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2017 DIGILAW 1402 (HP)

Harveer Singh Malik v. State of H. P.

2017-12-16

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. All the aforementioned petitions are being disposed of by a common order, given, common question of fact and law, being, involved in all the instant petitions. 2. All the aforementioned Criminal Revision Petitions stand respectively directed, by, the petitioners, against an order recorded by the learned Additional Sessions Judge (2), Solan, on 30.05.2017, whereby, he dismissed the applications instituted there before, under, Section 227 of the Cr.P.C., for theirs being discharged AND also proceeded to order, for framing, of, charges against petitioner Harveer Singh, for, his committing offences punishable under Sections 302, 148 IPC read with Section 149 of the IPC and Section 25 of the Arms Act, whereas, he ordered for framing, of, charges against petitioners Rajesh Malik, Ekta Malik and Yoginder Malik, for, theirs committing an offence punishable under Section 302, 148 IPC read with Section 149 of the IPC. 3. In pursuance, to, the Investigating Officer concerned, carrying out Investigations vis-a-vis the offences embodied in FIR bearing No. 68/16, of 27.06.2016, registered at Police Station Dharampur, he filed a detailed report, under, Section 173 of the Cr.P.C., before the learned Committal Court concerned, (I) whereupon, the latter pronounced an order, committing, the accused to face trial before the learned Sessions Judge concerned. Since, the charges framed against the accused are respectively, under Sections 302, 307, 147, 148 of the IPC, read with Section 149 of the IPC and Section 25 of the Arms Act, (ii) thereupon, for assessing the respective inculpatory roles of the accused, in the offences in respect whereof charges stood framed against them, it is imperative, to reproduce the manner in which relevant occurrence, took place:- "On 26.06.2016, Smt. Taranjit Kaur w/o. Sh. Paramjit Singh, R/o VPO Mandvi, Police Station Khanauri, Tehsil Munak, District Sagrur, Punjab, presently residing at House No. 522, Tribunal Colony, Kansal, near Sector 01, Chandigarh, aged about 28 years got her statement recorded under Section 154 Cr.P.C., with PSI Dalip Singh in PGI, Chandigarh, stating therein that her husband Paramjit Singh was running a restaurant under the name and style of Urban Dhaba, which was taken on rent and located by the side of NH-5, in Lower Sanvara, District Solan and she also used to help her husband in the above said restaurant. Hasandeep, the nephew of her husband, helps them in running the restaurant. Hasandeep, the nephew of her husband, helps them in running the restaurant. According to the complainant, on the same day when she was sitting on the counter alongwith her husband, a group of tourists comprising 10/15 people sitting in their restaurant, who had placed orders for bread-toast, maggi and tea. Ram Singh and Naresh Kumar were attending them. When her husband had gone to the kitchen, then an elderly person, who seemed to be more than 50-years old and was wearing a white check shirt, got up and came to them at the counter and said to Hasandeep and her that the toast served by them are not good, whereupon, she reply that we buy fresh bread and butter every day and in the meanwhile a boy from the said group, who wore a blue T-shirt with round neck also came to the counter and began speaking loudly and hearing his voice, her husband came to the counter from the kitchen. He said to these people that they need not pay in case they were not happy with the bread toasts and they would not have a reason to complaint the next time. At which, the elderly person said as to who would come next time and began hurling abuses, whereupon, her husband asked them to leave the place and in no time, a lady from the ground who wore a yellow salwar and a cream shirt came to the counter and stepped on to the chair and then climbed on to the counter and entered into a scuffle with my husband. In the meanwhile, a body from the group, who wore parrot green T-shirt with another person, who wore a blue shirt and had glasses on also approached the counter and all of them began hurling abuses and scuffled with them. And the lady, who had climbed onto the counter told these people as to what they were doing and asked them to get the pistol lying in the vehicle to kill them. And the lady, who had climbed onto the counter told these people as to what they were doing and asked them to get the pistol lying in the vehicle to kill them. Upon which, the boy, who wore blue T-shirt went to the vehicle and the boy wearing parrot green T-shirt and the person wearing blue shirt and spectacles kicked the glass of the kitchen door and broke it and both of them with the lady who had climbed onto the counter and the elderly person wearing check shirt went to the