Pritam Singh and Others vs Ashok Kumar and Anr.

Surinder Singh, J.

This petition has been filed by Pritam Singh and five others against Ashok Kumar and State of Punjab respondents, under section 482, Code of Criminal Procedure, with a Prayer for quashing of the charge framed by the Judicial Magistrate First Class, Hoshiarpur, on July 9, 1985 in the complaint filed by respondent No. 1 against the petitioner.

A view salient facts regarding the background of the matter may be noticed. On July 24, 1981, Ashok Kumar respondent filed a complaint against eleven persons under various sections of the Indian Penal Code. All the accused were summoned by the Judicial Magistrate First Class, Hoshiarpur in the complaint excepting Piara Singh who had died during the pendency of the proceedings. Meanwhile, the Police submitted a challan against three of the accused, namely, Varinder Kumar, Darshan Lal and Kewal Kumar on the same facts. The learned Magistrate vide his order, dated November 11, 1983 (Copy Annexure P/2) directed that the case against these three accused should proceed and a separate complaint be filed against the present petitioners. Consequently, a separate complaint was filed by respondent No. 1 against the petitioners and one Amar Singh on November 19, 1984. After recording the statements of some witnesses, the learned Magistrate discharged Amar Singh aforesaid but framed charge under sections 120B, 468, 465/471, Indian Penal Code, against the petitioners as per order, Annexure P/4. The chargesheet is Annexure P/5. The present petition as already noticed, has been filed with a prayer for quashing of the said chargesheet.

The prima facie allegations of the respondent complainant against the petitioner been noticed in the order, dated July 9, 1985 of the learned Magistrate, Annexure P/4. In the nutshell, these allegations are that four of the petitioners are partners of the Firm Amin Chand and Company. They used to purchase bagar grass from the land belonging to the complainant, his two brothers and three sisters. Varinder Kumar, an accused who had been tried separately, was a cosharer in the aforesaid land. He, with intent to cheat the complainant and other coowners forged certain power of Attorneys and on the basis of these power of Attorneys sold away large pieces of land to the Firm Mesrs Amin Chand and Company. The allegation is that the petitioners had entered into a conspiracy with the said Varinder Kumar and had purchased the land knowing that Varinder had no authority to alienate the land on behalf of the owners. It is further alleged that the complainant or the other coowners had never appointed Varinder Kumar at their Attorney. It is on these allegations that the petitioners are sought to be charged in the present case.

There is no gainsaying that the extraordinary powers vested under section 482, Code of Criminal Procedure, are generally not to be exercised in a case where there is prima facie material for the framing of a charge. The argument, in the present case, however is that the very nature of the charge framed against the petitioners is such that the same cannot be sustained under the law. It is further contended there is no material at all on the record to show that the petitionersvenders had entered into a conspiracy with Varinder Kumar. In fact, Varinder Kumar was not even arrayed as an accused along with the petitioners. As already noticed, Varinder Kumar''s prosecution for various offences in the Court of the Judicial Magistrate First Class, Hoshiarpur, culminated with his conviction under sections 467, 468, 471 and 420, Indian Penal Code, as per judgment of that Court, dated November 12, 1983 (Annexure P/6). For the said offences, Varinder Kumar was sentenced to various terms of imprisonment and fines, the maximum being two years Rigorous Imprisonment and a fine of Rs. 2,000/ under section 467, Indian Penal Code.

The question which arises for consideration in the wake of the above contention is as to whether the petitioners could be hauled up for the charge of conspiracy when no such charge was framed as Varinder Kumar in the case against him. The answer is obviously in the negative. If there was a charge of conspiracy between the petitioners and Varinder Kumar aforesaid, all of them had to be tried jointly for the said offence. The law is wellsettled that if an accused person is not tried for an offence for which he could have been validly charged at the time of his trial, such a charge cannot form the basis of retrial of the accused. "The very notion of conspiracy envisages the trial of all the conspirators at one trial. It is not disputed that in the case against the petitioner. Varinder Kumar has not been arrayed as an accused. In fact, it was Varinder Kumar who was responsible for the whole episode and who suffered a conviction on the basis of a confession, as per judgement, Annexure P/6. In so far as the petitioners are concerned, no evidence whatsoever has been pointed out from the record to support the allegation of conspiracy between the petitioners and Varinder Kumar in regard to the forgery of the Power of Attorneys or their illegal use by the petitioners for the purpose of the sale of land in their favour.

In view of what has been discussed above, the charge sheet framed against the petitioners by the Judicial Magistrate First Class, Hoshiarpur (Annexure P/5) is patently illegal and is, therefore, quashed.

Proceedings quashed.