Punjab & Haryana High Court Bar Association vs State of Punjab

S.C. Malte, J.

Petitioner 1 is the Bar Association of the Punjab & Haryana High Court, Chandigarh, Petitioner 2 is a practising lawyer from Ludhiana. This petition has been filed under Articles 226/227 of the Constitution read with Section 482 of the Code of Criminal Procedure for quashing the FIR No. 50 dated 1561996 filed against petitioner 2, and for further direction for investigation in the matter by an agency independent of the Punjab Police.

Petitioner 2 claims to be entitled to certain properties from his ancestors. Respondent Jai Ram is the uncle of petitioner 2. The contents of the petition indicate that there were civil and criminal cases between these two parties on the issue of right or share in the properties. As the position presently spelt out, the decision in the civil suit was in favour of petitioner 2. Against that decision R.S.A. No. 21 of 1991 is presently pending in this High Court.

The incident in this case seems to have arisen out of the dispute over possession of a house. Petitioner 2 claims that on 1171994 respondent 4 in connivance with the local police committed house trespass and caused grievous injuries to petitioner 2, and further handcuffed him publicly and forcibly took him in police van and detained him illegal custody upto 1271994. The father of petitioner 2 sent a telegram to the High Court and made a grievance regarding the illegal detention of petitioner 2. The High Court took notice of it and proceeded, which is registered as separate Criminal Writ Petition 515 of 1994, which is also fixed along with these matters for consideration. At a later stage I will make a brief reference to it to the extent it is necessary for the disposal of this petition. In Criminal Writ Petition 515 of 1994 an enquiry by the Senior Subordinate Judge, Hoshiarpur, was ordered, and his enquiry report indicated that certain police officers were responsible for illegal detention and torture of petitioner 2. Presently that matter is pending before this court to keep a track on the action taken by the State against the erring police officers. Incidentally, it may be mentioned that consequent upon the report by the Senior Subordinate Judge holding certain police officers responsible for the illegal detention and torture of petitioner 2, the State has already initiated departmental action against those police officers, and it is presently in progress.

In this petition, the petitioners have also mentioned certain steps taken by respondent 4 for getting some interim order in the R.S.A. No. 21 of 1991, referred above. According to the petitioner, respondent 4 was unable to grab the property. Presently I need not dilate in respect of civil litigation between the parties and the present state of it.

In so far as it pertains to the present petition, the matter is in respect of the FIR No. 50 of 1996 which the petitioners seek to quash. As per the complainant, incident in that case took place at 5.30 p.m. on 1361996. Annexure P8 is the copy of the FIR registered on the basis of information given by respondent 4 Jai Ram. Briefly stated, the allegations are that petitioner 2 armed with an axe charged towards the complainant (respondent 4) and threatened him to kill. It is further alleged that petitioner 2 gave an axe blow on the right arm of the complainant. The other accused Mansa Ram, Manohar Lal, Balbir Chand and Kuldeep are also said to be the culprits along with Gurbhajan Singh (petitioner 2). Briefly, the allegations are that all of them caused injuries by giving axe blows. The injured was taken to the hospital in an unconscious state, and was treated. The FIR was registered on the basis of daily diary report No. 25 dated 1561996 recorded at 5.45 P.M. The FIR indicates that besides the culprits named in the FIR there were other unidentified culprits also. He stated that the names of those unidentified culprits would be given by him later on after ascertaining their names. On the basis of this information, initially the FIR was registered under Sections 324, 323, 148 and 149 IPC.

The further contention of the petitioners is that, later on respondent 4 approached a private medical practitioner and obtained a certificate showing that there was a metallic particle found in the injury sustained by respondent 4 during the incident mentioned above. On the basis of such report, offence under Section 307 IPC was also added to the FIR mentioned above.

The contention of the petitioners is that the FIR mentioned above is a total fabrication in order to pressurise petitioner 2 in the course of litigation pertaining to the immoveable properties. It is claimed that respondent 4 in connivance with local police has fabricated false evidence against petitioner 2, and thus lodged totally false First information Report. It is further submitted that the contention by the petitioners is further fortified on finding that in Habeas Corpus petition No. 515 of 1994, referred above, the judicial officer on enquiry found certain police officers responsible for having illegally detained petitioner 2 and for having caused him certain injuries. The rest of the petition pertains to the grievance that the police actively helped respondent 4 in concocting a false case. The allegations are that certain witnesses are also unreliable. It is also claimed that respondent 4 is a habitual offender and unreliable.

