Gurdeep Singh vs State of Punjab

K.K. Srivastava, J.

This is a petition filed under Section 482 Cr.P.C. seeking the quashing of order dated 5.4.1997 (Annexure P2), passed by Judicial Magistrate 1st Class, Patiala, declining the prayer of the petitioner to commit the case to the Court of Sessions.

In an occurrence taking place on 26.5.1995 near village Rewas Brahma, the complainant Gurdip Singh and his father Mukand Singh were beaten by accused Nos. 2 to 5 (namely Amandip Singh, Maninderjit Singh, Ashu Deep Sidhu alias Chhotu and Inderjit Singh) with deadly weapons like swords and hockeys. The petitioner suffered injuries on his person, including the left leg, which had to be amputated. It was alleged that the shots were also fired at the petitioner and his father Mukand Singh, but they escaped being hit with the shots. On the statement of the petitioner, FIR No. 145 dated 26.6.1995 under sections 307/324/323/506/148/149 IPC and Section 25 Arms Act was registered against the accused persons. Copy of the FIR is Annexure P1. The police investigated the case and submitted a challan under Sections 325/324/506 IPC against the accused, i.e. respondents No. 2 to 5. The petitioner/complainant moved an application before the learned Magistrate praying that since the offence punishable under Section 307 IPC was prima facie, made out, the case be committed to the Court of Sessions. The learned Magistrate, however, dismissed the application of the petitioner vide order dated 5.4.1997 (copy Annexure P2).

Feeling aggrieved against the order of the learned Magistrate, the petitioner/complainant has filed this petition, seeking quashing of the impugned order.

Notice of motion was issued to respondents, who put in appearance. Respondent No. 1 filed reply by way of the affidavit of Shri Narjinder Singh, Deputy Superintendent of Police, (Rural) Patiala, while respondents No. 2 to 5 filed separate reply. The respondents have defended the impugned order passed by the learned Magistrate.

Shri Atul Lakhanpal, learned counsel for the petitioner has urged that the approach of the learned Magistrate in dealing with the application of the petitioner/complainant for commitment of the case is contrary to the well established principles of law and is based on conjectures and surmises. He has contended that in this case the police diluted the offences because respondents No. 2 and 3 happened to be the sons of Shri Gursewak Singh, Deputy Superintendent of Police, posted in the State of Punjab. The FIR, it was argued by learned counsel for the petitioner, was registered under Section 307 IPC as well and there was material on record to show that accused/respondents No. 2 to 5 had, prima facie, committed the offence under Section 307 IPC. He further argued that petitioner suffered injuries on his person, including the left leg, which had to be amputated. According to him, the fire arms were also used but the petitioner had a providential escape as the shots missed the target and went astray.

A perusal of the impugned order (copy Annexure P2) will go to show that the learned Magistrate noted the argument of the learned Assistant Public Prosecutor that a charge under Section 325 IPC be framed and in case any evidence for the offence punishable under Section 307 IPC is brought on the record, the case can then be committed to the Court of Sessions. Learned counsel for the complainant had contended before the learned Magistrate that the statement of the complainant, on the basis of which the FIR had been recorded, and the statement of the witnesses namely Mukand Singh and Babu Singh, recorded under Section 161 Cr.P.C., prima facie, disclosed the commission of offence under Section 307 IPC. It was further submitted by him that accused Maninderjit Singh alias Raju had a revolver and he had fired a shot with the same, but it did not hit the complainant. The learned counsel for the complainant had also pointed out to the learned Magistrate that the other accused who were unarmed, had raised a lalkara that they were sent by Uncle Gursewak Singh to kill Gurdeep Singh. It was urged on behalf of the defence that the witnesses had not stated during their interrogation under Section 161 Cr.P.C. that the injuries were caused with intention to cause death and it was pointed out that the injuries were not on the vital part of the body and as such, the death of the complainant was not intended to be caused. The learned counsel for the accused had cited before the learned Magistrate, the judgment of this Court in case Surjan Singh v. Suraj Pal, 1993(3) RCR 410. After considering the rival contentions of the parties, the learned Magistrate held :

