TaxTMI 
TaxTMI 
2017 (11) TMI 1984
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....ndent of Police, Fazilka, which investigated the FIR and filed a challan on 06.09.2015 against nine persons, since remaining two persons were declared Proclaimed Offenders and finally one of them was never apprehended. Thus, the trial was held against 10 persons. Thereafter, on 18.11.2016, a supplementary charge-sheet came to be filed against the two Proclaimed Offenders. Petitioner-Sukhpal Singh Khaira had filed CWP-8999-2015 in this Court, praying for investigation by the Central Bureau of Investigation in the said FIR. Upon issuance of notice, the said petition was heard on some dates and on 14.07.2016, Additional Advocate General for the State of Punjab made a statement that petitioner-Sukhpal Singh Khaira was not named as an accused in the said FIR and, as such, there was no cause of action for maintaining the petition. As a sequel, petitioner-Sukhpal Singh Khaira withdrew the said petition on 16.03.2017. During this period, PW-4 Ajmer Singh (Superintendent of Police) and PW-5 Jaswant Singh (Inspector) were examined in the trial against 10 accused persons. The evidence of PW-4 Ajmer Singh and PW-5 Jaswant Singh was completed on 06.07.2017 and the prosecution closed its evidenc....
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....rosecution qua the present petitioners is out and out mala fide and with a view to cause damage to the reputation of petitioner-Sukhpal Singh Khaira, who is a sitting Member of Legislative Assembly and Leader of Opposition in the Punjab Assembly. Mr. Rai submitted that petitioner-Sukhpal Singh Khaira was apprehending mala fide action against him and that is why he had filed CWP-8999-2015 requesting for investigation by the Central Bureau of Investigation, though ultimately the same was withdrawn by petitioner-Sukhpal Singh Khaira. ii) The petitioners were not at all in picture even at the time of registration of FIR No. 35 dated 05.03.2015 nor at the stage of filing of challan/supplementary challan as was filed by the Special Investigation Team. Not only that, when finally PW-4 Ajmer Singh and PW-5 Jaswant Singh were examined on 05.09.2016 and their evidence was completed and closed on 06.07.2017, those witnesses did not even whisper about the petitioners in their substantive evidence before the Court. Not only that, request under Section 311, Code of Criminal Procedure, that was made was also declined by the trial Court. Strangely enough, according to them, a written application....
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...., then, submitted that the trial Court, while recording the reasons in support of the impugned order has relied fully on the evidence of the witnesses i.e. PW-4 Ajmer Singh, PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh, which is wholly inadmissible in law and, as such, is no evidence in the eye of law on the basis of which the impugned order could have at all been made by the trial Court. The meaning of the word 'evidence', as propagated by the Apex Court, only means legal and admissible evidence and not the evidence based on imagination. They took me through the evidence of all these three witnesses and submitted that whatever these witnesses have deposed in their evidence, there was no authenticated record in respect of the call details, evidence in the form of e-mails, etc., which is otherwise a requirement under Section 65-B of the Evidence Act regarding authenticity of evidence. In other words, according to them, until and unless authenticated evidence, as contemplated under Section 65-B of the Evidence Act, is brought on record, the evidence tendered by them was wholly inadmissible and no evidence in the eye of law, on the basis of which the trial Court could not h....
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....ase, the trial Court had separated the application under Section 319, Code of Criminal Procedure, for the reasons beyond his control and ordered separate registration of the application as there was an order from this Court directing him to decide the trial itself against the ten accused persons within a period of three months i.e. on or before 07.11.2017. At any rate, he decided the application under Section 319, Code of Criminal Procedure, simultaneously with the judgment of conviction dated 31.10.2017 and, therefore, it could not be said that he had become functus officio. He, then, submitted that in one case, after judgment of acquittal, High Court confirmed the order summoning additional accused under Section 319, Code of Criminal Procedure, after four months of the judgment of acquittal. 4. The learned State counsel then submitted that the evidence that has been produced by the prosecution on record on which reliance was placed by the trial Court to summon the accused persons, including the petitioners, cannot be said to be inadmissible, as contended by the learned senior counsel for the petitioners. According to him, the evidence that has been led is good and sufficient. Al....