kitchen and came into the counter and all four of them scuffled and began giving beatings to Hasandeep and her husband. In the intervening time, the boy wearing blue T-Shirt came there with a silver coloured pistol and began firing on Hasandeep and her husband, as soon as, he entered into the counter. She asked the boy, who wore blue T-shirt and was firing, to fire one bullet at her as well but he ran away. As soon as this boy ran away, another boy who wore parrot green colour T-shirt, came inside with pistol and lady wearing yellow Salwar asked him to run away with her but he argued that he has sustained injuries and he will definitely kill her. At that time, Ram Singh, the service boy of their restaurant dragged this boy out. All of these people along with other members of the group boarded a tempo traveler bearing the registration number of UP and fed away from the spot towards the downward side. She with the assistance of other employees of the restaurant, took her husband and Hasandeep, who also had sustained bullet injury in this altercation, to CHC, Dharmapur, for treatment, where the doctors declared her husband as dead and Hasandeep, who had sustained bullet injuries in his chest was referred to PGI, Chandigarh, for further treatment and she accompanied Hasandeep to PGI, Chandigarh. According to the complainant, she can identify everyone involved in the fight. All of them got together and fought with her husband and Hasandeep and have killed her husband and fired on Hasandeep and have grievously injured him. On the basis of the aforesaid statement of the complainant, FIR was registered in the police station concerned." 4. According to the complainant, she can identify everyone involved in the fight. All of them got together and fought with her husband and Hasandeep and have killed her husband and fired on Hasandeep and have grievously injured him. On the basis of the aforesaid statement of the complainant, FIR was registered in the police station concerned." 4. Before proceeding, to, make a pronouncement, with respect to the validity, of, the orders, pronounced by the learned Additional Sessions Judge concerned, (i) whereby, he dismissed the applications preferred before him, under, Section 227 of the Cr.P.C., wherein, the respective applicants, sought theirs being discharged vis-a-vis the incriminatory roles ascribed qua them, by the Investigating Officer, in the latter's report filed, under Section 173 of the Cr.P.C., (ii) also before assessing, the validity, of the pronouncement recorded by the learned Addl. Sessions Judge concerned, whereby, he ordered for framing of charge, against, petitioner Harveer Singh, for his committing offences punishable under Sections 302, 148 IPC read with Section 149 of the IPC and Section 25 of the Arms Act, (iii) besides ordered, for framing of charge against petitioners Rajesh Malik, Ekta Malik and Yoginder Malik, for, theirs committing, an offence punishable, under, Section 302, 148 IPC read with Section 149 of the IPC, (iv) it is imperative to bear in mind, the principles governing the exercise of revisional jurisdiction by this Court. The imperative principles enjoining theirs being borne in mind, by this Court, while its exercising jurisdiction, vested under Section 397 of the Cr.P.C., are, embodied in a decision, of, the Hon'ble Apex Court, reported in a case titled, as, Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 , the relevant paragraphs No. 17, 18 and 27.1 to 27.14 are extracted hereinafter:- "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. 18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases. 27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. 27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1 Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any Specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide Specific protection to an accused. 27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10 It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11 Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12 In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. 27.12 In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14 Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge." (pp. 477 & 482, 483) 5. Readings, of, the hereinabove extracted relevant paragraphs, of, the verdict pronounced by the Hon'ble Apex Court, in Amit Kapoor's case (supra), make, an abundantly clear display (i) of orders pronounced, on, an application constituted, under, the provisions of Section 227 of the Cr.P.C., before the Court concerned, being a definite opinion formed by the Court concerned, in respect of commissions by the accused, of, the offences alleged against them, (ii) whereas, an order rendered, for, framing a charge being merely a tentative opinion. Furthermore, readings of the relevant paragraphs, makes, a disclosure (iii) that where the