Makhan Singh v. State of Punjab

CRM-M-30235-2022 -1-2023:PHHC:080585o 205 oo INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANA AToCHANDIGARH o oCRM-M-23723-2022 oDateoofoDecision:29.05.2023 oo MAKHANoSINGH oooo oooooooooooooo.........oPetitioner Versuso STATEoOFoPUNJAB oooo oooo.....oRespondent 2) CRM-M-23731-2022o PARAMJIToKAURoALIASoPARMJEETo .......Petitioner Versus STATEoOFoPUNJABo ........Respondent 3) CRM-M-23748-2022 RAJWINDERoSINGHoALIASoRAJUo ......Petitioner Versus STATEoOFoPUNJABo ooooooo........Respondent 4) CRM-M-23901-2022 BALIHARoSINGHo .........Petitioner Versus STATEoOFoPUNJABo ooooooooo........Respondent 5) CRM-M-30235-2022 AMANDEEPoSINGHo ........Petitioner Versuso STATEoOFoPUNJABo ooooooooo.......Respondent CORAM:oooHON'BLEoMR.oJUSTICEooJAGMOHANoBANSAL Presento: Mr.oNareshoKumaroBansal,oAdvocateo forotheopetitioner. Ms.oGuramritoKaur,oDAG,oPunjab CRM-M-30235-2022 -2-2023:PHHC:080585o **** oJAGMOHANoBAN,A.oo,oJ*o1O2!3-o +. B$ o this o common o order o ,RM-M-./0./-.1.., o ,RM-M- ./0/+-.1..,o,RM-M-./042-.1..,o,RM-M-./31+-.1..oando,RM-M- /1./4-.1..,oasoalloareoarisin)ooutoofooneo5&R,oareohere#$odisposedoof.o5or theosa6eoofoconvenience,ofactsoareo#orro(edofromo,RM-M-./0./-.1... .. 7heopetitionerothrou)hoinstantopetitionounder Section 482 Cr.P.C. is seeking quashing of FIR No.157 dated 29.06.2012 registered at Police Station Nakodar, Jalandhar(Annexure P-1), under Sections 376 and 420 of IPC. /. The brief facts emerging from the record which are necessary for the adjudication of the present petition are that prosecutrix lodged a complaint alleging that Gian Chand Patwari introduced her to Pavitar Singh who further introduced her with Sharma from Canada, Daljit from Phagwara and Paramjit Kaur. A cordial relations developed between all of them. All the aforesaid persons sexually exploited her on the pretext of sending her to Canada. She was defrauded on the promise of sending her to Canada after getting her married with Makhan Singh. She was locked in a matrimonial case with her husband and was in need and the accused provided her accommodation. Pavitar Singh, Mohinder Singh, Makhan Singh, Pappu, Jaswinder Singh, Raju, Balihar and Sharma (27-28 persons in total) sexually exploited her. On the complaint of prosecutrix aforesaid FIR came to be registered.

¶4The police after completing investigation filed its report under Section 173 Cr.P.C. Charges came to be framed against 5 persons. CRM-M-30235-2022 -3-2023:PHHC:080585o The petitioners were out of country and they came to be declared proclaimed offender. By order dated 04.04.2022 passed by this Court, the petitioners were directed to surrender before the Trial Court and move an application for regular bail. The arrest of the petitioners was stayed till the disposal of bail application. The petitioners surrendered before the Trial Court and they were admitted on bail. During the pendency of trial against five persons i.e. other than petitioners, star witness i.e. prosecutrix came to be examined. She turned hostile. The Additional Sessions Judge, Jalandhar vide judgment dated 11.10.2021 acquitted four co-accused and one co-accused died during the pendency of trial.

¶5Learned counsel for the petitioner inter alia contends that that from the perusal of FIR no offence is made out against the petitioner. The allegations against the petitioner and other accused who have already been acquitted is pari materia. The trial court has passed detailed and reasoned order while acquitting co-accused. The respondent No. 2 has not supported the case of the prosecution as she has not identified the co-accused who were appearing before the Trial Court. Respondent No.2 had deposed that she does not know the petitioner and she was declared hostile, thus, there seems no reason to continue proceedings against the petitioner.