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....he seriousness of the offences and as it is seen that ten accused who have been convicted have been sentenced to undergo rigorous imprisonment for 20 years. He, then, emphasized that offences relate to drug trafficking, etc. from the neighbouring country Pakistan. Therefore, the Court has viewed it seriously. Finally, he prayed for dismissal of the revision petitions. 7. Learned State counsel also filed written submissions on behalf of the State which have been taken on record. Consideration: The following dates would relevant in the present matter:- Date Event 05/03/15 F.I.R. No. 35 under Sections 21/24/25/27/28/29/30 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Section 25-A of the Arms Act and Section 66 of the Information Technology Act, 2000, was lodged at Police Station Sadar, Jalalabad against 11 accused persons. 09/03/15 Special Investigation Team constituted to investigate the matter 06/09/15 Special Investigation Team filed challan against nine persons. Other two persons were declared proclaimed offenders. Later, out of them, one was apprehended and, thus, trial was held against ten persons. 2015 CWP-8999-2015 filed by petitioner-Sukhpal Singh....
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....t was not ruling in the State of Punjab. The entire action which has been assailed and the allegations relate to the period during earlier Government. That apart, there are no specific allegations about mala fides against any particular person nor any such person has been made a party to the petition in order that the plea regarding mala fides could be properly examined. It is a well settled legal position that adequate pleadings and proofs qua the party against whom mala fides are alleged is sine qua non for consideration of the question of malice in fact. The same is conspicuously absent and, therefore, I am not prepared to accept the submission that the actions taken by the prosecution are actuated with malice. Apart from that, petitioner-Sukhpal Singh Khaira himself had filed CWP-8999-2015 asking for investigation by the Central Bureau of Investigation but, then, he withdrew the said petition. Had he been really serious about the malice in fact, he would not have withdrawn the said petition. Merely because he was not the accused in FIR No. 35, the said petition was for investigation by the Central Bureau of Investigation and, therefore, this fact that his name was not in the FI....
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....R-4068-2014 decided on 24.03.2017. 12. I have carefully perused the said decision. It would be appropriate to find out the ratio decidendi laid down in that decision. For that purpose, the question of law that was framed therein is quoted hereinbelow, which reads, thus:- "Whether in terms of Section 319 of Code of Criminal Procedure, 1973 (for short 'Cr. P.C.'), the complainant in the subject FIR could be summoned as an accused based on the deposition of the defence witnesses before the trial Court during trial when the basic ingredients of Section 319 Cr.P.C. is that such a proposed accused is required to be tried together with the accused already on trial?" 13. The above question framed clearly shows that what was considered by this Court was as to whether the complainant in the FIR case himself can be summoned as an accused, based on the deposition of defence witnesses before the trial Court as the proposed accused is required to be tried together with the accused already on trial. In the present case, the above said position on the basis of the aforesaid question is not relevant and, therefore, the said decision has no application in the present case. The petitioner....
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.... (ii) the order dated 7th April, 2001 is illegal as no reasons have been assigned for proceeding against respondent No. 1 and; (iii) the order was too cryptic, were not gone into by the High Court. 6. The trial against Chandra Shekhar Singh was pending on 7th April, 2001 when the order under Section 319(1) of the Code was passed by the Court of Sessions. Thus, the order when passed cannot be said to be without jurisdiction on the stated ground since at that stage, the trial against Chandra Shekhar Singh was pending and respondent No. 1 summoned under Section 319 could be tried together with him. However, the trial against Chandra Shekhar Singh concluded before respondent No. 1 could be brought before the Sessions Court. Therefore, the question is, can respondent No. 1, after being summoned under Section 319 of the Code, be tried in the absence of trial pending against Chandra Shekhar Singh. In other words, the aspect to be determined is as to whether the order dated 7th April, 2001 would become ineffective and inoperative as a result of the conclusion of trial against Chandra Shekhar Singh before respondent No. 1 could be proceeded with for the offence for which warrants were iss....
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....al is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court. 13. On facts, the court could not have intended while concluding the trial....