order, for, framing charge is rendered by the Court concerned, upon its exercising statutory jurisdiction vested in it, under, Section 228 of the Cr.P.C., AND, (iv) the orders recorded, upon, an application constituted under Section 227 of the Cr.P.C., (v) ARE both well founded, upon, existence of sufficient incriminatory material also with the relevant material, making, disclosures, of, the inculpatory roles ascribed, by the Investigating Officer concerned, vis-a-vis the accused concerned, being well rested, upon, efficacious evidence collected by him, (vi) thereupon, the orders pronounced by the Court concerned, upon, its exercising jurisdiction under Section 227 of the Cr.P.C., AND upon his exercising jurisdiction under Section 228 of the Cr.P.C., hence, not, warranting any interference. Moreover, it also stands propounded therein, that, it being not open, for the revisional Court, to make deep delvings into the record, for forming an opinion vis-a-vis the admissibility and reliability of the documents existing on records, (vii) on anvil whereof, the Court concerned, records orders, while, its exercising jurisdiction under Section 227 of the Cr.P.C., and under Section 228 of the Cr.P.C. 6. Bearing in mind the aforesaid principles of law AND also taking into consideration, the heinousness, of the offences committed by the accused, it is deemed appropriate, to, from the hereinabove extracted relevant facts appertaining to the occurrence, make (a) discernments vis-a-vis the incriminatory roles ascribed therein vis-a-vis each of the accused, (b) the sufficiency, of, evidence in respect thereto collected by the Investigating Officer, (c) the learned Addl. Sessions Judge, concerned in making the orders impugned before this Court, his taking into consideration, the evidentiary worth, of, the entire material, as stood placed before him. A perusal of the status report, discloses, of (i) accused Desh Pal instigating the commission of offences; (ii) accused Harveer Mallik instigating perpetration, of, principal offences, by principal accused one Rahul, instigations' whereof being comprised in (a) his not dissuading accused Rahul, from, collecting fire arms, from, the vehicle, wherein it was kept; (b) his breaking open, the door of the kitchen AND proceeding there into, for assaulting, the victims Paramjeet Singh and Hasandeep. Apparently Accused Rahul, is, the principal offender, who fired a bullet shot, from, a licenced pistol, of, his father accused Harveer Malik. (c) Recovery of pistol, being effectuated from him AND it being opined, by the FSL concerned, of, bullet shots being fired there from, (d) AND his snatching, the revolver of Paramjeet Singh and its recovery being effectuated from him, (e) of Harveer Malik, breaking open the door, of the kitchen and his assaulting victims Paramjeet Singh and Hasandeep. Accused Nikhil alias Rohit, is, ascribed an incriminatory role, of abusing and slapping accused Paramjeet Singh, from, the other side of the counter AND his throwing a chair at Paramjeet Singh, (f) His firing a gun shot, at him AND thereafter his, at the behest of his mother Rajesh Malik, hence bringing, a, pistol from the tempo traveler. Accused Ekta is ascribed an incriminatory role, of, hers attacking with a knife, both Paramjeet and Hasandeep. Accused Ekta is ascribed an incriminatory role, of, hers attacking with a knife, both Paramjeet and Hasandeep. Accused Rajesh Malik, is, ascribed an incriminatory role, of, his climbing onto the counter, besides assaulting victim Paramjeet Singh and Hasandeep Singh, as also, his slapping Paramjeet Singh. He is also assigned an incriminatory role, of, ordering accused Nikhil, his son to bring a pistol, from, the tempo traveler, for, with its user, his eliminating the complainant party. Accused Yoginder Singh, is assigned an incriminatory role, of assaulting Paramjeet Singh and Hasan Deep Singh, with a sword AND his breaking open the door, of the kitchen and entering there into, for, assaulting both Param Jeet Singh and Hasandeep Singh. (g) The independent witnesses, to, the occurrence in their previously recorded statements in writing, make ocular disclosures in respect of the aforesaid incriminatory roles assigned vis-a-vis each of the accused. The FSL report, makes, a loud bespeaking, in respect of the contents, of the parcels sent to it, for analyses, on theirs being analysed, physically and chemically, (i) ethyl alcohol being detected in the contents, of parcels P/1, P/2 and P/4. (ii) The quantity of ethyl alcohol, in parcel P/4 being 70.80Mg%. (iii) Firearms Exhibits E/9A and Exhibit E/10 being in working order in their present condition. (iv) The barrels of the fire arm, bearing evidence of recent firing. (v) The cartridge cases exhibits E/9B(1), E/9B(2), E/9B(3) and exhibits E/7D(1) being fired from, firearm E/9A (0.32 revolvers).3. (vi) The cartridge cases, exhibits