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PETITIONER: ARVINDERVIR SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB & ANR.

DATE OF JUDGMENT:       05/08/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati, J.      Leave granted.      Heard learned counsel for the parties.      This appeal  is directed  against he judgment and order passed by  the High  Court of Punjab and Haryana in Criminal Misc. No.  21068 of  1997.  The  appellant  had  filed  that application under  Section  482  of  the  Code  of  Criminal Procedure, for  getting  quashed  the  criminal  proceedings initiated pursuant  to R.C.  No. 33  of 1993  dated  8.10.93 filed by the C.B.I and the report made under Section 173 Cr. p.c. to  the Designated  Court, on  the ground that the said complaint and  the report  do not disclose commission of any offence and  that initiation of the said proceedings amounts to an  abuse of  the process of the Court. The High Court by its order  dated 24.9.97  dismissed that  application on the ground that  the intention of the appellant was to delay the proceedings and  that  no  formal  complaint  under  Section 195(1) (b)  was required for issuing the process and that it will be  open  to  the  appellant  to  take  all  the  pleas including the  plea that the complaint does not disclose any offence, at the time of framing of the charge.      The proceedings  against the  appellant have come to be initiated under  the following  circumstances. On  8.2.93  a criminal offence  was registered  at  Ropar  Police  Station against one  IIarpreet Singh  alias Lucky, on the basis of a ’Ruqua’ Sent by the appellant who was S.H.O. of Ropar Police Station. it  was alleged that Harpreet Singh alias Lucky and one Surjeet  Singh had  abducted advocate Kulwant singh, his wife and  his child with an intention to murder them. During interrogation Harpreet  Singh was  stated to  have disclosed that he  and Surjeet  singh had already committed murders of those three  persons. On  the basis  of that information the police had  raided a  shop wherein  Surjit Singh  and  Rulda Singh were  present. Both  of them  consumed cynadinc before they  could   be   apprehended   by   the   police.   During investigation of  that offence,  on 12.2.93,  Harpreet Singh was stated  to have made an extra judicial confession before Avatar Singh,  who was  a Lambardar,  that he and co-accused Surjeet Singh  had abducted  those three  persons, committed

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their murder  and the  dead bodies  were thrown  in  Bhakara Canal near  Sirhind Floating  Restaurant and  that their car was also  thrown in that canal. Pursuant to that information the police  had recovered the car from the canal on 12.2.93. On 11.3.93 an application was given by harpreet Singh to the learned Sessions  Judge, stating  therein that  he wanted to make a  confession and  along with  that application  he had also submitted  a confessional  statement which he wanted to make. At  this stage  of the  investigation, the  Punjab and Haryana Bar  Association filed  a writ  petition in the High Court praying  that the  investigation which was made by the police in  the said  case registered  against Harpreet Singh was not  fair and  that an inquiry by C.B.I. may be ordered. That writ  petition was dismissed by the High Court. The Bar Association had  thereafter  filed  an  appeal  before  this Court. Allowing  that appeal  this Court directed the C.B.I. to investigate  the said case and also to submit a report to this Court. The C.B.I. registered the case as R.C. No. 33 of 1993 and  after investigation  submitted the final report to this  Court  on  7.3.1996  wherein  following  actions  were recommended:-           " (i)  Harpreet Singh  @ Lucky      s/o Gurmit Singh Saini, r/o Village      Bahadurpur, who is presently facing      trial in  case FIR  No. 10/93 of PS      Sadar,  Ropar   in  the  Designated      Court,  Nabha   has  been   falsely      implicated in the case.           (ii) SI  Avindervir Singh, ASI      Darsahan Singh,  Inspector  Balwant      Singh  and  DSP  Jaspal  Singh  are      prima  facie  responsible  for  the      false implication of Harpreet Singh      @ Lucky  in the  aforesaid case  an      are  liable   for  prosecution  for      offences under  Sections 193,  194,      211 and 218 IPC.           (iii) The  State Government of      Punjab  is   to  be  requested  for      taking suitable action against Shri      Sanjiv Gupta,  DIG,  Punjab  Police      for his lack of supervision."      In the final report the CBI had also suggested that the concerned Designated  Court be  directed to file a complaint as required  by Section  195 Cr.P.  