Baljit Singh vs Union Territory, Chandigarh

K.S. Kumaran, J.

The criminal revision is directed against the order of the learned Additional Sessions Judge, Chandigarh dated 4.7.1997 framing charges against petitioners (1) Baljit Singh, (2) Rajwinder Singh, and (3) Gurdas Chand under Sections 392, 397 read with Section 34 and under Section 411 IPC and a charge under Section 25 of the Arms Act against the petitioner Rajwinder Singh. Criminal Miscellanenous No. 16907M of 1997 has been filed by the very same petitioners for being released on bail with reference to the same occurrence. Therefore, I am disposing of the criminal revision petition and the application for bail by this common order.

FIR No. 344 dated 4.11.1994 under Sections 392, 397, 411, 452 and 34 IPC and under Section 25/27 of the Arms Act was registered at Police Station East, Chandigarh on the statement of Ashok Kumar made on 4.11.1994. The case of the prosecution is that on the night intervening 3.11.1994 and 4.11.1994, Ashok Kumar, a resident of Chandigarh, members of his family and his servant were bursting crackers on the road in front of their house and at about 11.20 p.m., they went inside the house and were at the dining table to take dinner. Three young persons, two of them being Sikhs armed with pistols, while the remaining one, being cleanshaven, armed with knife, came into the house, bolted the door from inside, fired a shot, and snapped the telephone wire. They demanded they should be given Rs. 5 lacs on the threat that the son of Ashok Kumar would be kidnapped otherwise, and when Ashok Kumar pleaded inability to pay that much of money, all the three of them demanded to hand over the ornaments and other valuable articles. According to the prosecution, Ashok Kumar''s wifeUsha Rani handed over the ornaments including the bangles, locket, kara and similarly the other persons also handed over their ornaments to them. They also opened the almirah and removed certain articles. One of the Sikhs fired the pistol, which hit Ashok Kumar, and threatened him not to inform anybody, and then all of them ran away. Ashok Kumar was taken to the P.G.I. Hospital and was given medical aid. It is on this basis the above said F.I.R. was registered. Later, on 1.10.1996, accusedpetitionerBaljit Singh was apprehended and in pursuance of the disclosure statement made by him, certain ornaments were recovered which were identified by the complainant Ashok Kumar as the jewellery which were taken away from his house on the date of occurrence. PetitioneraccusedBaljit Singh made a further disclosure statements on 8.10.1996 which led to the recovery of certain items which were concerned in other cases. Similarly, Gurdas Chand who was arrested on 21.10.1996, also made a disclosure statement leading to the recovery of certain other items which were concerned in another case. PetitionerRajwinder Singh, who was arrested on 21.10.1996, also led to the recovery of certain items concerned in some other case in pursuance of his disclosure statement. On 22.10.1996, he made another disclosure leading to the recovery of certain articles concerned in this case and which were identified by Ashok Kumar as the items of jewellery taken away from his house on the date of the occurrence. According to the prosecution, two bullets removed from the body of injured Ashok Kumar were found to have been fired from the same revolver vide report of the Central Forensic Science Laboratory dated 30.12.1994. These bullets were received by the Forensic Science Laboratory on 16.12.1994.

The Forensic Science Laboratory had also examined a .38 calibre revolver bearing No. 629006 and found it to be in working order vide its report dated 10.2.1997. This revolver was received in the laboratory on 2.12.1996. By the report dated 23.2.1997, the Central Forensic Science Laboratory opined that the two .38 calibre bullets referred to above were fired from this revolver No. 629006.

