Full Judgment Text
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PETITIONER:
ARVINDERVIR SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB & ANR.
DATE OF JUDGMENT: 05/08/1998
BENCH:
G.T. NANAVATI, S.P. KURDUKAR, SYED SHAH MOHAMMED QUADRI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Nanavati, J.
Leave granted.
Heard learned counsel for the parties.
This appeal is directed against he judgment and order
passed by the High Court of Punjab and Haryana in Criminal
Misc. No. 21068 of 1997. The appellant had filed that
application under Section 482 of the Code of Criminal
Procedure, for getting quashed the criminal proceedings
initiated pursuant to R.C. No. 33 of 1993 dated 8.10.93
filed by the C.B.I and the report made under Section 173 Cr.
p.c. to the Designated Court, on the ground that the said
complaint and the report do not disclose commission of any
offence and that initiation of the said proceedings amounts
to an abuse of the process of the Court. The High Court by
its order dated 24.9.97 dismissed that application on the
ground that the intention of the appellant was to delay the
proceedings and that no formal complaint under Section
195(1) (b) was required for issuing the process and that it
will be open to the appellant to take all the pleas
including the plea that the complaint does not disclose any
offence, at the time of framing of the charge.
The proceedings against the appellant have come to be
initiated under the following circumstances. On 8.2.93 a
criminal offence was registered at Ropar Police Station
against one IIarpreet Singh alias Lucky, on the basis of a
’Ruqua’ Sent by the appellant who was S.H.O. of Ropar Police
Station. it was alleged that Harpreet Singh alias Lucky and
one Surjeet Singh had abducted advocate Kulwant singh, his
wife and his child with an intention to murder them. During
interrogation Harpreet Singh was stated to have disclosed
that he and Surjeet singh had already committed murders of
those three persons. On the basis of that information the
police had raided a shop wherein Surjit Singh and Rulda
Singh were present. Both of them consumed cynadinc before
they could be apprehended by the police. During
investigation of that offence, on 12.2.93, Harpreet Singh
was stated to have made an extra judicial confession before
Avatar Singh, who was a Lambardar, that he and co-accused
Surjeet Singh had abducted those three persons, committed
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their murder and the dead bodies were thrown in Bhakara
Canal near Sirhind Floating Restaurant and that their car
was also thrown in that canal. Pursuant to that information
the police had recovered the car from the canal on 12.2.93.
On 11.3.93 an application was given by harpreet Singh to the
learned Sessions Judge, stating therein that he wanted to
make a confession and along with that application he had
also submitted a confessional statement which he wanted to
make. At this stage of the investigation, the Punjab and
Haryana Bar Association filed a writ petition in the High
Court praying that the investigation which was made by the
police in the said case registered against Harpreet Singh
was not fair and that an inquiry by C.B.I. may be ordered.
That writ petition was dismissed by the High Court. The Bar
Association had thereafter filed an appeal before this
Court. Allowing that appeal this Court directed the C.B.I.
to investigate the said case and also to submit a report to
this Court. The C.B.I. registered the case as R.C. No. 33 of
1993 and after investigation submitted the final report to
this Court on 7.3.1996 wherein following actions were
recommended:-
" (i) Harpreet Singh @ Lucky
s/o Gurmit Singh Saini, r/o Village
Bahadurpur, who is presently facing
trial in case FIR No. 10/93 of PS
Sadar, Ropar in the Designated
Court, Nabha has been falsely
implicated in the case.
(ii) SI Avindervir Singh, ASI
Darsahan Singh, Inspector Balwant
Singh and DSP Jaspal Singh are
prima facie responsible for the
false implication of Harpreet Singh
@ Lucky in the aforesaid case an
are liable for prosecution for
offences under Sections 193, 194,
211 and 218 IPC.
(iii) The State Government of
Punjab is to be requested for
taking suitable action against Shri
Sanjiv Gupta, DIG, Punjab Police
for his lack of supervision."
In the final report the CBI had also suggested that the
concerned Designated Court be directed to file a complaint
as required by Section 195 Cr.P. C. for prosecuting the
appellant and A.S.I. Darshan Singh, Inspector Balwant Singh
and D.S.P. Jaspal Singh under Sections 193, 194,211 and 218
IPC. Allowing the appeal on 10.5.96, this Court directed
that Harpreet Singh @ Lucky be released from jail forthwith,
transferred the trial from the Designated Court at Nabha to
the Designated Court at Chandigarh and directed the C.B.I.
to file necessary challan in accordance with the Code of
Criminal Procedure, before trial court at Chandigarh. A
consequential order was also passed by the Designated Court
for the release of Harpreet Singh on 16.5.96.
In view of the said directions a chargesheet was filed
by the C.B.I. in the Designated Court, Chandigarh, which
after receiving papers from the Designated Court at Nabha
issued process pursuance to which the accused came to be
arrested and confined in custody.
