Gurinderjit Singh vs State of Punjab

G.S. Chahal, J.

Gurinderjit Singh and others in this petition under Section 482 Cr.P.C. seek quashing of FIR No. 7 dated 4.4.1993 for offence under Sections 336/506 IPC registered at P.S. Hargobindpur alongwith all subsequent proceedings.

The impugned FIR was registered on a writing given by Balbir Singh son of Sohan Singh respondent No. 2 to the following effect :

"Sir, it is submitted that to night at about 9 o'' clock Gurcharan Singh son of Bahadur Singh and his sons Surinder Singh and Harinder Singh and his nephew Satinder Singh s/o Gurdeep Singh and Lakhwinder and Sukhwinder Singh sons of Balkar Singh and alongwith other persons kept abusing and breaking our front door in the street. Then after abusing for some time then Gurcharan Singh opened fire and said that we will teach you a lesson for opposing us in election. I also fired a shot in my selfdefence. Then they dispersed. My brother was not at home. I was alone, he had gone away with Sarpanch Harbans Singh. Kindly do justice with us. They will again harm us. We have personal apprehensions. They are always prepared to fight and they are vocal".

Balbir Singh has since filed a complaint for offences under Section 307, 326, 506, 148 and 149 IPC. The version as to the occurrence is now given in the following terms.

"That on 28.2.1993 at about 9.30 p.m. the complainant was present in his house and all the accused namely Gurcharan Singh, Gurinder Singh, Harinder Singh, Satinder Singh, Lakhwinder Singh and Sukhwinder Singh alongwith others came in front of the house of the complainant after forming an unlawful assembly and started abusing filthily by naming the complainant and other members of his family and also started breaking the door. On hearing the rules, the complainant went up the roof of his house in the Chobara. At that time Gurcharan Singh was armed with Pistol, Harinder Singh was armed with 315 Rifle, Satinder Singh was also armed with Kirpan. Lakhwinder Singh and Sukhwinder Singh were armed with Kulharies. On seeing the complainant, Satinder Singh and Gurinder Singh raised Lalkaras that complainant be done to death for supporting Harbhajan Singh against him. At this Gurcharan Singh fired a shot towards the complainant with the intention and knowledge to kill him but the complainant got aside and shot did not hit him luckily. Gurcharan Singh accused again fired second shot from his 12 bore Gun which also did not hit the complainant. The complainant raised Raula. The occurrence was witnessed by Kashmir Singh and Gurnam Singh P.Ws and on their request all the accused ran away with their respective weapons".

One another fact which has to be borne in mind is that as stated in Ex. P1, it was on a telephonic call received from Gurcharan Singhpetitioner that the police had gone to the spot. Gurcharan Singh had informed the Police that Harbhajan Singh and his partymen were proceeding towards Gurcharan Singh''s house and were firing and it was possible that they might harm them. The counsel has placed on record a photostat of the site plan prepared by the police during investigation in the case. The house of Balkar Singh is situated in front of the house of Sardul Singh, in which the presence of Balbir Singh is shown. Statements of Kashmir Singh and Gurnam Singh have been recorded wherein it is stated that Gurcharan Singh and others had emerged out of the house of Balkar Singh and hurled abuses but no one from the other side said anything and then Gurcharan Singh fired from his licensed gun and Balbir Singh had then returned the fire.

There is force in the contention of learned counsel that as per the evidence collected by the police it was only Gurcharan Singh who had fired and this firing had been done after all the petitioners had emerged from the house of Balkar Singh. The complainantBalkbir Singh in place of corroborating what he stated to the police has now put up a version at sufficient variance from the version originally stated. The learned counsel has fairly conceded that if any criminal offence is to be made out on the basis of the FIR, it is only Gurcharan Singh who not only hurled abuses but also fired which will in all probability prima facie make out an offence under Sections 336 and 506 IPC. Qua the others there is no specific part attributed if they were in the company of Gurcharan Singh when they emerged out of the house of Balkar Singh and Gurcharan Singh hurled abuses and fired. They cannot be said to have committed an offence. The evidence collected by the prosecution also does not show any act which may make out a cognizable offence against the petitioners other than Gurcharan Singh. For a somewhat similar offence, which is rather shown to be grevious than the offence charged Balbir Singh had already filed a compliant wherein the Court shall record the necessary findings. I accept the arguments of learned counsel that in this situation as stated above, then contention of the prosecution of the petitioners other than Gurcharan Singh on the basis of the impugned FIR shall be an abuse of the process of Court.

The second proposition that has been urged by the learned counsel for the petitioners is that the court was not justified in clubbing the complaint filed by Balbir Singh with the police challan put in Court on the basis of impugned FIR. In Harjinder Singh v. State of Punjab and others, AIR 1985 SC 404 their Lordships held that it is not permissible for the Court under Section 223 of the Code of club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and the complaint case are materially different, contradictory and mutually exclusive. The principle contained in this authority is attracted to the facts of this case.

I, thus, quash the order of clubbing of the two cases. However, both the cases shall be heard by the same Court and tried separately and will be decided simultaneously. The case FIR No. 7 against petitioners No. 1, 2 and 4 to 6 is hereby quashed. This finding recorded or any observations made in this order shall not amount to comments on the merits of the complaint filed by Balbir Singh even qua petitioners No. 1, 2 and 4 to 6.