate application for withdrawal of the proceedings against both accused. Prayer considered and allowed on the condition that no other adjournment will be given on the abovesaid subject. Now to come up on 24.5.2014.” 8. Both accused be produced on next date of hearing. Ld. APP sought time to move appropriate application for withdrawal of the proceedings against both accused. Prayer considered and allowed on the condition that no other adjournment will be given on the abovesaid subject. Now to come up on 24.5.2014.” 8. The orders passed on various dates have been reproduced only to show that despite the District Attorney having already been specifically instructed to withdraw the case by the Additional District Magistrate vide his letter dated 26.3.2013, yet it was repeatedly being represented that the withdrawal proceedings were going on. Notably after 26.3.2013 as many as six different Assistant Public Prosecutors appeared in this case and yet none of them pointed to the Court that they had already received instructions for withdrawal of the case vide letter dated 26.3.2013 and the proceedings continued to be conducted in a mechanical manner. 9. The application for withdrawal actually came to be drafted only on 23.5.2014 i.e. after about one year one month gap and the same was presented on 24.5.2014. This time it appears the seventh APP, who conducted the case took trouble of drafting the application and presented it before the Court and the following order came to be passed: “Ld. vice counsel for both accused moved two separate applications for the personal exemption of both accused before this Court for today only. Both exemption applications considered and disallowed as both applications are not supported with any documentary evidence. Moreover, on perusal of previous order sheets it came to the knowledge of this Court that since 2.8.2012, fifteen hearings took place in this matter and accused Pankaj was not present in any of the above mentioned 15 hearings and accused Barkat Singh attended Court only once i.e. on 25.2.2014 during all these 15 hearings. This shows that how both accused are misusing the provisions of Section 205 of Cr.P.C. Under these circumstances, it could be inferred that absence of both accused is intentional. In these circumstances this Court is left with no other option but to issue non-bailable warrants for accused Barkat Singh as well as for accused Pankaj. Let accused Barkat Singh and Pankaj Singh be served through non-bailable warrants. Accordingly, their personal and surety bonds are cancelled and forfeited to the State of H.P. Consequently, both accused namely Barkat Singh and Pankaj be summoned by non-bailable warrants returnable for 21.6.2014. Let accused Barkat Singh and Pankaj Singh be served through non-bailable warrants. Accordingly, their personal and surety bonds are cancelled and forfeited to the State of H.P. Consequently, both accused namely Barkat Singh and Pankaj be summoned by non-bailable warrants returnable for 21.6.2014. Proceedings under Section 446 of Cr.P.C. also be initiated against both aforesaid accused as well as against their sureties for the date fixed. Ld. APP for the State moved an application under Section 321 of Cr.P.C. for withdrawal from prosecution of the case against all accused. On the other hand, Ld. counsel for both accused moved an application on behalf of both accused for seeking appropriate directions to the prosecution from the court regarding placing of permission which is accorded by the Government of H.P. to withdraw prosecution against both the accused and to do the needful in this direction. The above said application filed by the Ld. counsel for both the accused is considered and dismissed as there is no issue such directions to the prosecution and this Court is a trial Court thus is not having the inherent powers given under Cr.P.C. Moreover, the Ld. APP has already moved an application under Section 321 of Cr.P.C. In view of this, now file to be tabled on 21.6.2014 for consideration of application filed under Section 321 of Cr.P.C.” 10. The order to say least is not in consonance with law. I fail to understand as to how in the teeth of the application filed by the prosecution under Section 321 Cr.P.C. could the proceedings under Section 446 Cr.P.C. be initiated that too after holding that the petitioner and his co-accused were misusing the provisions of Section 205 Cr.P.C. 11. As already noticed above, the proceedings after 1.8.2012 were repeatedly being adjourned at the instance of the prosecution on the ground that the matter for withdrawal of the proceedings was pending. Though, as observed, the Additional District Magistrate had already asked the District Attorney vide his letter dated 26.3.2013 to withdraw the said proceedings. Therefore, it could not be said that the petitioner and other co-accused had been misusing the provisions of Section 205 Cr.P.C. In any event, the proceedings under Section 446 Cr.P.C. could not have been ordered to be instituted. 12. It is not to suggest that the application under Section 321 Cr.P.C. was required to be allowed immediately on its presentation. Therefore, it could not be said that the petitioner and other co-accused had been misusing the provisions of Section 205 Cr.P.C. In any event, the proceedings under Section 446 Cr.P.C. could not have been ordered to be instituted. 12. It is not to suggest that the application under Section 321 Cr.P.C. was required to be allowed immediately on its presentation. This is an enabling provision and vests in the Public Prosecutor or Assistant Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person and the Court has the discretion to permit or not permit the application for withdrawal Section. But did the facts and circumstances of this case call for issuance of non-bailable warrants against the petitioner that too on the ground of misusing of the provision of Section 205 Cr.P.C. The answer is definitely no. The petitioner has become victim of the insensitivity and apathy of the system whereby his personal liberty has been put to stake on account of the callous and casual manner in which the trial has been conducted by the prosecution which has further been compounded by passing of the impugned order. This tendency has to be curbed because after all the status of the petitioner in this case at best was that of an accused and not of a convict, which definitely entitled him for certain rights under the Constitution. 13. The right to life is the most fundamental of all human rights and any decision affecting human life, must call for the most anxious scrutiny. Article 21 of the Constitution is a repository of all human rights, essential for a person or a citizen and inherent in the right to life is the right to personal liberty. The two rights i.e. (i) right to life and (ii) personal liberty have been made of paramount importance and Courts are over zealous to protect them. 14. Another fact which pricks the conscious of this Court is that as per the affidavit filed by the petitioner herein, he is aged 77 years and, therefore, atleast this fact ought to have been taken into consideration by the learned Court below before passing the impugned order. To say the least the manner in which the proceedings have been conducted, leave much to be desired. 15. To say the least the manner in which the proceedings have been conducted, leave much to be desired. 15. For all the reasons aforesaid, the impugned order dated 24 5 2014 passed by Judicial Magistrate IInd Class (8) Shimla in Cr Case No. 77-2 of 13/11 titled State of H.P. vs. Barkat Singh, is set-aside. The Court below is directed to decide the application under Section 321 Cr.P.C. expeditiously and in no event later than 30.9.2014 totally uninfluenced by the observations made hereinabove which needless to say have been made solely for the disposal of the present petition. The parties through their counsel are directed to appear before the trial Court on 7.8.2014. The Registry of this Court is directed to ensure that the records of the case are transmitted and received by the trial Court before the date fixed in the case. The interim order dated 20.6.2014 is vacated.