On 2.9.96 the appellant moved and application to the
Court at Chandigarh in R.C. No. 33 of 1993 praying that non-
bailable warrant issued against him be recalled and all
subsequent proceedings initiated and process issued pursuant
to the chargesheet filed by the C.B.I be rescinded in view
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of the bar contained in Section 195(1(b))(i) read with
Section 340 Cr. P.C. The contention of the appellant before
the Court was that until a complaint is filed by the
concerned Designated Court, after holding a preliminary
inquiry and after recording a finding to the effect that an
offence appears to have been committed in or in relation to
a proceedings in the court or, as the case may be, in
respect of a document produced or given in evidence in a
proceeding in that court, the Designated Court at Chandigarh
cannot take cognizance of the challan filed by the C.B.I.
The Designated Court held that in view of the directions
given by this Court filing of a complaint by the concerned
Designated Court was not necessary; and therefore, it
dismissed the said application by an order dated 11.9.97.
The appellant thereafter moved Crl. Misc No. 21069 of 1997
to the High Court but it was dismissed as stated above.
Aggrieved by the said orders passed by the Designated
Court and the High Court the appellant filed special leave
petition in this Court to grant leave to him to file an
appeal against those order. That S.L.P. came up for hearing
before a Bench consisting of our learned Brothers Mukherjee
and Thomas, JJ. It was felt by that Bench that the view
expressed by it in the State of Punjab vs. Raj Singh and
another (1998 (1) SCALE 130) runs, to some extent, counter
to the direction given by a two-Judge Bench of this Court in
Punjab and Haryana High Court Bar Association vs. State of
Punjab and others (1996 (4) SCC 742) and, therefore, it
passed the following order:-
" As the views expressed by us
in State of Punjab vs. Raj Singh
and another (1998 (1) SCALE 130
runs, to some extent, counter to
the direction given by a two Judge
Bench in Punjab and Haryana High
Court Bar Association vs. State of
Punjab and other (1996 (4) SCC
742), pursuant to which the
impugned order has been made we
deem it fit to refer this petition
to a larger Bench. Let this
petition be, therefore, placed
before Hon. the Chief Justice of
India for necessary orders."
Consequently, the S.L.P. was placed before us and after
hearing learned counsel for the petitioner we granted leave
as stated above.
The learned counsel for the appellant submitted that in
view of the bar contained in Section 195(1)(b)(i) no court
can take cognizance of any offence punishable under Sections
193-196, 199-200, 205-211 and 228 when such offence is
alleged to have been committed in, and in relation to, any
proceeding in any court except on the complaint in writing
of the Court or of some Court to which that court is
subordinate. He also drew our attention to Section 340 of
the Criminal Procedure Code which provides the procedure
required to be followed in cases mentioned in Section 195.
He submitted that what the law requires is that the court
has to first hold a preliminary inquiry, then record a
finding that an offence referred to in clause (b) of sub-
section (1) of Section 195 appears to have been committed in
or in relation to a proceeding in that court; make a
complaint thereof in writing and then sent it to a
Magistrate having jurisdiction to try it. He submitted that
in this case the Designated Court, Nabha or its successor
court has not held any inquiry or recorded a finding or
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filed a complaint as contemplated by Section 340 and,
therefore, the Designated Court at Chandigarh could not have
taken cognizance of those offences and issued process and
issued non-bailable warrant against the appellant.
The answer to the question whether the direction given
by this Court in the case of Punjab and Haryana High Court
Bar Association (supra) runs counter to the provisions
contained in Section 195 and 340 of the Code of Criminal
Procedure, as interpreted by this Court in Raj Singh’s case
(supra), depends upon how the said direction is read and
construed. If the said direction is read as a direction to
the CBI to file a chargesheet against the appellant and the
other three police officers for the offences under Sections
193, 194, 211 ad 218 IPC in the Designated Court at
Chandigarh and a further direction to the Designated Court
to dispose of the trial in respect of those offences then it
will have to be held that they are not consistent with the
provision of Sections 195 and 340 of the Code and run
counter to the view expressed by this Court in Raj Singh’s
case (supra). It appears that the direction given by this
Court was so understood by the CBI and therefore, it filed
an additional chargesheet in the Designated Court against
the appellant and other three police officers for the said
offences. The Designated Court also proceeded on the basis
that the direction was to try those accused for those
offences and as the direction was given by this Court it was
not necessary for it to follow the procedure contained in
Section 340 of the Code. As the matter had proceeded like
that before the Designated Court, and the contentions were
raised regarding legality of taking cognizance and issuing
of process for the offences under Sections 193, 194, 211 and
218 IPC the Bench before which the SLP was earlier listed
for hearing did not examine what really was the direction
given by this Court and rightly felt that the direction was
not consistent with the provisions of Sections 194 and 340
as interpreted by that Bench in Raj Singh’s case. (supra).
On going through the decision of this Court in the case
of Punjab and Haryana High Court Bar Association (supra) we
find that this Court had not directed the CBI to file a
challan against the appellant and other three police
officers for the offences under Sections 193, 194, 211 and
218 IPC in the Designated Court, Chandigarh. This Court had
also not directed that Designated Court to proceed with the
trial against those police officers for the said offences.
The direction given by this Court should have been read and
understood in the context of the facts of that case. an
offence was registered as FIR No. 10/93 in respect of murder
of Kulwant Singh and his wife and their two year old child.