Ajaib Singh Head Constable made a statement under Section 161 Cr.P.C. that he was posted as Assistant Kot Incharge at Headquarters C.I.D. Punjab Secretariat and that on 28.11.1996. Sub InspectorPartap Singh, C.I.A. Special Cell came to him and showed the order dated 8.11.1996 as per which he handed over revolver No. V 629006/.38 calibre to him. He also stated that this revolver was issued to ConstableBaljit Singh from 17.2.1989 to 28.2.1995. The said Head ConstableAjaib Singh made a supplementary statement under Section 161 Cr.P.C. on 21.12.1996 that ConstableBaljit Singh was also issued, along with revolver, 15 cartridges and that he had deposited the revolver along with 15 cartridges in perfect condition with the Kot on 28.2.1995.

Before the learned Additional Sessions Judge the learned counsel for the petitionersaccused contended that there had been no identification parade and, therefore, the identification made before the police is not admissible in evidence. In this regard, he also relied upon certain decisions which the learned Additional Sessions Judge has distinguished on the ground that those were cases decided after the conclusion of the trial and, therefore, cannot have any application to the present case which is only at the stage of framing a charge. Therefore, he did not accept the contention of the petitionersaccused that the petitionersaccused could if at all, be charged under section 411 I.P.C. The learned Additional Sessions Judge held that in view of the evidence set forth and the report of the forensic expert connecting the weapon with the bullet that had pierced into the body of the complainant, there were sufficient grounds to proceed against all the petitionersaccused for offences under Sections 392, 397 read with Section 34 IPC as well as Section 411 IPC. He also held that there were sufficient grounds to proceed against the petitioneraccusedRajwinder Singh for the commission of the offence under Section 25 of the Arms Act. He accordingly framed the charges. Therefore, the criminal revision has been filed by the petitionersaccused.

I have heard the counsel for both the sides.

I will first take up the question as to whether the charge under Sections 392 and 397 I.P.C. could and should not have been framed against the petitioners. The first contention of the learned counsel for the petitioners accused is that there was no identification parade and it is not as if the complainant knew the petitionersaccused already and, therefore, there is not evidence to connect the petitionersaccused with the crime and as such the accused could not be charged under Sections 392, 397 and 34 IPC. He also contended that if at all, there could be a charge under Section 411 I.P.C. He also contended that Head ConstableAjaib Singh has also not been cited as a witness (which is denied by the State). Therefore, the learned counsel for the petitioners contended that the alleged identification of the petitioners accused by compainantAshok Kumar at the police station being inadmissible, the charge framed under sections 392/397 and 34 IPC should be set aside. But this contention of the learned counsel for the petitioners cannot be accepted because at the stage of framing the charge, the Court is not considering the question whether there is sufficient evidence to convict the accused, but is considering only the question whether there are prima facie grounds for proceeding against the accused under these sections. Therefore, at this stage of framing the charge, the Court need not go into these details. Therefore, this contention of the learned counsel for the petitionersaccused cannot be accepted.