E/7A(1), E/7A(2) and Exhibit E/7A(3) being fired from firearm E/10(7.65MM pistol). (vii) Bullets exhibit E/2 and exhibit E/7E, being fired, from firearm exhibit E/10 (7.65mm pistol). (viii) Bullets E/7d(2), E/19, E/24 being fired from firearm exhibit E/9/A (0.32 revolver). (ix) The pieces of bangles being of same diameter and type. (x) Two live cartridges and three cartridge cases, being found, in the camber, of revolver exhibit E/9A. (xi) Traces of copper jacketed bullet, being detected, on the holes front and back side of exhibit E/20A (T-shirt) and exhibit E/20b (vest). Traces of lead bullet being detected on the back side hole of exhibit E/20a (T-shirt). Traces of lead bullet being detected on the front side of T-shirt exhibit E/23. (xi) Traces of copper jacketed bullet, being detected, on the holes front and back side of exhibit E/20A (T-shirt) and exhibit E/20b (vest). Traces of lead bullet being detected on the back side hole of exhibit E/20a (T-shirt). Traces of lead bullet being detected on the front side of T-shirt exhibit E/23. Human blood of group "A" being detected on exhibit-1 (vest, Hasan deep), exhibit-12 (blood sample of Hasan Deep and exhibit 13-A (T-shirt of Rahul Malik), human blood being detected on Exhibit 4A (blood stained piece of card board piece), Exhibit 4-B (blood stained sugar pouches, Exhibit-6 (sword, exhibit-13b (lower/pajama, Rahul Malik), exhibit-18 (blood sample of Paramjeet Singh. (xii) The aforesaid revelations borne in the report, of, the SL concerned make loud bespeaking of the Investigating Officer concerned, hence, validly assigning inculpatory roles vis-a-vis the accused. 7. Moreover, the identity of the accused, stands cogently established, by eye witnesses, comprised, (a) in theirs validly identifying, the accused, during, the course of a valid test identification being held by the Investigating Officer, (b) predominantly also by CCTV footage, existing on record. Even though, the principal accused, stand, charged vis-a-vis offences, constituted under Sections 302, 307, 148 read with Section 149 of the IPC and Section 25 of the Arms Act, (c) whereas other co-accused stand charged with them, for theirs forming an unlawful assembly along with the principal accused, (d) thereupon, the vicarious penal liabilities, constituted under Sections 147, 148 and 149 of the IPC and Section 25 of the Arms Act, stand validly imputed vis-a-vis all the accused other than the principal accused. All the aforesaid incriminatory pieces of evidence, evidently stand borne in mind, by the learned Additional Sessions Judge concerned, in his refusing, to grant the espoused relief, to the accused AND evidently are also borne in mind by him, for charging the accused concerned, for commission of offences as disclosed in the apposite charge sheets framed vis-a-vis each of the accused. 8. 8. Be that as it may, all the reasons and conclusions, arrived at, by the learned Additional Sessions Judge, for pronouncing orders, upon, the applications, cast under Section 227 of the Cr.P.C., besides in his ordering, for, framing charges against the accused, in his exercising powers under Section 228 of the Cr.P.C., ARE (i) squarely rested upon prima facie credible pieces, of evidence collected, by the Investigating Officer concerned, during the course, of his holding investigations. (ii) Apart from the principal accused, the roles ascribed, in the relevant occurrence vis-a-vis the other co-accused, does not disqualify them, to be amenable for theirs being charged along with the principal accused, for theirs forming an unlawful assembly along with them, (iii) thereupon, they are rendered amenable, for theirs being charged along with them, for commission of offences under Section 147, 148 and 149 of the IPC and Section 25 of the Arms Act. The gravity and severity, of, ascriptions of incriminatory roles vis-a-vis each of the accused hence being well founded, upon, prima facie credible evidentiary material existing on record, (iv) thereupon, it is unbeftting for this Court, to, delve deep into the evidence collected, for, invalidating the opinion formed by the learned Additional Sessions Judge concerned, while, his pronouncing the impugned orders, rather it is befitting for this Court to validate the conclusions and opinions formed by the learned Court. Significantly, when all the pieces of evidence collected against the accused do not prima facie, discloses, of imputation of incriminatory roles vis-a-vis each of the accused being not prima facie borne out there from. 9. For the foregoing reasons, all the petitions are dismissed and the order impugned hereat is affirmed and maintained. Any observations made hereinabove shall have no bearings upon the merits of the case. The parties are directed to appear before the learned trial Court on 12th January, 2018. All pending applications also stand dispose of. Records be sent back forthwith.