After investigation the police had filed a chargesheet
against Harpreet Singh @ Lucky in the Designated Court,
Nabha. After the trial had commenced in that Court the
Punjab and Haryana High Court Bar Association had moved the
High Court with a petition to direct CBI to conduct further
investigation as it felt that the police had filed a false
case against Harpreet Singh. The High Court having dismissed
that writ petition an appeal was filed in this Court.
Feeling the necessity of further investigation by the CBI
this Court passed an order to that effect and after
submission of final report by the CBI and consideration
thereof this Court disposed of the appeal by giving certain
directions. As IIarpreet Singh was found to have been
involved in the offence of murder falsely he was directed to
be acquitted and the Government was directed to pay
compensation to him. The Government was also directed to pay
compensation to the parents of Kulwant Singh. This Court
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then ordered transfer of the trial from Designated Court at
Nabha to the Designated Court at Chandigarh. It may be
recalled that the trial which was pending in the Designated
Court at Nabha was in respect of murder of Kulwant singh and
his family members. Even though Harpreet Singh was ordered
to be acquitted this Court did not want that trial to be
treated as concluded and, therefore, it was transferred from
the Designated Court at Nabha to the Designated Court at
Chandigarh. The reason why this Court did not want the said
trial to be treated as over and transferred it from the
Designated Court at Nabha to the Designated Court at
Chandigarh is to be found in the last part of Paragraph 1 of
the judgment. Even though the CBI had reported that the
investigation made by it did not reveal any evidence to show
who had caused the murder of Kulwant singh and his family
members and that there was no evidence against the suspected
police officers to connect them with kidnapping and killing
of Kulwant Singh and his family members, this Court took the
view that whether the circumstances were sufficient to
prosecute them or not is a matter for the Court to consider.
This Court then observed that it would be open to the Punjab
and Haryana High Court Bar Association and the Prosecutor to
argue before the trial court that the material collected by
the CBI shows that the police officers are prima facie
responsible for the abduction and murder of Kulwant Singh
and his family and are liable for prosecution for offences
under the relevant provisions of Indian Penal Code. Since
this Court did not accept the suggestion of the CBI not to
proceed against the police officers for the abduction and
murder of Kulwant Singh and his family members it ordered
transfer of the trial from the Designated Court at nabha to
the Designated Court at Chandigarh and directed the CBI to
file the necessary challan before that Court. obviously, the
challan which was directed to be filed against the police
officers was in the trial which was transferred from the
Designated Court at Nabha to the Designated Court at
Chandigarh and that trial was for the offence of abduction
and murder of Kulwant Singh and his family members. The
direction was not to file a challan against those police
officers for the offences punishable under Sections 193,
194, 211 and 218 IPC. It was in respect of trial for the
offence of abduction and murder that the State Government
was directed to grant sanction under Section 197 of the
Criminal Procedure Code. The trial court was directed to
conclude that trial expeditiously. What we have stated above
becomes clear if the observations made in the last part of
Paragraph 1 of the judgment are read with the directions
given in Paragraph 4 of that judgment.
It was the CBI which misunderstood the direction and
instead of filing a chargesheet against the police officers
for the offence of abduction and murder of Kulwant Singh and
his family members filed it for the offences punishable
under Sections 193, 194, 211 and 218 IPC. Obviously, this
court was not unaware of the provisions contained in
Sections 195 and 340 Cr. PC and, therefore, could not have
directed the CBI to file a challan for the offences under
Sections 193, 194, 211 and 218 IPC in the Designated Court
at Chandigarh and directed that court to try those offences.
It was, therefore, not proper and legal for the
Designated Court at Chandigarh to take cognizance of the
offences under Sections 193, 194, 211 and 218 IPC and to
proceed with the trial of those offences against the
appellant and the other three police officers. However, the
process issued by the Designated Court against them need not
be set aside as inquiry contemplated by Section 340(I) of
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the Code has already been held by this Court and a finding
has been recorded that they appear to have committed these
offences in relations to the proceeding which was pending in
the Designated Court at Nabha. In view of sub-section (2) of
Section 340 it was competent for this Court to exercise the
power of the trial court under Section 340(1) and hold an
inquiry. As the appellant and the three police officers
prima facie appear to have committed the said offences it
was open to the Designated court at Chandigarh, now that the
case has been transferred to that court, to have issued
process under clause (d) to take security for their
appearance before the Magistrate having jurisdiction to try
those offences.
We, therefore, partly allow this appeal, quash the
taking o cognizance by the Designated Court of the offences
under Sections 193, 194, 211 and 218 IPC and direct that
court to make a complaint in writing to a magistrate having
jurisdiction in respect of those offences. The CBI is also
directed to file an additional challan against the appellant
and the other three police officers as directed by this
Court by its judgment in the case of Punjab and Haryana High
Court Bar Association (supra). The State government is also
directed to comply with the direction given in that case and
as clarified by us. The Designated Court at Chandigarh will
hen complete the trial as expeditiously as possible.
IN THE MATTER OF