C. for  prosecuting  the appellant and  A.S.I. Darshan Singh, Inspector Balwant Singh and D.S.P.  Jaspal Singh under Sections 193, 194,211 and 218 IPC. Allowing  the appeal  on 10.5.96,  this Court  directed that Harpreet Singh @ Lucky be released from jail forthwith, transferred the  trial from the Designated Court at Nabha to the Designated  Court at  Chandigarh and directed the C.B.I. to file  necessary challan  in accordance  with the  Code of Criminal Procedure,  before trial  court  at  Chandigarh.  A consequential order  was also passed by the Designated Court for the release of Harpreet Singh on 16.5.96.      In view  of the said directions a chargesheet was filed by the  C.B.I. in  the Designated  Court, Chandigarh,  which after receiving  papers from  the Designated  Court at Nabha issued process  pursuance to  which the  accused came  to be arrested and confined in custody.      On 2.9.96  the appellant  moved and  application to the Court at Chandigarh in R.C. No. 33 of 1993 praying that non- bailable warrant  issued against  him be  recalled  and  all subsequent proceedings initiated and process issued pursuant to the  chargesheet filed  by the C.B.I be rescinded in view

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of the  bar contained  in  Section  195(1(b))(i)  read  with Section 340  Cr. P.C. The contention of the appellant before the Court  was that  until  a  complaint  is  filed  by  the concerned Designated  Court,  after  holding  a  preliminary inquiry and  after recording a finding to the effect that an offence appears  to have been committed in or in relation to a proceedings  in the  court or,  as the  case  may  be,  in respect of  a document  produced or  given in  evidence in a proceeding in that court, the Designated Court at Chandigarh cannot take  cognizance of  the challan  filed by the C.B.I. The Designated  Court held  that in  view of  the directions given by  this Court  filing of a complaint by the concerned Designated  Court  was  not  necessary;  and  therefore,  it dismissed the  said application  by an  order dated 11.9.97. The appellant  thereafter moved  Crl. Misc No. 21069 of 1997 to the High Court but it was dismissed as stated above.      Aggrieved by  the said  orders passed by the Designated Court and  the High  Court the appellant filed special leave petition in  this Court  to grant  leave to  him to  file an appeal against  those order. That S.L.P. came up for hearing before a  Bench consisting of our learned Brothers Mukherjee and Thomas,  JJ. It  was felt  by that  Bench that  the view expressed by  it in  the State  of Punjab  vs. Raj Singh and another (1998  (1) SCALE  130) runs, to some extent, counter to the direction given by a two-Judge Bench of this Court in Punjab and  Haryana High  Court Bar Association vs. State of Punjab and  others (1996  (4) SCC  742) and,  therefore,  it passed the following order:-           " As the views expressed by us      in State  of Punjab  vs. Raj  Singh      and another  (1998  (1)  SCALE  130      runs, to  some extent,  counter  to      the direction  given by a two Judge      Bench in  Punjab and  Haryana  High      Court Bar  Association vs. State of      Punjab  and  other  (1996  (4)  SCC      742),   pursuant   to   which   the      impugned order  has  been  made  we      deem it  fit to refer this petition      to  a   larger  Bench.   Let   this      petition  be,   therefore,   placed      before Hon.  the Chief  Justice  of      India for necessary orders."      Consequently, the S.L.P. was placed before us and after hearing learned  counsel for the petitioner we granted leave as stated above.      The learned counsel for the appellant submitted that in view of  the bar  contained in Section 195(1)(b)(i) no court can take cognizance of any offence punishable under Sections 193-196, 199-200,  205-211 and  228  when  such  offence  is alleged to  have been  committed in, and in relation to, any proceeding in  any court  except on the complaint in writing of the  Court or  of some  Court  to  which  that  court  is subordinate. He  also drew  our attention  to Section 340 of the Criminal  Procedure Code  which provides  the  procedure required to  be followed  in cases mentioned in Section 195. He submitted  that what  the law  requires is that the court has to  first hold  a preliminary  inquiry,  then  record  a finding that  an offence  referred to  in clause (b) of sub- section (1) of Section 195 appears to have been committed in or in  relation to  a  proceeding  in  that  court;  make  a complaint  thereof   in  writing  and  then  sent  it  to  a Magistrate having  jurisdiction to try it. He submitted that in this  case the  Designated Court,  Nabha or its successor court has  not held  any inquiry  or recorded  a finding  or