Respondent 4 filed reply. Regarding civil litigation, he admits that there was civil litigation between the parties on the issue of ownership and possession of certain immoveable property. He has made reference to certain observations of the Courts pertaining to the reliability or otherwise of the petitioner 2. With that aspect presently I am not concerned. His contention was that an attempt on his life was made as a result of which FIR referred above has been properly and rightly registered. He makes a grievance as to the correctness or otherwise of the enquiry and the result of inquiry which was conducted by the Senior Subordinate Judge in respect of the allegations in the Habeas Corpus petition No. 515 of 1994. He denied the allegation that he lodged a false report implicating petitioner 2. His contention is that he had sustained multiple fractures and the head injuries in the incident stated in the FIR. However, allegedly, at the instance of petitioner 2 the doctors issued certificate showing injuries lesser in gravity instead of what those were in fact. Rest of the averments pertain to the contention in support of the statements in the FIR.

On behalf of respondents 1 to 3, an affidavit of Deputy Superintendent of Police, Sub Division Balachaur, District Nawanshehar, was filed. It is contended that petitioner 2 is the son of a police Inspector (now retired) and is a practising Advocate, and, therefore, he is taking undue advantage of his position. Reference is also made to the pendency of civil litigation between the quarrelling parties. It is further submitted that during examination of the injuries of respondent 4 while in PGI hospital, certain fractures, including head injury, were noticed and, therefore, the FIR was rightly registered. It is also submitted that the State has no objection even if the investigation in respect of the occurrence dated 1361996 was entrusted to some agency other than the Punjab Police. Rest of the contentions and allegations in the petition were denied.

The counsel for the petitioners submitted that in the background of civil litigation, it is obvious that respondent 4 had an axe to grind against petitioner 2 and out of vengeance he has filed a false case which deserves to be quashed. He further submitted that the enquiry report in connection with wrongful detention of petitioner 2 also indicated the highhandedness of the police while detaining petitioner 2 and that further fortifies the claim of the petitioner that he was falsely implicated. It was contended that on the date of incident, petitioner 2 had appeared in Court in certain cases and thus he was not at all present at the time and place where the incident is said to have taken place. It was further submitted that the initial Medical examination in the PGI Hospital did not reveal any serious injury to respondent 4; however, respondent 4 later on managed to get an injury certificate from a private medical practitioner in order to add Section 307 IPC to the FIR already registered. According to the petitioners that was an additional factor to arrive at the conclusion that FIR was false, and that it deserves to be quashed.

By filing Criminal Misc. 24327 of 1997 in this case, it was further prayed that in view of the discrepancy of the nature of injuries found in the certificate issued by the doctors of PGI Hospital and the private medical practitioner, a special board of doctors in PGI Hospital may be constituted to examine the injuries of respondent 4 in order to ascertain whether there is some metallic particle present in the head of respondent 4.

On behalf of the petitioners it was further submitted that though this court by order dated 1431997 had stayed further proceedings in FIR No. 50 of 1561996, the police have filed a chargesheet in the court subsequently and thus disobeyed the direction given by the Court. It was submitted that suitable action against the police should be taken for having committed the contempt of the Court. It was further submitted that the Deputy Commissioner, Hoshiarpur, has further directed the enquiry into the FIR mentioned above.

On behalf of the respondents it was submitted that on the basis of the FIR, chargesheet has been submitted in the Court on 1831997 because by that time there was no communication of the order dated 1431997 by which further proceedings in the FIR were stayed. It was, therefore, submitted that no contempt has been committed by the police officers. Regarding the prayer for quashing the FIR, it was submitted that since the matter is now seized by the trial court, it would be appropriate to leave the matter to that court to sort out whether or not material on record is enough to proceed further. It was further submitted that in respect of the allegation that petitioner 2 was illegally detained and was assaulted by the police, already departmental proceedings are in progress, and its outcome is awaited and, therefore, it would be too early to express any opinion as to the nature of allegations against the police officers.