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...., 2003 (1) RCR (Criminal) 220, held that the power under Section 319, Code of Criminal Procedure, can be exercised even after the judgment is concluded. In that case, the accused persons were acquitted by the trial Court and after four months of the conclusion of the trial, the trial Court exercised the power under Section 319, Code of Criminal Procedure, for summoning the additional accused. This Court relied upon the judgment in the case of Shashikant Singh (supra) for that purpose. The present case stands on a better footing inasmuch as the order was passed under Section 319, Code of Criminal Procedure, simultaneously with the judgment and order of conviction of the original accused persons. The contention raised by the learned counsel for the petitioners, thus, stands disposed of. 17. Learned senior counsel for the petitioners having taken this Court through the entire evidence of PW-4 Ajmer Singh, PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh submitted that a bare reading of the evidence of these witnesses shows that the evidence taken into consideration by the trial Court for making the order under Section 319, Code of Criminal Procedure, is not legal evidence as against t....
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....vant and admissible or inadmissible. At the same time, the prosecution cannot be forbidden from bringing to the Court such other evidence against the additional accused persons which can be proved as legally admissible evidence as a de novo trial is required to be held in the light of Sub-section (4) of Section 319, Code of Criminal Procedure. The provisions of Section 319, Code of Criminal Procedure, therefore, cannot be interpreted to impede the production of whatever evidence by the de novo trial against the additional accused persons. 19. At any rate, a look at the evidence of PW-4 Ajmer Singh, PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh, which has been relied upon by the trial Court, for exercising power under Section 319, Code of Criminal Procedure, shows that some part of the evidence is admissible while some part of the evidence is inadmissible. But then, as earlier stated, the same can be subject matter of objection in de novo trial. But on that ground, the interest of justice cannot be buried if really the additional accused persons are involved in the crime. As to the document, Exhibit DX, I find that Exhibit DX was part and parcel of the writ petition that was file....
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.... proved the meeting of mind of accused when he proved that mobile number 98144-00050 used by Gurdev Singh Chairman, mobile number 97803-14956, 99880-15339, 94654-14956 used by Harbans Singh accused, mobile number 95018-62815, 99150-82156 used by Subash chander accused, mobile number 70875-57854, 70875-91854 used by Manjeet Singh son of Boota Singh, mobile No. 81468-03304 used by Manjeet Singh son of Satnam Singh driver of Gurdev Singh, mobile No. 98141-93771 used by Gurdev Chand, mobile No. 95925-95237 used by Anil Kumar, mobile No. 98884-28723 used by Sonia, mobile No. 98783-66557 used by accused Nirmal Singh alias Nimma, mobile No. 99158-01906, 88726-80281 used by accused Shunty, mobile No. 98153-33333 used by Sukhpal Singh Khehra, mobile No. 94647-78839 used by accused HC Joga Singh PSO Sukhpal Singh Khehra, mobile No. 98786-23933 used by Manish PA of Sukhpal Singh Khehra. Learned Addl. P.P. further argued that accordingly, Interconnectivity of calls between the accused is proved on the file. Learned Addl. P.P. further argued that during investigation, it is transpired that kingpin behind whole of the sequence was Sukhpal Singh Khaira who through his personal security Officers....
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.... regarding the involvement of these accused in this crime. PW-4 S.P. Ajmer Singh specifically deposed that he mentioned these facts in his case diary in the Zimni No. 5 dated 09.03.2015 and he further brought these facts to the notice of Sh. Swapan Sharma, the then SSP, Fazilka. PW-4 S.P. Ajmer Singh also deposed that S.S.P. Fazilka further brought this to the notice of I.G. Bathinda Zone, who constituted a SIT. As discussed above, I am satisfied that there is every likelihood that accused Sukhpal Singh Khaira, Joga Singh PSO of Sukhpal Singh Khaira, Manish PA of Sukhpal Singh Khaira, Charanjit Kaur sister of accused Gurdev Singh and Major Singh Bajwa are likely to be convicted if allegations are not rebutted, further while filing the challan it was mentioned that after completing the investigation challan against these accused will be filed but the same is not filed by the police. So to my mind accused must be summoned to face the Trial and to rebut the allegations." 21. The view taken by the trial Court as above, as per the requirement of paragraphs 98 and 99 of the Constitution Bench judgment in the case of Hardeep Singh (supra), need not be substituted by me as there is no p....