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filed a  complaint  as  contemplated  by  Section  340  and, therefore, the Designated Court at Chandigarh could not have taken cognizance  of those  offences and  issued process and issued non-bailable warrant against the appellant.      The answer  to the question whether the direction given by this  Court in  the case of Punjab and Haryana High Court Bar Association  (supra)  runs  counter  to  the  provisions contained in  Section 195  and 340  of the  Code of Criminal Procedure, as  interpreted by this Court in Raj Singh’s case (supra), depends  upon how  the said  direction is  read and construed. If  the said  direction is read as a direction to the CBI  to file a chargesheet against the appellant and the other three  police officers for the offences under Sections 193, 194,  211  ad  218  IPC  in  the  Designated  Court  at Chandigarh and  a further  direction to the Designated Court to dispose of the trial in respect of those offences then it will have  to be  held that they are not consistent with the provision of  Sections 195  and 340  of  the  Code  and  run counter to  the view  expressed by this Court in Raj Singh’s case (supra).  It appears  that the  direction given by this Court was  so understood  by the CBI and therefore, it filed an additional  chargesheet in  the Designated  Court against the appellant  and other  three police officers for the said offences. The  Designated Court  also proceeded on the basis that the  direction was  to  try  those  accused  for  those offences and as the direction was given by this Court it was not necessary  for it  to follow  the procedure contained in Section 340  of the  Code. As  the matter had proceeded like that before  the Designated  Court, and the contentions were raised regarding  legality of  taking cognizance and issuing of process for the offences under Sections 193, 194, 211 and 218 IPC  the Bench  before which  the SLP was earlier listed for hearing  did not  examine what  really was the direction given by  this Court and rightly felt that the direction was not consistent  with the  provisions of Sections 194 and 340 as interpreted by that Bench in Raj Singh’s case. (supra).      On going through the decision of this Court in the case of Punjab  and Haryana High Court Bar Association (supra) we find that  this Court  had not  directed the  CBI to  file a challan  against   the  appellant  and  other  three  police officers for  the offences  under Sections 193, 194, 211 and 218 IPC  in the Designated Court, Chandigarh. This Court had also not  directed that Designated Court to proceed with the trial against  those police  officers for the said offences. The direction  given by this Court should have been read and understood in  the context  of the  facts of  that case.  an offence was registered as FIR No. 10/93 in respect of murder of Kulwant  Singh and his wife and their two year old child. After investigation  the  police  had  filed  a  chargesheet against Harpreet  Singh @  Lucky in  the  Designated  Court, Nabha. After  the trial  had commenced  in  that  Court  the Punjab and  Haryana High Court Bar Association had moved the High Court  with a petition to direct CBI to conduct further investigation as  it felt  that the police had filed a false case against Harpreet Singh. The High Court having dismissed that writ  petition an  appeal  was  filed  in  this  Court. Feeling the  necessity of  further investigation  by the CBI this  Court  passed  an  order  to  that  effect  and  after submission of  final report  by the  CBI  and  consideration thereof this  Court disposed of the appeal by giving certain directions. As  IIarpreet  Singh  was  found  to  have  been involved in the offence of murder falsely he was directed to be  acquitted   and  the  Government  was  directed  to  pay compensation to him. The Government was also directed to pay compensation to  the parents  of Kulwant  Singh. This  Court

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then ordered  transfer of the trial from Designated Court at Nabha to  the Designated  Court at  Chandigarh.  It  may  be recalled that  the trial which was pending in the Designated Court at Nabha was in respect of murder of Kulwant singh and his family  members. Even  though Harpreet Singh was ordered to be  acquitted this  Court did  not want  that trial to be treated as concluded and, therefore, it was transferred from the Designated  Court at  Nabha to  the Designated  Court at Chandigarh. The  reason why this Court did not want the said trial to  be treated  as over  and transferred  it from  the Designated  Court  at  Nabha  to  the  Designated  Court  at Chandigarh is to be found in the last part of Paragraph 1 of the judgment.  