The other contention of the learned counsel for the petitioners is that bullets that were taken out from the body of the injured complainant on 4.11.1994 and were with the police, and the revolver was recovered, as is seen from the statement of Head ConstableAjaib Singh, on 28.11.1996, whereas the bullet and the revolver were received by the Forensic Science Laboratory on 27.2.1997, as is seen from the report of the Central Forensic Science Laboratory dated 28.2.1997. But we find from the previous report dated 30.12.1994 of the said laboratory that the bullets recovered from the body of the injured were received in the Laboratory on 16.12.1994 itself and the Laboratory opined that both these bullets were fired from the same revolver of. 38 calibre. It is later on that the revolver in question was also tested alongwith the bullets and the Central Forensic Science Laboratory vide its report dated 28.2.1997, opined that these bullets were fired from this revolver No. 629006 of .38 calibre and not through another fire arm. The learned counsel for the petitionersaccused contended that while the former report dated 30.12.1994 shows that the two bullets along with a shirt were received by the Laboratory on 16.12.1994, the report dated 28.2.1997 shows that these bullets and the revolver were received on 27.2.1997 but the prosecution has not accounted as to where these bullets were recovered in the meantime. But this again is a matter which is not to be taken into account at the time of framing of charge. These are minute details which will have to be taken into consideration at the time of the trial and the prosecution will have to show as to where the bullets were after the first report. But the point is that in the opinion of the Laboratory, these bulles taken from the body of the injuredcomplainantAshok Kumar were fired from this revolver which was issued to accusedBaljit Singh. At this stage, it is necessary to point out that all the petionersaccused are police constables and the statement of Head ConstableAjaib Singh made under Section 161 Cr.P.C. shows that this revolver was issued to petitioneraccusedBaljit Singh in his capacity as a constable during the period from 17.2.1989 to 28.2.1995. Therefore, prima facie it is evident that he was in possession of this revolver on the date of the occurrence which took place on the night between 3.11.1994 and 4.11.1994. The learned counsel for the petitioners also contended that the statement of Head ConstableAjaib Singh dated 21.12.1996 shows that this revolver along with 15 cartridges which were issued to petitionerBaljit Singh, were redeposited by him with the Kot on 28.2.1995 in a perfect condition. The learned counsel for the petitioners, therefore, contended that when all the cartridges have been redeposited, it cannot be stated that this revolver issued to Baljit Singh was used. But one cannot lose sight of the fact that bullets other than those that were issued to Baljit Singh by the Police Department could have been used. This apart, report of the Forensic Science Laboratory shows that the bullets recovered from the body of injuredcomplainantAshok Kumar match with the revolver issued to petitioneraccusedBaljit Singh. Therefore, this contention of the learned counsel for the petitionersaccused will not help the accused.

Another contention put forward by the learned counsel for the petitioners is that the recoveries allegedly made from the accused were in October, 1996, i.e long after the alleged date of occurrence and, therefore, from the mere recovery of these articles, it cannot be presumed that the petitioners accused had committed the offences under Sections 392 and 397 IPC. But he has overlooked the fact that this is not the only factor on which the prosecution relies. I have already pointed out about the revolver and the bullets matching with each other. Therefore, in these circumstances, there are grounds for coming to a prima facie conclusion to frame charges against the accused under Section 392 read with Section 397 IPC. So far as the nonholding of identification parade is concerned, it is again a matter which need not be examined minutely at the time of framing the charge. At the time of framing of the charge, even suspicion based upon certain materials and circumstances would be sufficient to frame charge. Therefore, taking into consideration all these aspects, I am of the view that there is no infirmity or illegality in the order of the learned Additional Sessions Judge framing charge under Sections 392/397 and 34 IPC. But of course, there is also a charge under Section 411 I.P.C. and if the petitioners are guilty of having committed the offence under Section 392 IPC, then they cannot be guilty of the offence under Section 411 IPC for having been in possession of stolen property. But even without this charge under Section 411 IPC specifically, the Court would always be entitled to convict a person for a lesser offence if a charge for a greater offence under Section 392 IPC is not made out. In the circumstances of the case, it can be considered that the charge under Section 411 IPC has been framed as an alternative charge by way of an abundant caution only. Therefore, taking into consideration all these aspects, I am of the view that this revision petition has to be dismissed.

The next question is whether the petitioners are entitled to the concession of bail. As pointed out already, the petitioners are police constables and the materials placed on record show that they were involved in several cases of robbery. Their earlier petition for bail was also dismissed and there is also no new ground for granting them bail. Petitioners, being police constables and having been charged with having committed robbery on various occasions, cannot be extended this concession of bail. Taking advantage of the fact that they were police constables, it will be easy for them to cause damage to the prosecution case, if they are released on bail. However, the learned Additional Sessions Judge is directed to expedite the disposal of this case against the petitioners.

In view of my discussions made above, the revision petition i.e. Criminal Miscellaneous No. 706 of 1997 and the bail application i.e. Criminal Miscellaneous No. 16907N of 1997 are dismissed but with a direction to the concerned Additional Sessions Judge to expedite the disposal of this case against the petitioners.