¶6Learned State counsel does not dispute the factual position and confirms that co-accused in FIR stands acquitted.

¶7I have heard the arguments and perused the records.

¶8The petitioner through instant petition is seeking quashing of CRM-M-30235-2022 -4-2023:PHHC:080585o impugned FIR on the ground of acquittal of four co-accused as role attributed to the present petitioner is pari materia. Before adverting with facts of this case, it would be relevant to notice scope and power of high court while adverting with these issues.

8.1. A two judge bench of Supreme Court in State of Haryana & others Vs Bhajan Lal & others 1992 Supp (1) SCC 335 after considering plethora of judgments has illustrated circumstances where High Court in exercise of its power under Article 226 of Constitution of India and Section 482 of Cr.P.C. can quash FIR. The Supreme Court has reminded the courts that power should be exercised in exceptional cases and with full circumspection. Relevant paragraphs and findings read as:

¶102In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their CRM-M-30235-2022 -5-2023:PHHC:080585o face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for CRM-M-30235-2022 -4-2023:PHHC:080585o wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

¶103We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

2... A two judge Bench of this Court while acquitting appellants has adverted with status of co-accused in Sudo Mandal @ Diwarka Mandal vs. State of Punjab 2011(2) R.C.R.(Criminal) 453 and has held: "22. While disposing of these two appeals, we are very much concerned about the absconding village rustic accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal, who had successfully evaded the dragnet of the police. The Investigating agency has put up a case implanting eye witnesses as against all the accused. Both the eye witnesses projected by the prosecution had not passed the test of trustworthiness. Their own showing would go to establish without any pale of doubt that they could not have witnessed the occurrence. The other materials produced by the prosecution also did not advance the case of the prosecution any further. The above facts and circumstances have persuaded us to come to a definite conclusion that the accused in this case were not the perpetrators of crime of murder as alleged by the ASGAR ALI prosecution. The same set of materials would be CRM-M-30235-2022 -7-2023:PHHC:080585o produced before the Sessions Court on production of the remaining three accused namely Radha Mandal, Rajiya Mandal and Sambodh Mandal. After all the poor innocent labourers had migrated to other places to eke out their livelihood. The appellants herein had in fact suffered imprisonment for such a long time leaving behind their kith and kin, who might have been in dire need of financial support and help from them. Such an unpleasant situation shall not be created for the other three accused against whom also there is no material on record to fasten them with the charge of murder. We seriously pondered over rendering judicial succour to those faceless and voiceless accused who had taken to heals and hidden themselves apprehending the wrath of criminal proceedings for the heinous crime of murder. We are convinced that our judicial arm is not so crippled as to betray the vague hope of the hopeless.

¶23We 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 of facing the prosecution for murder. Section 482 of the Code of Criminal Procedure reads as follows:- "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 CRM-M-30235-2022 -8-2023:PHHC:080585o any Court or otherwise to secure the ends of justice."

¶24The 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 Mandal pending before Judicial Magistrate Ist Class,Bathinda/Sessions Judge, Bathinda, as no useful purpose will be served even if they are procured and CRM-M-30235-2022 -9-2023:PHHC:080585o ordered to face the trial in this case."

8.3. A single judge bench of Karnataka High Court in Salman @ Shameer Vs State of Karnataka (W.P. No. 25286 of 2018 (GMRES). D/d. 13.7.2018) has held:

¶5In another decision reported in 2002 (1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer v. State of Karnataka by Kumaraswamy Layout Police, wherein this Court has held that: "Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgment of acquittal is passed, when P.W. 1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted. Holding that the proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed was quashed."

¶6In the above said backdrop and the dictum of the Hon'ble Apex Court and this court, the only point that requires for consideration of this court is - "Whether the materials placed before the court against the accused person who has already acquitted and the material available against the petitioner herein, are one and the same and inseparable if juxtapose compared with each other".

