Joginder Singh vs State of Punjab

K.S. Kumaran, J.

Petitioner Joginder Singh has filed this application under Section 482 of the Code of Criminal Procedure for quashing the proceedings pending before the learned Additional Sessions Judge, Ferozepur, arising from a complaint under Section 302 of the Indian Penal Code.

The petitioner, a constable, working under the Senior Superintendent of Police, Ferozepur, was part of the police party which was on election duty. The elections to the village Panchayat of Chak Saide Ke, were being held on 18.1.1993. According to the petitioner at the time of polling there was some altercation between opposing factions in the election and the police party present there was trying to pacify the crowd and he (the petitioner) who was part of the police party and was being threatened by the public, in order to preserve peace and save loss of life fired in the air in the course of his duty, but the bullet accidentally hit one Harjinder Singh who was standing at a higher place, and he died.

The petitioner claims that First Information Report No. 5 dated 18.1.1993 registered under Section 304 of the Indian Penal Code was investigated and he was found to be innocent, and therefore, a report of cancellation of the First Information Report was sent, and the FIR was accordingly cancelled. The petitioner further claims that on a complaint dated 4.6.1993 by Harbans Singh (secondrespondent herein) he (petitioner) was summoned by Additional Chief Judicial Magistrate, Ferozepur, but no sanction under Section 197 of the Code of Criminal Procedure was obtained by the learned Additional Chief Judicial Magistrate, Ferozepur, before issuing the summoning order. According to the petitioner, the complainant has also deposed as PW1 and admitted that the petitioner was on duty in the school. The petitioner claims that the complaint filed by secondrespondent after a lapse of six months is motivated. According to the petitioner he made an application on 3.5.1996 before the learned Additional Sessions Judge, for dropping the proceedings against him for want of sanction under Section 197 of the Code of Criminal Procedure but the learned Additional Sessions Judge, has not decided the application so far, but is continuing the proceedings against the petitioner. The petitioner has prayed for quashing of the proceedings before the Additional Sessions Judge.

The firstrespondent State of Punjab has filed a reply supporting the petitioner.

The firstrespondent has alleged in its reply that on 18.1.1993 the petitioner was on duty in village Chak Saide Ke, that there was law and order problem, that the mob tried to snatch the ballot boxes and the Presiding Officer ordered the petitioner to fire in order to save the ballot boxes being taken away by the mob and, therefore, the petitioner fired in the air which hit Harjinder Singh, brother of the secondrespondent, who was standing at a raised platform. The State has also mentioned about the investigation and the report to cancel the First Information Report, as also approval of the same by the concerned Magistrate.

But the secondrespondent/complainant filed a reply alleging that this petition filed on 13.8.1996, came up for hearing before the Court on 20.8.1996 by which time the application filed by the petitioner on 3.5.1996 to drop the proceedings had been decided on 16.8.1996 (vide order annexure R2/1) and as such the petitioner has suppressed the material facts and therefore, the petition is liable to be dismissed. The secondrespondent has also alleged that the petitioner committed murder of Harjinder Singh, while acting in the discharge of official duties, which is not at all connected with the discharge of his official duty and therefore no sanction under Section 197 was necessary. The secondrespondent has denied that there was any altercation between any of the factions at the time of the elections. According to the 2nd respondent the petitioner, without there being any dispute, hurled abuses against the deceased and fired straight at the head of Harjinder Singh. The secondrespondent has also alleged that the Investigating officers being police officials have helped the petitioner, and that was why he has been compelled to file the complaint.

I have head the counsel for both the sides and perused the records.

