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2021 DIGILAW 601 (PNJ)

Gagandeep Singh v. State Of Punjab

2021-03-16

RAJ MOHAN SINGH

body2021
JUDGMENT Raj Mohan Singh, J. - This is second application under Section 482 Cr.P.C for addition of Section 302 IPC in the head note of the main case i.e. CRM-M No.879 of 2021, which was decided by this Court on 23.02.2021. 2. Earlier CRM No.6025 of 2021 was filed by the applicant/petitioner for the same relief. The said application was taken up on 04.03.2021. The said application was filed at the time when the applicant/petitioner was not released from the jail in view of addition of offence under Section 302 IPC at the time of taking cognizance by the trial Court. On 04.03.2021, learned counsel for the applicant/petitioner submitted that since the petitioner had been released on bail, therefore, he did not press the said application. The factum of release of the applicant/petitioner was also verified by the learned State counsel on the basis of custody certificate. In view of aforesaid position, CRM No.6025 of 2021 was ordered to be dismissed as withdrawn. 3. Thereafter, the trial Court/Additional Sessions Judge, Sangrur vide order dated 10.03.2021 passed the following order:- "The defence counsel has moved an application seeking exemption of accused from personal appearance on the ground that he is admitted in Civil Hospital, Sangrur. A detailed report submitted by Superintendent, Central Jail Patiala, is lying on the file to the effect the 'accused was released from custody on 03.03.2021'. However, as is revealed from the previous order, he was released only under Section 304 of IPC as per order dated 23.02.2021 of the Hon'ble High Court and not 302 of IPC. Let, warrants of arrest of accused Gagandeep Singh be issued with immediate effect for 16.03.2021. Consequently, the application for grant of exemption from personal appearance of accused stands dismissed." 4. Owing to the aforesaid status, the applicant/petitioner has preferred this application. 5. Main case i.e. CRM-M No.879 of 2021 was decided on 23.02.2021, thereby granting regular bail to the applicant/petitioner on the basis of prima facie consideration of the following facts:- "(i). FIR was registered on 08.06.2020 by Jaswant Singh on the allegations that the petitioner and others were demolishing the 'Wat' of the field, where the complainant was already working along with Jarnail Singh and Jeet Singh @ Jeeta. On seeing the demolition of the 'Wat', the complainant tried to restrain the petitioner. Brother of the complainant also came there. FIR was registered on 08.06.2020 by Jaswant Singh on the allegations that the petitioner and others were demolishing the 'Wat' of the field, where the complainant was already working along with Jarnail Singh and Jeet Singh @ Jeeta. On seeing the demolition of the 'Wat', the complainant tried to restrain the petitioner. Brother of the complainant also came there. Complainant party tried to stop the accused from demolishing the 'Wat' and thereafter, both the parties went their respective homes. At about 2:45 PM, petitioner, Harjit Singh and Gurdev Singh came to the fields on their tractors fitted with ploughs. Petitioner was driving the tractor, whereas Harjit Singh and Gurdev Singh were sitting on both sides. Petitioner brought the tractor near to the complainant and turned the same on the side of the complainant. When the complainant tried to save himself, a plough pierced into his right thigh. Petitioner kept on driving the tractor and took two rounds of the field. Complainant fell down and the plough came out of the thigh with flesh. When the complainant was lying in the field, petitioner lifted the ploughs up and again put the same on the complainant and plough hit on the left foot of the complainant. Petitioner again lifted up the ploughs, which hit the head of the complainant. On hearing alarm, the assailants fled away from the spot. (ii) Initially, the FIR was registered for the offences under Sections 323, 324, 120-B and 149 IPC against the petitioner and four other persons. Jaswant Singh died on 10.07.2020. Statement of his brother Beant Singh was recorded on 10.07.2020 and offence under Section 302 IPC was added vide DDR No.43 dated 10.07.2020. (iii) According to the statement of Beant Singh, his brother Jaswant Singh was referred from Civil Hospital on 12.06.2020 i.e. after four days of the occurrence. He was admitted in Amar Hospital, Patiala, from where he was discharged on 17.06.2020. The complainant party took Jaswant Singh at home and they used to get dressing done by calling doctor on daily basis. Complainant also used to get dressing of Jaswant Singh done every week from Amar Hospital, Patiala. (iv) Accused persons claimed that