On hearing the counsel from both sides it is quite clear that petitioner 2 and respondent 4 are at loggerheads on the issue of right, title and interest in immoveable property. The admitted position is that a number of civil and criminal matters had arisen due to the dispute over the immoveable property. Needless to say that the relations between the two have been strained extremely. In the set of circumstances, the material placed in support of the claim of the rival parties certainly deserves to be scrutinised and to be tested by crossexamination. Further the nature of evidence that would be coming before the court in the course of trial in the case, will have also its own impact on the weight and value to be attached to various pieces of evidence. The admitted position in this case is that the chargesheet on the basis of the FIR, referred above, has been submitted in the court and the matter is under consideration. Since one of the offences allegedly pertains to Section 307 IPC, it is obvious that the Magistrate First Class will commit the case to the court of Sessions for trial. Since the FIR has culminated into a chargesheet submitted before the court, there hardly remains any propriety and necessity for quashing the FIR. The merits and demerits of the case are now to be considered by the Court before whom the case would be put up for further progress. The Sessions Judge while dealing the matter before him would be required to consider the question of framing the charge by following provisions of Sections 226 and 227 of the Code of Criminal Procedure. Section 226 contemplates address by the Prosecutor who describes the charges brought against the accused and states by what pieces of evidence he proposes to bring home the offence. Thereupon, the Sessions Judge has to consider the case under Sections 227 and 228 of the Code. Section 227 provides that Sessions Court shall consider the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf, the Judge has to form an opinion whether there is sufficient ground for proceeding against the accused. If he finds that there are no sufficient grounds to proceed against the accused, he shall discharge the accused and record his reasons for so doing. If he finds that there is sufficient material to proceed further, he would frame the charge under section 228 of the Cr.P.C. Needless to state that while performing all this exercise, the Sessions Judge would be in a position to consider all the material placed before him, and would be in a position to dispose of the matter, as the case may be. Under these circumstances, I find that the extraordinary jurisdiction of this court under Article 226 of the Constitution or inherent powers under Section 482 of the Code of Criminal Procedure need not be exercised as there is already sufficient procedure to put up the case which the petitioners propose to advance in this Court. Moreover, in such cases, the trial court would be in a position to apply its mind to all the documents submitted under Section 173 Cr.P.C.

In so far as it pertains to the prayer for formation of a board of medical experts in order to ascertain the nature of injuries sustained by respondent 4, that aspect can also be considered by the court before whom the case would come in the manner mentioned above. Section 227 of the Cr.P.C. contemplates the hearing of submissions of the accused. Moreover, if the accused wanted to place material to show the falsity of the prosecution case, he has opportunity to place it by way of defence evidence. In my opinion, therefore, petition for appointment of a board of Medical experts does not survive in this court for the reasons mentioned above.

Counsel for the petitioners submitted that on the date and time of the incident, the petitioner 2 was elsewhere and there is ample material to prove that. In other words, the petitioner 2 wants to rely on the plea of alibi. The question of weight and value of the plea of alibi as a defence, is a matter to be considered by the Court before whom the case would come in the manner mentioned above. Obviously, therefore, in this petition it would not be possible to make any observation in respect of credibility of such plea.

Regarding the allegations that contempt has been committed by disobeying the order of stay granted by this Court on 1431997, the matter would depend on the question whether that order was duly communicated before the police officers submitted the chargesheet in disregard to the stay of further proceedings in the FIR. At present there is no material to show that there was such communication, despite which steps were taken in disobedience of the stay order. Moreover, disposal of this petition for quashing the FIR, need not be stalled simply because there is some grievance that certain order of the Court had not been obeyed.

Counsel for the petitioners submitted that the enquiry report submitted by the Senior Subordinate Judge had clearly indicated that the police officers named in the report were responsible for the illegal detention and injuries caused to petitioner 2. On this premise he claims that the FIR should be filed against these erring police officers. That aspect as such would be a matter to be considered in the Habeas Corpus petition No. 515 of 1994. Moreover, the disposal of this case need not be postponed because in another matter certain police officers were found to have committed atrocious act against the petitioner 2. Moreover, that aspect is already under enquiry by way of departmental action. The result of that departmental enquiry would also be material for considering the steps to be taken in that respect. Presently, therefore, no opinion can be expressed in that respect.

Counsel for the petitioners further submitted that the investigation of the alleged offence in FIR No. 50 of 1996 should be entrusted to some independent machinery. He invited my attention to para 15 of the affidavit filed by the Deputy Superintendent of Police wherein he has stated that he has no objection to entrust the investigation to some agency other than the Punjab Police. Moreover, in that context it may be noted that affidavit was sworn in on 11121996. Since then considerable time elapsed, and the matter arising out of the said FIR is already subject matter of consideration before the competent court, as mentioned above. Therefore, there hardly remains a case for further investigation in that case based on FIR No. 50 of 1996.

In the result, I find that this petition deserves to be dismissed. JUDGMENTed accordingly.