Jasvir Singh Shahi vs U.T. Chandigarh

Prayer in this petition is for quashing of FIR No.182 dated 28.06.2004 under Sections 364, 365, 323, 383, 506, 120-B IPC, registered at Police Station

Sector-11, Chandigarh and the subsequent proceedings arising therefrom as well as the order dated 26.02.2018 (Annexure P-6), vide which the

Additional Sessions Judge, Chandigarh has directed the police to submit the supplementary challan against the petitioner. On 04.05.2018, following

order was passed: -

“Learned counsel for the petitioner submits that the FIR was registered at the instance of Dr. Deepak Singla with the allegation that six other co-

accused, namely, Tarsem Singh, Gurdev Singh, Sukhdev Singh, Lakhwinder Singh, Arwinder Singh and Harjinder Singh, have kidnapped one Lekh

Raj. It has come in investigation that later on, Lekh Raj stated before the police that to pressurize the wife of the petitioner to withdraw some pending

litigation in USA, he was kidnapped at the instance of petitioner.

Learned counsel for the petitioner further submits that at one point of time, the petitioner was declared a proclaimed offender as he was residing in

USA and thereafter, he had filed CRM-M-36145 of 2017 in which, a direction was issued to the petitioner on 28.09.2017 to appear before the trial

Court and the trial Court was directed to release the petitioner on interim bail on furnishing bail/surety bonds and on payment of cost of Rs.2 lacs to be

deposited in the Government Treasury.

Learned counsel for the petitioner also submits that in pursuance thereof, the petitioner has already appeared before the trial Court and has been

released on bail and is facing the trial and he has also deposited the cost of Rs.2 lacs in the Government Treasury.

Learned counsel for the petitioner has further submitted that co-accused of the petitioner, namely, Tarsem Singh and others, faced the full length trial

and vide judgment dated 31.01.2018 (Annexure P-2) passed by the Additional Sessions Judge, Chandigarh, they were acquitted of the charges as the

prosecution has failed to prove the case. Counsel for the petitioner has drawn attention Para No.6 of this judgment, which reads as under:-

“In order to prove its case the prosecution examines as many as eight witnesses including the complainant, Deepak Kumar, victim Lekh Raj and

his wife Inderjit Kaur, who all failed to support the case of the prosecution as far as the identity of the accused persons as the assailants, who had

abducted the Lekh Raj. After that in view of the hostile testimony of material witnesses learned PP closed the evidence of prosecution after giving up

all the remaining witnesses of the prosecution.â€​

Counsel for the petitioner has also submitted that victim-Lekh Raj has since died and even in the earlier trial, he was declared a hostile witness along

with other material prosecution witnesses, therefore, no purpose would be served for the petitioner to face the trial as no new evidence is to be

brought on record and therefore, the impugned order dated 26.02.2018, directing the police to submit a supplementary challan will be a futile exercise.

He further relied upon the Division Bench Judgment of Sudo Mandal @ Diwarak

Mandal Vs. State of Punjab, 2011(2) R.C.R. (Crl.) 453, wherein this Court has held that in order to secure the ends of justice where the co-accused

have already been acquitted by the Court, the proceeding against the absconding accused can be quashed as no useful purpose will be served, even if

such accused is directed to face the trial.

Notice of motion for 06.08.2018.

Till the next date of hearing, operation of the impugned order dated 26.02.2018 (Annexure P-6) as well as further proceedings before the trial Court

shall remain stayed.†Learned counsel for the petitioner submits that a perusal of the FIR otherwise shows that there is no allegation against the

petitioner that he was either present at the spot or had participated in any manner in the act of abduction of Lekh Raj. It is further submitted that as

per statement of complainant Deepak Singla, his neighbour Lekh Raj was kidnapped by four unknown persons, identity of whom was not proved.

Counsel for the petitioner further submits that the petitioner is involved in the present case on account of a matrimonial litigation with his wife Kiran

Kaur, sister-in-law of victim, as he is husband of sister of Kiran Kaur.

Learned counsel for the petitioner has further submitted that the petitioner is a permanent resident of USA and the case was registered at his back

and therefore, he was wrongly declared a proclaimed offender during the course of trial, as he was not served with the proclamation as per the

procedure prescribed under Section 105-B Cr.P.C., therefore, the order declaring him a proclaimed offender was set aside vide order dated

28.09.2017, after the petitioner deposited the costs of Rs.2.00 lacs in the Govt. Treasury.