they have been falsely implicated and inquiry was marked to Superintendent of Police, Detective, Barnala on the application of wife of the petitioner. Complainant also used to get dressing of Jaswant Singh done every week from Amar Hospital, Patiala. (iv) Accused persons claimed that they have been falsely implicated and inquiry was marked to Superintendent of Police, Detective, Barnala on the application of wife of the petitioner. Superintendent of Police, Detective, Barnala concluded the inquiry by holding that on 08.06.2020, when Jaswant Singh was setting right the 'wats' with spade in his field, the petitioner was cultivating the land with tractor. Due to previous enmity, Jaswant Singh tried to attack the petitioner after boarding over the cultivators of the tractor. Petitioner all of sudden rotated the tractor and due to which, cultivators also rotated and Jaswant Singh fell down from the cultivators. Petitioner was not aware about the fact that Jaswant Singh could get grievous injuries or he could die. Offences under Sections 302, 149 and 120-B IPC were not found to be made out and offence under Section 304 IPC was recommended. Ultimately, challan was presented for the offence under Section 304 IPC after making the inquiry report of Superintendent of Police, Detective, Barnala to be part of the challan. (v) As per MLR of the deceased, five injuries were found on his person. All the five injuries were declared to be simply in nature by the doctor(s) on 05.10.2020 on the basis of ortho and surgical opinion of the doctor(s) of Civil Hospital, Sangrur and medical record of Amar Hospital, Patiala. In CECT Scan of Jaswant Singh, liver, gall bladder, pancreas, spleen, kidney, urinary bladder and prostate were found to be normal. CT findings did not show any damage to the aforesaid organs. (vi) Jaswant Singh remained in Government Hospital from 08.06.2020 to 11.06.2020. On 11.06.2020, he was admitted in Amar Hospital and was discharged from the hospital on 17.06.2020 in normal condition. He died on 10.07.2020 due to chest pain. The cause of death was Asphyxia due to Aspiration." 6. Aspiration happens when someone eats or drinks and the same goes down the wrong pipe. Asphyxia is a condition of deficient supply of oxygen to the body. Asphyxia can be caused by injury to or obstruction of breathing passageways, as in strangulation or the aspiration of food (choking). 7. On the basis of prima facie consideration of aforesaid facts, this Court granted regular bail to the petitioner vide order dated 23.02.2021. 8. Asphyxia is a condition of deficient supply of oxygen to the body. Asphyxia can be caused by injury to or obstruction of breathing passageways, as in strangulation or the aspiration of food (choking). 7. On the basis of prima facie consideration of aforesaid facts, this Court granted regular bail to the petitioner vide order dated 23.02.2021. 8. Petitioner was released from jail after some delay on 03.03.2021. Owing to the insertion of offence under Section 302 IPC at the time of taking cognizance by the trial Court, now the trial Court has issued warrants of arrest against the petitioner for 16.03.2021. 9. Learned counsel for the applicant/petitioner submitted that after filing of challan and taking of cognizance by the trial Court, custodial interrogation of the petitioner is not required. Initially, offence was under Section 302 IPC and the same was converted into offence under Section 304 IPC on the basis of inquiry conducted by the Superintendent of Police, Detective, Barnala, which was made part of the challan and challan was submitted only under Section 304 IPC. Learned counsel further submitted that this Court at the time of passing of order dated 23.02.2021 was sanguine of the fact that offence under Section 302 IPC has been converted into offence under Section 304 IPC, when the story of the prosecution was prima facie found to be false. The bail has not been cancelled by the Court and even prosecution has not sought cancellation of bail in any manner. Learned counsel relied upon Pradeep Ram Vs. State of Jharkhand and another, (2019) 3 RCR(Cri) 538. 10. On the other hand, learned State counsel duly assisted by learned counsel for the complainant relied upon Hamida Vs. Rashid @ Rasheed and others, (2007) 2 RCR(Cri) 917 and contended that for newly added offence, the petitioner has to surrender and apply for bail. Petitioner is not entitled to take benefit of earlier bail for the enlarged offence. 11. I have considered the arguments raised by learned counsel for the parties. 