Javed and others vs State of Haryana and another

Ranjit Singh

Three petitioners have filed this petition for quashing of FIR registered against them under Sections 395, 397 IPC and under the Arms Act registered at Police Station Palwal, District Palwal and so also the subsequent proceedings on the ground that their co-accused Abbas has been acquitted. For support, reliance is placed on a Division Bench judgement of this Court in the case of Sudo Mandal Vs. State of Punjab, dated 17.3.2011, Annexure P-3.

The FIR in this case was registered on a statement made by Hasam Khan. It is alleged that the complainant was employed as a Driver on dumpher No.HR-38N-0760 of one Ashraf son of Suddin. On 16.10.2010, the complainant and Issa son of Suddin were going to U.P by loading a ''Rori'' machine. When they reached near Durgapur, one Santro car stopped in front of the dumpher. The complainant stopped the vehicle, when four persons alighted from the car, who had their faces covered. They were carrying country made pistol. The complainant and Issa were made to alight from the vehicle and put behind the vehicle. They four boarded the vehicle and started driving the same. After some distance, the complainant was put into the Santro car and their vehicle was snatched. They kept on roaming at various places and later left the complainant in the forest by tying their hands and foot. The complainant subsequently reached their house after freeing them by giving a phone call, when their relatives reached there. On this basis, they filed a complaint, after knowing the identity of the persons.

Abbas was arrested during the investigation on 3.3.2011 and challan was filed against him alongwith the petitioners. The petitioners did not appear and could not be arrested and so were declared proclaimed offenders. The trial against Abbas continued and the Trial Court acquitted Abbas as the complainant has made a statement that they were looted by some unknown persons. The judgement acquitting Abbas is annexed with the petition. Claiming that they were not initially aware of their false implication and they have learnt it now, when the police had raided their houses. They have filed the present petition for quashing of FIR, Annexure P-1. The plea simply is that co-accused Abbas, who is similarly situated and is at par with the petitioners has been acquitted and, therefore, the exercise of putting the petitioners to trial would be nothing but a futile exercise and wastage of precious time of the Trial Court.

Should a person, who has no respect for law, be permitted to wait on the side line and look for an outcome of a trial and then seek parity having shown disrespect to the Court and law by not submitting himself before the cause of justice?

The petitioners were declared proclaimed offender but never chose to appear before the Court, waited for the outcome and now are seeking their acquittal on the basis of parity by moving this petition u/s 482 Cr.P.C. The petitioners are seeking premium over their misconduct in not showing any respect to law. They have remained absent, evaded the trial and their prosecution and now they seek advantage of this illegal act on their part. What would have been the plea of the petitioner, if the outcome of the trial against Abbas would have been converse? Would the petitioners then had come forward to seek their conviction and sentence by filing petition u/s 482 Cr.P.C. on the ground their co-accused similarly situated has been convicted? The prosecution could also not have been permitted to seek conviction of the petitioner on the ground that their co-accused is convicted and so they should be convicted on the ground that evidence would be same. They could neither have thought of making this approach nor it would have been legally justified for this Court to convict them and to sentence them on the basis that their coaccused have been convicted. If the prosecution had made any approach in such eventuality to seek conviction and sentence for the petitioners, then they would have cried hoarse to say that they ought to be put to trial and proved guilty before the prosecution could seek their conviction or pray for sentence being imposed on them. That alone is the legal course available and that would also be the legal course now available for the petitioners to submit themselves before the Trial Court and face the consequence of trial. The petitioners have to face the rigors of a trial where the prosecution ought to be given an opportunity to produce the evidence against them.

Abbas may not have been identified by the accused to be a participant in this serious dacoity. It may be that the witnesses are in a position to recognize or identify the petitioners. Abbas has been acquitted on the basis of evidence led against him. The petitioners can not permitted to seek parity with him. Once they are proclaimed offenders, not only the petitioners have to face trial in the present case but they can also made to face prosecution for an offence on the ground of being proclaimed offenders, which is now an offence u/s 174-A IPC. Atleast, the petitioners have to face trial as apparently offence u/s 174A is made out against them. They have not made any prayer or have not made any approach seeking quashing of the order, declaring them proclaimed offender so far.

The Division Bench judgement relied upon by the petitioners, in my view, would not help the cause of the petitioners. The Division Bench was dealing with a criminal appeal, where five accused were being proceeded for an offence u/s 302 IPC. One was convicted and sentenced to undergo life imprisonment. After the conviction of the appellants before this Court, one person, earlier declared as a proclaimed offender, was apprehended. He also faced trial and was convicted for an offence u/s 302 IPC and awarded sentence of life imprisonment. They both have preferred appeals before this Court. The Division Bench considered the evidence in detail. The Division Bench doubted the ocular version and held that the prosecution had miserably failed to establish the case beyond reasonable doubt and set-aside the conviction of the appellants before the Court. While disposing this appeal, in this manner, the Court has made some observation about three absconding accused, who had successfully evaded the Court and the police. Finding the case to be such where investigating agency had implanted eye witnesses and both these eye witnesses were not found trust-worthy, the Court persuaded itself to conclude that the accused in this case were not the perpetrators of the crime of murder as alleged by the prosecution. The Court went on to observe that the same set of material would be produced before the Sessions Court on production of remaining three accused, affording them a judicial succour, who were found to have taken to heals and had hidden themselves apprehending the wrath of criminal proceedings for a crime like murder. The Appellate Court used its inherent powers u/s 482 Cr.P.C. to observe that bringing these absconding accused to face the trial in the facts and circumstances of that case (emphasis mine) would amount to abuse the process of Court.

It is, thus, clear that the Division Bench had decided this case in the facts and circumstances of that case and has not laid down any law of a binding nature, which is required to be followed in each and every case. The judgement relied upon does not indicate in any manner if there was any prayer made by these absconding accused to seek quashing of the proceedings, which was so ordered by the Court. What apparently had weighed with the Division Bench was that the eye witnesses were not found to be witnesses to the occurrence and were found to have been made to stand to give eye witness account. That is not the case in hand. Here the eye witnesses have given their version supporting the incident and this case can not be termed to be a case of any false implication. The ratio of law, thus, is not attracted to the facts of the present case in any manner.

The petition is accordingly dismissed.