Learned counsel for the petitioner thus prayed for quashing of the impugned FIR and the subsequent proceedings in pursuance thereof, relying upon a

Division Bench judgment of this Court in Sudo Mandal @ Diwarak Mandal Vs. State of Punjab, 2011 (2) RCR (Crl.) 453.

The operative part of the judgment of this Court in Sudo Mandal @ Diwarak Mandal’s case (supra) is reproduced as under: -

“23. We are conscious of the fact situation that those three accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal had absconded

and were declared as proclaimed offenders. They had not faced the trial, but when we find that no case could be made out as against them also with

the very same rickety materials, those accused also will have to be relieved of the impending pain effacing the prosecution for murder. Section 482 of

the Code of Criminal Procedure reads as follows :-

â€Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make

such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure

the ends of justice.â€​

The above provisions recognize the inherent powers of the Court to do real and substantial justice, preventing the abuse of the process of the

Court. The statutory recognition of the inherent jurisdiction of the criminal Court indicates that there is a power for the criminal Courts to make such

an order as may be necessary to meet the ends of justice. We are conscious of the fact that the powers under Section 482 of the Code of Criminal

Procedure are to be exercised very sparingly and in exceptional cases where abuse of the process of the Court would result in serious miscarriage of

justice. The inherent powers of the Court should not be exercised to stifle legitimate prosecution. But at any rate the settled position is that this Court

has the jurisdiction to quash the entire criminal proceedings to prevent the abuse of the process of the Court in order to secure the ends of justice. In

our considered view the same inherent powers can be exercised when this Court finds that the innocent accused, who had absconded would simply

face the empty formality of trial with the very same unbelievable and untrustworthy evidence, which would ultimately lead to their acquittal. Bringing

the absconding accused to face the trial in this case in the above facts and circumstances would amount to abuse of the process of the Court. To

secure the ends of justice, we hereby quash the entire proceedings as against the absconding accused namely Radha Mandal, Rajiya Mandal and

Sambodh Mandalpending before Judicial Magistrate 1st Class Bathinda/Sessions Judge, Bathinda, as no useful purpose will be served even if they are

procured and ordered to face the trial in this case.

Learned counsel for the petitioner has further argued that the order dated 26.02.2018 passed by the Additional Sessions Judge remanding the case

back and issuing a direction to file the supplementary challan under Section 364 IPC is otherwise illegal as it is provided in Section 193 Cr.P.C. that

the Sessions Court will take cognizance only after commitment of a case to the Court of Sessions and as such, the impugned order issuing a direction

to this effect is illegal.

In reply, learned counsel for U.T. Chandigarh has not disputed the factual position. It is also not disputed that the petitioner has paid the costs of

Rs.2.00 lacs, which is deposited in the Govt. Treasury and the order dated 05.02.2005, declaring the petitioner a proclaimed offender, was set aside

vide order dated 14.12.2017 passed in CRM-M-36145-2017. Learned counsel for U.T. Chandigarh has however submitted that the petitioner can raise

all the pleas during the course of trial.

After hearing learned counsel for the parties, I find merit in the present petition.

In the judgment dated 31.01.2008 passed by the Additional Sessions Judge, Chandigarh, vide which 07 co-accused of the petitioner were acquitted, a

categoric finding has been recorded that complainant Deepak Singla, victim Lekh Raj and his wife Inderjeet Kaur have failed to support the

prosecution case and therefore, identity of the accused persons as assailants, who abducted Lekh Raj, is not proved. Even in case, the petitioner is

directed to face the trial, no fresh evidence can come on record. The position would have been different in case the prosecution witnesses have

supported the case or co-accused were convicted.

Learned counsel for U.T. Chandigarh could not dispute the fact that Lekh Raj is brother-in-law of the estranged wife of the petitioner and therefore,

there was every possibility of involving the petitioner in a false case, he being an NRI.

In view of Division Bench judgment of this Court in Sudo Mandal @ Diwarak Mandal’s case (supra), I find that no purpose will be served if the

petitioner is directed to face the trial, as a categoric finding has already been recorded by the Court that the complainant and the victim were declared

hostile in the earlier trial and have failed to support the prosecution version and therefore, even in the event of directing the petitioner to face the fresh

trial, the prosecution cannot lead any evidence, contrary to the evidence, which has already come on record.

In view of the above, present petition is allowed. FIR No.182 dated 28.06.2004 under Sections 364, 365, 323, 383, 506, 120-B IPC, registered at Police

Station Sector-11, Chandigarh and the subsequent proceedings arising therefrom as well as the order dated 26.02.2018 (Annexure P-6) passed by the

Additional Sessions Judge, Chandigarh, are quashed.