¶7If the allegations are indivisible and inseparable in CRM-M-30235-2022 -10-2023:PHHC:080585o nature, in such an eventuality, the judgment of acquittal can also be extended to the absconding accused persons or against whom, a separate split up charge sheet has been filed. Therefore, it is incumbent upon the court to examine the materials on record to find out whether the petitioner is entitled for such benefit in a given particular case. Therefore, it is just and necessary to ascertain the factual aspects of this case."

¶9The conceded position emerging from the record is that the allegations against the petitioner as well as co-accused are identical. The prosecutrix turned hostile. The prosecutrix in her deposition before the Trial Court refused to identify not only persons facing trial but also others including present petitioner. The Trial Court has noticed this fact in its judgment dated 11.10.2021. The relevant extracts of judgment dated

11.10.2021 are reproduced as below:

¶11Inoorderotooproveoitsocase,otheoprosecution examinedocomplainant/prosecutrixo(thorughoCamera proceeding).oSheostatedothatoinotheoyearo2 11,osheo!as livingoato"eepo#agar,o$alandhanoCantt.o%ero&ather hadodiedosomeo1'oyearsoagooandoa&terohisodemise,oshe isodoingotheo(usinessoo&opropertyoconsultantoonoher o!nosinceothen.oSheodidonoto)no!otheopersonsonamely *avittar o Singh, o $agtar o Singh o alias o Commander, Su)h!inderoSinghoaliaso*appu,o+ohinderoSinghoand %arvinderoSinghoaliaso,haur,o!hooareopresentoinothe courtoasoaccused.oSheo&urtherostatedothatosheoneverohad anyodealingo!ithotheosaidopersonsonorotheyoeverodealt !ithoheroinoanyocapacity.oSheoalsoodidonoto)no!othe personsonamelyo-mandeepoSinghosonoo&o$agtaroSingh, +a)hanoSinghosonoo&o+onoSingh,o.a/!inderoSinghASGAR ALI CRM-M-30235-2022 -11-2023:PHHC:080585o aliasoRajuosonoofoPavitteroSinghoresidentsoofovillage Dhaliwal,oPSoSadaroNakodarooroBaliharoSinghosonoof PritamoSinghoresidentoofovillageoLakhanpaloPSoSadar Jamsher,oJalandharoandoParamjitoKaurodaughteroof Avtar o Singh o resident o of o Satnampura o Phagwara DistrictoKapurthala.oNoooneoeverodealtowithoasoa commodityonorotriedotoosoldoheroforosexuallyopurposes. SheowasoneverotakenotooanyohouseooroKothiobyothe accusedopersonsonorosheowasopressedouponotoohave sexualoactsowitho27-28opersons.oAccusedopersonsonever engagedoheroorocompelledoheroforoanyoactivityoof sexualonatureowithoanyootheropersonoagainstoherowish, willooroconsent.oSheoneveromadeoanyorepresentationoor complaintoagainstotheoaccusedoorotooanyootherohigher authoritiesoforotakingolegaloactionoagainstothemofor ruiningoherolifeoandobody.oThisowitnessowasodeclared hostileoduringoheroexamination-in-chiefobyoLd.oAddl. PPoforotheoStateoandosheowasocrossoexaminationowith byold.oAddl.oPPoforotheoStateowithotheopermissionoof thisocourt. 12otoo27 xxxxxxx