The copy of the complaint given by the secondrespondent is annexure P1 wherein he has stated that on 18.1.1993 himself and Harjinder Singh (deceased) had gone to the village School for casting their votes in the Panchayat Election, that at about 9/10 A.M. when he and his brotherHarjinder Singh were pacifying the persons so that there may not be any fight and difficulty in the casting of votes, the petitioner challenged Harjinder Singh, abused him and fired at him, and that bullet hit Harjinder Singh on his head who died on the spot. It has also been alleged that the petitioner was requested not to fire but he, without listening to any one, murdered Harjinder Singh by firing at him. The learned counsel for the secondrespondentcomplainant contends that though the petitioner was on duty the offence committed by him had no connection with the discharge of his official duties. He contends that there was no dispute whatsoever but yet the petitioner abused Harjinder Singh and fired at him. Therefore, the learned counsel for the secondrespondent contends that since the murder committed by the petitioner had no connection with the discharge of his duties no sanction is necessary under Section 197 of the Code of Criminal Procedure and, therefore, the proceedings pending before the Additional Sessions Judge, Ferozepur, cannot be quashed. The learned counsel for secondrespondent also relies upon the decision of this Court in ASI Hardev Singh v. State of Punjab, 1995(3) R.C.R. 53 and also the decision of the Hon''ble Supreme Court in State of Maharashtra v. Dr. Budhikota Subharao, 1993(2) R.C.R. 482 in support of his contention. These decisions do support the contention of the learned counsel for the second respondent that the act committed by the accused should be connected with the discharge of the duty. As per allegations in the complaint, while Harjinder Singh was pacifying the persons, the petitioner fired at Harjinder Singh and a bullet hit at the head of Harjinder Singh, whereas in the petition, it has been alleged by the petitioner that there was some altercation between opposing factions in the election, that the police party was trying to pacify the crowd, that the petitioner, who was part of the police party was also being threatened by the public, that in order to preserve peace and save loss of life and the petitioner fired in the air in the course of his duty but the bullet hit Harjinder Singh, who was standing at a higher place and died. But the Deputy Superintendent of Police, who has filed the reply on behalf of the State of Punjab has stated in the reply that the mob tried to snatch ballot boxes, that the Presiding Officer ordered the petitioner to shoot to save the ballot boxes from being taken away by the mob and, therefore, the petitioner fired in the air which hit Harjinder Singh, who was standing at a raised platform. While the petitioner has alleged that there was an altercation between rival factions and in order to preserve peace and save loss of life, he fired in the air, the State has gone to the extent of saying that the mob even tried to snatch the ballot boxes and in order to prevent it the Presiding Officer ordered to fire and, therefore, the petitioner fired in the air. While the petitioner has alleged in the petition that he was being threatened by the public the State does not say so in its reply. Therefore, I find differences in the stands taken by the petitioner and the State with regard to the manner and circumstances in/under which the petitioner happened to open fire. Further this matter has to be decided after recording and appreciating the evidence. In view of the differing stands taken by the petitioner on the one hand and the State on the other hand, it cannot now be decided without taking evidence that the petitioner had fired at the mob in the discharge of his official duties and quash the proceedings pending before the Additional Sessions Judge. Therefore, in these circumstances, I find that the proceedings cannot be quashed.

Further, while considering the request for quashing the criminal proceedings, this Court will have to be guided by the allegations found in the complaint without critically analysing whether these allegations are correct or not. The defence raised by the petitioner that there was altercation and in order to maintain peace and save loss of life, he fired, and the bullet accidentally hit Harjinder Singh who was standing at a higher level, is yet to be examined. Evidence with regard to the same has to come. Before evidence regarding the same is taken and considered, a detailed scrutiny of the petitioner''s case as to whether the allegations are correct or not is not called for, at this stage. This is especially so when the State has taken a slightly different stand about which I have pointed out already. This view of mine is also supported by the decision in ASI Hardev Singh''s case cited supra. Therefore, in the peculiar circumstances of this case, the request of the petitioner for quashing the proceedings before the learned Sessions Judge cannot be accepted.

This apart, the petitioner has alleged in his petition that on 3.5.1996 he had filed an application before the learned Additional Sessions Judge, to drop the proceedings against him for want of sanction under Section 197 Cr.P.C. but the learned Additional Sessions Judge without deciding that application is continuing the proceedings against him. The present petition was filed before this Court on 13.8.1996, but, it came up for hearing on 20.8.1996 and this Court while ordering notice to the respondents stayed the passing of the final order by the trial Court. But as is seen from annexure R2/1 the petition filed by the petitioner to drop the proceedings was considered and dismissed by the learned Additional Sessions Judge, on 16.8.1996 itself. This fact was not brought to the notice of this Court. Learned counsel for secondrespondent contends that petitioner is also guilty of suppressing this material fact and is therefore not entitled to any relief. I agree with the learned counsel for the secondrespondent in this respect. The petitioner had alleged that his petition was not disposed of by the learned Additional Sessions Judge, but yet the learned Additional Sessions Judge was continuing with the proceedings. That must have been one of the reasons which prompted this Court to order that final orders need not be passed. The petitioner ought to have brought to the notice of this Court the disposal of the said application, which he had not done. Therefore, on this ground also the petitioner has to be denied relief.

Further the secondrespondent also contends that trial of the case is almost nearing completion. In these circumstances, I feel that this is not a fit case for quashing the proceedings before the learned Additional Sessions Judge, at this stage. But, if ultimately on the evidence letin before him if the learned Sessions Judge finds that the petitioner had committed the alleged act while acting in the discharge of his official duty and that the sanction as contemplated under Section 197 Cr.P.C. was required before taking cognizance of the offences, then the learned Sessions Judge will take that aspect also into consideration while deciding this case ultimately.

This petition is accordingly dismissed with these observations.