Harkanwal Singh vs State of Punjab

Rekha Mittal, J.—The present petition u/s 482 of the Code of Criminal Procedure (in short ''the Cr.P.C.'') has been filed seeking quashing of complaint No. 230/1/11 dated 04.02.2010 titled "Surjit Singh Vs. Harkanwal Singh and another" for offence punishable under Sections 302, 506, 452 read with Section 34 of the Indian Penal Code (in short ''IPC'') (Annexure P6), summoning order dated 07.07.2012 (Annexure P7) and proceedings emanating therefrom.

The brief backdrop of this case is that Surjit Singh (respondent No. 2) lodged FIR No. 66 dated 05.07.2009 for offence punishable under Sections 304/34 IPC in regard to murder of his father on the allegations that on 05.07.2009 at about 8 AM, he started operating tubewell to water his field. In the meanwhile, Harkanwal Singh armed with Kirpan, Balbir Singh armed with Kahi (spade) came there and asked him not to operate the tubewell. He told them to talk to his father namely Jaswant Singh. The aforesaid persons along with the complainant came to their house and asked his father that they have share in the motor and his father replied that they have nothing to do with the motor and if they have share, they should initiate court proceedings. Harkanwal Singh and Balbir Singh caught his father from his neck, thrashed him and thereafter ran away along with their weapons. Jaswant Singh was brought to Dashmesh Hospital, Bhogpur for treatment where the doctor declared him dead. His father was a patient of heart problem for the last five years.

Respondent No. 2 (complainant) filed a petition CRM-M-28639-2009 and the petition was dismissed as withdrawn with liberty to respondent No. 2 to file a protest petition before the court where the cancellation report is submitted. Thereafter, respondent No. 2 filed the criminal complaint (Annexure P6) for offence punishable under Sections 302, 506, 452 read with Section 34 IPC in the court of Illaqa Magistrate, Jalandhar and in the said case, in view of evidence recorded during preliminary inquiry, the petitioners were ordered to be summoned to face trial for the aforesaid offences vide order dated 07.07.2012.

Counsel for the petitioners contends that after thorough investigation in the matter, the investigating agency submitted a cancellation report on 05.09.2012 in the court of Judicial Magistrate Ist Class, Jalandhar. Surjit singh complainant did not agree with the cancellation report and the case was returned to the investigating agency for further investigation. It is argued with vehemence that the respondent during investigation in the FIR lodged at his behest filed the instant criminal complaint, when otherwise his protest against the cancellation report was accepted by the court and the matter was referred for further investigation. It is further argued that the Judicial Magistrate despite being apprised that FIR No. 66 dated 05.07.2009 stood registered in Police Station Bhogpur with regard to the same occurrence in which the police has prepared a cancellation report as stated before the High Court, did not bother to seek any report regarding cancellation and its status. It is further argued that during preliminary inquiry, respondent No. 2 examined Dr. Onkar Singh CW4, who declared Jaswant singh as dead. Dr. Namita CW5 was examined to prove postmortem report in view of examination of dead body of Jaswant Singh and the witness has categorically stated that there was no external injury on the body, no poison was detected in the Exhibits No. 1 to 5 sent for chemical analysis and as per pathological report, both the coronary arteries show atherosclerotic changes and the Medical Board opined that cause of death in the case was coronary insufficiency leading to cardiogenic shock, sufficient to cause death in the ordinary course of nature. The Judicial Magistrate, in the face of aforesaid medical evidence, still proceeded to summon the petitioners for committing the offence of murder. It is argued with vehemence that criminal proceedings initiated by respondent No. 2 are nothing but an abuse and misuse of process of court and liable to be quashed.

Respondent No. 2, at one point of time, was being represented by an Advocate but since February 06, 2013 there is no representation on his behalf nor any reply has been filed on his behalf to controvert the allegations of the petition.

Counsel for respondent No. 1 has conceded to the factum of filing a cancellation report in regard to FIR No. 66 dated 05.07.2009 in the Court on 05.09.2012 and the said report was returned by the court with a direction to conduct further investigation. It is argued that during further investigation, no new fact came to light and again the cancellation report was prepared by the then SHO on 14.03.2013 which has been forwarded for presentation before the Illaqa Magistrate on 12.02.2014.

I have heard counsel for the parties and perused the case file.

The complainant (respondent No. 2) filed a petition before this Court CRM-M-28639-2009 and during course of hearing, it was transpired from the statement made by counsel representing State of Punjab that a cancellation report has been prepared and is likely to be submitted before the concerned court shortly. Counsel for respondent No. 2 (petitioner therein) sought permission to withdraw the petition to file a protest petition before the court concerned as and when cancellation report is submitted. Respondent No. 2 without waiting for submission of the cancellation report filed the instant complaint in February 2010. The Judicial Magistrate despite knowledge that FIR No. 66 dated 05.07.2009 stood registered in Police Station Bhagpur, District Jalandhar with regard to the occurrence in question and the police is intending to file a cancellation report in the said case, without bothering to know the status of the investigation or cancellation report proceeded to examine the witnesses during preliminary inquiry and eventually passed the summoning order dated 07.07.2012. The procedure followed by the Judicial Magistrate is in complete derogation to the provisions of Section 210 Cr.P.C. which provides for procedure to be followed when there is a complaint case and police investigation in respect of same offence. A relevant extract from Section 210 Cr.P.C. reads as follows:-

210(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

The proceedings conducted by the Judicial Magistrate in utter disregard of the procedure laid down in Section 210 Cr.P.C. are bad in the eyes of law.

A plain reading of the allegations set up in the FIR would make it evident that there was a dispute between the complainant and the accused in respect of a tubewell installed in the fields. The complainant raised allegations that the accused caught hold of his father from his neck and gave him jerks, fist blows and pushed him down on the floor. As per post-mortem examination of the deceased, no injury was found on the body of the victim. On receipt of report of chemical analysis in regard to contents of viscera as well as Histopathological examination report, the Medical Board consisting of Dr. Devinder Singh, Dr. Namita Ghai and K.S. Bawa gave opinion regarding cause of death in the following words:-

Coronary insufficiency heading to cardiogenic shock is sufficient to cause death in the ordinary course of nature.

No doubt, the disputed questions of fact are not amenable to adjudication in proceedings u/s 482 Cr.P.C., nor the court can embark upon an inquiry to examine truth or falsity of allegations levelled by the complainant, however, at the same time, the court cannot be a mute spectator and allow the proceedings to continue if the same are the result of malafide, lodged with an intent to serve an ulterior motive or wreak vengeance.

Keeping in view the facts and circumstances of the present case, I am of the considered opinion that the criminal proceedings initiated by respondent No. 2 are nothing but abuse and misuse of process of law. This part, the Judicial Magistrate was not competent to proceed with the matter during pendency of investigation. Taken from any angle, I am of the considered opinion that the criminal proceedings initiated by Surjit Singh respondent No. 2 in the circumstances of the present case cannot be allowed to continue.

In view of what has been discussed hereinabove, the petition is allowed, criminal complaint No. 230/1/11 dated 04.02.2010 titled "Surjit Singh Vs. Harkanwal Singh and another" and proceedings emanating therefrom are ordered to be quashed.