Even though  the CBI  had reported  that  the investigation made by it did not reveal any evidence to show who had  caused the  murder of  Kulwant singh and his family members and that there was no evidence against the suspected police officers  to connect them with kidnapping and killing of Kulwant Singh and his family members, this Court took the view that  whether  the  circumstances  were  sufficient  to prosecute them or not is a matter for the Court to consider. This Court then observed that it would be open to the Punjab and Haryana High Court Bar Association and the Prosecutor to argue before  the trial court that the material collected by the CBI  shows that  the police  officers  are  prima  facie responsible for  the abduction  and murder  of Kulwant Singh and his  family and  are liable for prosecution for offences under the  relevant provisions  of Indian  Penal Code. Since this Court  did not accept the suggestion of the CBI  not to proceed against  the police  officers for  the abduction and murder of  Kulwant Singh  and his  family members it ordered transfer of  the trial from the Designated Court at nabha to the Designated  Court at  Chandigarh and directed the CBI to file the necessary challan before that Court. obviously, the challan which  was directed  to be  filed against the police officers was  in the  trial which  was transferred  from the Designated  Court  at  Nabha  to  the  Designated  Court  at Chandigarh and  that trial  was for the offence of abduction and murder  of Kulwant  Singh and  his family  members.  The direction was  not to  file a  challan against  those police officers for  the offences  punishable under  Sections  193, 194, 211  and 218  IPC. It  was in  respect of trial for the offence of  abduction and  murder that  the State Government was directed  to grant  sanction under  Section 197  of  the Criminal Procedure  Code. The  trial court  was directed  to conclude that trial expeditiously. What we have stated above becomes clear  if the  observations made in the last part of Paragraph 1  of the  judgment are  read with  the directions given in Paragraph 4 of that judgment.      It was  the CBI  which misunderstood  the direction and instead of  filing a chargesheet against the police officers for the offence of abduction and murder of Kulwant Singh and his family  members filed  it for  the  offences  punishable under Sections  193, 194,  211 and  218 IPC. Obviously, this court  was  not  unaware  of  the  provisions  contained  in Sections 195  and 340  Cr. PC and, therefore, could not have directed the  CBI to  file a  challan for the offences under Sections 193,  194, 211  and 218 IPC in the Designated Court at Chandigarh and directed that court to try those offences.      It  was,  therefore,  not  proper  and  legal  for  the Designated Court  at Chandigarh  to take  cognizance of  the offences under  Sections 193,  194, 211  and 218  IPC and to proceed  with  the  trial  of  those  offences  against  the appellant and  the other three police officers. However, the process issued by the Designated Court against them need not be set  aside as  inquiry contemplated  by Section 340(I) of

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the Code  has already  been held by this Court and a finding has been  recorded that  they appear to have committed these offences in relations to the proceeding which was pending in the Designated Court at Nabha. In view of sub-section (2) of Section 340  it was competent for this Court to exercise the power of  the trial  court under Section 340(1)  and hold an inquiry. As  the appellant  and the  three  police  officers prima facie  appear to  have committed  the said offences it was open to the Designated court at Chandigarh, now that the case has  been transferred  to that  court, to  have  issued process  under   clause  (d)  to  take  security  for  their appearance before  the Magistrate having jurisdiction to try those offences.      We, therefore,  partly allow  this  appeal,  quash  the taking o  cognizance by the Designated Court of the offences under Sections  193, 194,  211 and  218 IPC  and direct that court to  make a complaint in writing to a magistrate having jurisdiction in  respect of  those offences. The CBI is also directed to file an additional challan against the appellant and the  other three  police officers  as directed  by  this Court by its judgment in the case of Punjab and Haryana High Court Bar  Association (supra). The State government is also directed to comply with the direction given in that case and as clarified  by us. The Designated Court at Chandigarh will hen complete the trial as expeditiously as possible. IN THE MATTER OF