12. Evidently, in Pradeep Ram's case (supra), ratio of Hamida's case (supra) was considered. Pradeep Ram's case (supra) was based on FIR No.02/2016, which was registered in Police Station Tandwa for the offences under Sections 414, 384, 386, 387, 120-B IPC read with Sections 25(1-B) (a), 26, 35 of the Arms Act and Section(s) 17(1) and (2) of the Criminal Law Amendment Act. Pradeep Ram's case (supra) was based on FIR No.02/2016, which was registered in Police Station Tandwa for the offences under Sections 414, 384, 386, 387, 120-B IPC read with Sections 25(1-B) (a), 26, 35 of the Arms Act and Section(s) 17(1) and (2) of the Criminal Law Amendment Act. The accused therein was granted regular bail on 10.03.2016 after his arrest. On 10.03.2016, charge-sheet was submitted under the aforesaid offences and Chief Judicial Magistrate, Chatra took cognizance of the aforesaid offences. The accused filed a petition under Section 482 Cr.P.C for quashing of entire criminal proceedings in the High Court including the order taking cognizance by the Chief Judicial Magistrate. On 19.09.2016, Chief Judicial Magistrate framed charges against the accused for the aforesaid offences. High Court stayed further proceedings in FIR No.02/2016. On the prayer of the Investigating Officer, the offences under Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 were also added against the accused. The Central Government issued an order dated 13.02.2018 in exercise of power conferred under Sub-Section 5 of Section 6 read with Section 8 of the National Investigation Agency Act, 2008 suo moto directing the National Investigation Agency to take up the investigation of FIR No.02/2016 and the aforesaid Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act were added as scheduled offences. In view of aforesaid, NIA re-registered the FIR as FIR No.RC-06/2018/NIA/DLI dated 16.02.2018. The accused was in custody in some other case at that time. His custody was sought by way of production warrant for this new case registered by NIA. He was produced from the jail and was remanded to judicial custody by order of Special Judge dated 25.06.2018. That is how, the Court appreciated the facts of that case. 13. After due consideration in Pradeep Ram's case (supra), the Court arrived at following conclusions:- "(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested. (ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C, 1973 for arrest of the accused and his custody. (iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C, 1973 can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. (ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C, 1973 for arrest of the accused and his custody. (iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C, 1973 can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail. (iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail." 14. Admittedly, after filing of challan, the Court has taken cognizance in the present case. Investigating Agency is not left with any such scope of investigation. The bail of the petitioner has not been cancelled, nor the cancellation has been sought by the Investigating Agency or by the complainant. Investigating Agency can seek order from the Court under Section 437(5) or under Section 439(2) Cr.P.C for arrest of the accused, but in the present case, the petitioner is not in custody, nor investigation is pending. With the addition of Section 302 IPC at the time of taking cognizance, the Investigating Agency has not sought any permission to investigate the case further, rather as per the facts of the present case, offence under Section 302 IPC was investigated by means of inquiry by Superintendent of Police, Detective, Barnala and the report submitted by the Superintendent of Police was made part of the challan and offence under Section 302 IPC was converted into offence under Section 304 IPC. The facts of the present case do not strictly fall under the ambit of any such interpretation, rather the present case is based on its own facts, where Section 167(2) Cr.P.C cannot be resorted to as the same operates at a stage when the accused is in custody or where the accused is arrested or either an investigation is started or is yet to start. 15. Similarly, Section 309(2) Cr.P.C comes into operation only after taking cognizance and not during the period of investigation. Remand order under this provision can only be with judicial custody. Since the petitioner is not in custody, therefore, Section 309(2) Cr.P.C is not applicable. The aforesaid power relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial. 16. Evidently, the petitioner has been granted bail by this Court in Section 304 IPC, therefore, I deem it appropriate to direct the petitioner to appear before the trial Court on 22.03.2021. In the event of his appearance, the petitioner shall be granted regular bail in offence under Section 302 IPC by the trial Court, subject to its satisfaction. 17. Disposed of accordingly.