¶28After o going o through o the o arguments advancedobyolearned.oAddl.oPPoforotheoStateoand learned o counsel o for o theo accused o and o after o going throughotheorecordominutely,oIoamoofotheoviewothatothe presentocaseohasobeenoregisteredoonotheocomplaintoof victim/prosecutrixoagainstotheoaccused.oTheopresent FIRowasoregisteredoagainstotheoaccusedoinotheoyear 2012oandothereafter,otheopresentocaseowasogoingoonofor procuringotheopresenceoofoallotheoaccusedopersonofor itsocommencementoforolongotime,oandoafteroprocuring theopresence,otheochargeowasoframedoagainstoaccused in o the o year, o 2018 o and o thereafter o the o prosecutrix CRM-M-30235-2022 -12-2023:PHHC:080585o appearedoinotheocourtoasoaowitnessoforoheroexamination on o 17.02.2021. o Interestingly, o star o witness o ie prosecutrix/victim o has o been o examined o by o the prosecution o as o PW1, o but o has o not o supported o the prosecutionoversionoandosheowasogotodeclaredohostile atotheorequestoofolearnedoAddl.oPPoforoStateoandoduring cross-examination obyolearnedoAddl.oPPoforoState, nothingoincriminatingoagainstotheoaccusedocouldocome outofromotheomouthoofotheseowitnessesowithoregardoto commissionoofooffence.oTheootheroevidenceoledobyothe prosecutionoisonotosufficientotooconnectotheoaccused withotheocommissionoofooffence.oAsosuch,othereoisono convincingoevidenceoonorecordotooconvictotheoaccused.

29.oInoviewoofotheoaboveodiscussion,otheoprosecution hasofailedotooproveoitsocase,obeyondoanyoreasonable doubt.oSo,opointoofodeterminationostandsodecidedoin favour o of o accused. o Accused o Jagtar o Singh o alias Cammrade,oSukhwinderoSinghoaliasoPappu,oMohinder SinghoandoHarwinderoSinghoaliasoBhoroareohereby acquittedoofotheochargesoframedoagainstohim.oTheir bailobondsoandosuretyobondsostandsodischarged.oCase property,oifoany,obeodealtowithoasoperorules,oafterothe periodoofofilingoappeal/revision,oifoany,osubjectotooits result. o File o be o consigned o to o the o Record o Room, Jalandharowithotheodirectionotheosameobeorevivedoas andowhenoaccusedoAmandeepoSingh,oRajwinderoSingh @oRaju,oBaliharoSinghoandoParamjitoKauroegurender beforeotheocourtooroarrestedobyotheopolice.

¶10Inotheocaseoinohand,otheoprosecutrixohadoallegedothato27-28 personsocommittedorapeouponoher.oSheospecificallyonamedo10opersons includingopresentopetitioner.oInoherotestimonyobeforeotheoTrialoCourtoshe CRM-M-30235-2022 -13-2023:PHHC:080585o hadoresiledofromoheroallegationsonotoonlyoquaopersonsofacingotrialobutoalso against o present o petitioner. o She o has o specifically o resiled o from o her allegationsoagainstotheopetitioneroapartofromoco-accused.oTheoTrialoCourt hasoacquittedopersonsofacingotrialoonotheobasisoofostatementoofoprosecutrix. Theoallegationsoagainstotheopetitioneroisopari-materiaowithotheoco-accused whoohaveoalreadyobeenoacquitted.o

¶11Inoviewoofoaboveonotedopeculiarofactsoandocircumstancesoof theocaseoandoapplyingotheoprinciplesolaidodownobyoHon'bleoSupreme CourtoinoBhajanoLalo(supra),ojudgmentoofothisocourtoinoSudooMandal (supra)oandojudgmentoofoKarnatakaoHighoinoSalmano@oShameero(supra), thisocourtoisoofotheoconsideredoopinionothatoitowouldoinotheofitnessoofothings andointerestoofojusticeoifopresentopetitionoisoallowedoandoaccordingly allowed.o

¶17oFIRoNo.157odatedo29.06.2012oregisteredoatoPoliceoStation Nakodar,oJalandhar,ounderoSectionso376oando420oofoIPCoandoalloother consequentialoproceedingsoareoherebyoquashedoquaotheopetitionero(s). (oJAGMOHANoBANSALo) ooooooJUDGE

29.05.2023 Ali Whetherospeaking/reasoned Yes/No WhetheroReportable Yes/No