"............... I am of the considered view that this application cannot be accepted. The complainant in his statement has nowhere stated that injuries were caused with an intention to cause his death. He has merely stated that two unidentified persons, who were emptyhanded were raising lalkara that they have been sent by Uncle Gursewak Singh to kill him. Merely because he has attributed these lalkaras to two of the accused, it cannot be said that injuries were caused with an intention to cause his death particularly when no injury is on the vital part of the body of the complainant. Mere use of fire arm is also not sufficient to bring the case within the ambit of Section 307 IPC. As per the statement of injured and the eye witnesses, a shot was fired at Gurdip Singh, who saved himself by falling on the ground but thereafter no shot was fired at him. Had the accused intended to kill him, they could have fired another shot at him. In this view, I find support from the above referred judgment of Hon''ble Punjab and Haryana High Court in Surjan Singh v. Suraj Pal, in which it has been held as under :

"The injuries suffered by the petitioner and Prem were all on nonvital parts of their bodies. It is settled law that mere fact that a gun had been used by the accused for causing injuries will not necessarily prove the case under section 307 IPC and there can be no presumption that the accused intended to cause death of Surjan Singh merely because he used firearm to cause him hurt."

To the same effect is the judgment of State of Punjab v. Parveen Kumar, 1991(3) RCR 422. Therefore, at this stage, there is nothing on the file to make out a case under Section 307 IPC. The amputation of any part of the body can also be adequately punished under Sections 325 and 326 IPC as the case may be. Accordingly this application is hereby rejected. However, it is made clear that in case any evidence recorded during the trial shows that the case is exclusively triable by the court of sessions, the case can be committed to the court of Sessions at that time. ............"

Sd/

Judicial Magistrate

1st Class, Patiala".

Announced

5.4.1997

From the perusal of the order aforesaid, it is clear that the learned Magistrate dealt with the submission of the offence under Section 307 IPC, being prima facie made out against the accused/persons, as if he was dealing with the case after the trial was over in which evidence had been recorded. The learned Magistrate totally ignored the wellsettled principle of law that at the pretrial stage the court is not called upon to weigh the material in a sensitive balance and search for the proof of the offence beyond shadow of reasonable doubt. In other words, the court is not to look to the material on record to consider if factually the same would be sufficient to warrant a conviction. The learned Magistrate accepted the arguments advanced on behalf of the respondent/accused that there was no intention on the part of the accused to cause death of the complainant. The learned Magistrate did not take note of the fact that in this incident, as per the prosecution case, swords were used besides the firearm. The learned Magistrate ought to have taken serious note of these averments that the accused had been carrying dangerous weapons like swords and firearms, which were used in this occurrence and that, prima facie, showed the intention of the accused to cause death of the complainant by using deadly weapons.

This apart, the material collected during investigation showed that some of the accused were also exhorting their coaccused to kill Gurdeep Singh as they had been sent by Uncle Gurdewak Singh to kill the complainant. One of the accused, namely Maninderjit Singh is alleged to have fired shot on Gurdeep Singh, but he escaped the shot. The offence under Section 307 IPC is made out even when factually the victim does not suffer any injury, though the shot is aimed at him and he successfully wards it off. The learned Magistrate, thus, committed a grave error in law in recording a finding at this stage, based on the material which should have not been weighed by him. Section 228(1)(a) specifically provides a situation where the Court of Sessions upon consideration and hearing, as is envisaged under Section 226 Cr.P.C. is of the opinion that there is ground for presuming that the accused has committed an offence, which

"(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;"

In my considered view, the learned Magistrate ought to have upheld the contention of the complainant and left this matter to be considered by the Court of Sessions at the stage of S. 228(1)(a) Cr.P.C. He should not have himself attempted to evaluate the material, at this stage, to consider if the offence under Section 307 IPC was made out from the material on record, which could warrant ultimate conviction of the accused thereunder. Resultantly, this petition has considerable merit and is allowed. The impugned order (Annexure P2) is quashed. The learned Magistrate is directed to proceed to conduct the commitment proceedings of the case, by treating the offence under Section 307 IPC, prima facie, being shown to have been made, at this stage. It will be for the Court of Sessions to consider the material on record and to find out if any offence is made out against the accused, which was exclusively triable by the said Court. In case the Court of Sessions is of opinion that no such offence was committed, which is exclusively triable by him, he would then deal with the matter as provided for under Section 228(1)(a) of the Code of Criminal Procedure.