Gurtej Singh vs State of Punjab

T.P.S. Mann, J.—By this common judgment, 1 propose to dispose of the present revision as well as Criminal Misc. No. 13369-M of 2006,

as both the cases arise out of the same FIR and are based on almost same facts and orders.

The petitioner has filed the present revision against the order dated 14.02.2006 passed by Special Judge, Sangrur vide which the petitioner

along with two others was ordered to be charged for offences under Sections 302, 201, 506, 34 IPC and u/s 3(i)(x) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

FIR was registered on the basis of a statement made by Sarabjit Kaur, wherein she stated that that her husband Nachhattar Singh used to work

at the brick kiln of Shivji Ram. On 05,06.2004. as usual, said Nachhattar Singh went to the brick kiln for doing work. At about 9.00 P.M. Sarabjit

Kaur learnt that her husband Nachhattar Singh was being beaten by Bikar Singh, Major Singh and Gurtej Singh at the Bus Stand of the village.

She along with her brother-in-law reached there and saw that the aforementioned accused were beating her husband Nachhattar Singh near the

benches lying there. They were giving kick and fist blows. Injuries were also given on his private parts. On the intervention of Sarabjit Kaur and

her brother-in-law, Nachhattar Singh was rescued from the accused, who while leaving extended a threat to them that in case he was got admitted

in any hospital or the police was informed, they would also receive the same treatment as meted out to Nachhattar Singh. Out of fear, Sarabjit

Kaur brought her husband Nachhattar Singh to the house, where he died the same night at about 3.00 a.m. When the accused learnt about the

death of Nachhattar Singh, they again came to her house in the morning and extended another threat that no information be given to the police

otherwise she would be treated similarly as her husband. Feeling threatened, she had no other option but to cremate her husband in the morning.

Finally, she took up courage as her relatives had come in the meantime and informed the police. On the basis of her statement FIR No. 70 dated

6.6.2004 was registered at Police Station Dhanaula under Sections 302, 201, 506, 34 IPC.

After the completion of the investigation, final report u/s 173 Cr.P.C. was presented by the police on 21.06.2004 against the three accused,

including the present petitioner Gurtej Singh. After the commitment of the case to the Court of Sessions, charges were framed against the accused

for the aforementioned offences and the trial of the case began.

On 01.04.2005, the police prepared supplementary challan against the three accused under Sections 304, 201, 506, 341 PC as the relatives of

the accused had submitted an application to Punjab State Human Rights Commission for the investigation of the case and. accordingly,

Superintendent of Police (Detective), Barnala conducted further investigation, during which it revealed that there was no enmity of deceased

Nachhattar Singh with the accused and that no weapon was used at the time of the occurrence. Further that it was a sudden dispute. The said

supplementary challan was, accordingly, presented in the concerned Court.

Another supplementary challan was also submitted by the police on 04.07.2005 against the accused under Sections 302, 201, 506, 34 IPC and

Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''the Act'').

The supplementary challan submitted by the police on 04.07.2005 was duly entertained by the trial Court on 31.01.2006 and the accused were

ordered to be charged for offence u/s 3(i)(x) of the Act besides other offences of IPC for which the accused already stood charged.

On 14.02.2006, it came to the notice of the trial Court that the supplementary challan had also been presented by the Investigating Agency on

02.04.2005 against the accused u/s 304 I PC instead of Section 302 IPC along with other sections. The trial Court vide order dated 14.02.2006

held that the offence was prima facie disclosed u/s 302 IPC and not u/s 304 IPC as the accused were knowing that the injury will cause death in all

probability or that the bodily injury caused was likely to cause death as it was so imminently dangerous., Accordingly, prayer of the prosecution for

trying the accused u/s 304 IPC was rejected. The accused were ordered to be charge-sheeted for offences under Sections 302, 201, 506, 341

PC and Section 3(i)(x) of the Act.

The present revision has been filed by the petitioner being aggrieved by the fact that the accused should have been tried under Sections 304,

201, 506, 34 IPC instead of under Sections 302, 201, 506,34 IPC. In the connected petition i.e. Criminal Misc. No. 13369-M of 2006. the

petitioner has prayed for setting aside of the order vide which the accused have been charged for offence u/s 3(i)(x) of the Act. The present

revision and the aforementioned petition are being disposed of by this common judgment.

Arguments have been heard and the contents of the revision and the petition, besides reply to the petition have been perused.

The police had already presented the challan against the accused under Sections 302, 201, 506, 34 IPC in relation to the murder of

Nachhattar Singh, husband of Sarabjit Kaur-complainant. All the facts were available to the police during the investigation from which it could be

found that the accused were required to be challaned and thereafter charged for the aforementioned offences. While taking up the further

investigation tinder Section 178(8) C.P.C. on account of the close relatives of the accused representing to the Punjab Human Rights Commission,

the police did not care to seek any prior permission of the trial Court. During the subsequent investigation, conducted by the police on its own, the

police tried to dilute the offence u/s 302 IPC to one u/s 304 IPC. Though there is no statutory requirement for the police to obtain permission from

the Court concerned to further investigate into the matter yet the propriety demanded that it should have obtained permission to do so.

In the present case, charges were already framed against the accused under Sections 302, 201, 506, 34 IPC on 10.08.2004. The

supplementary challan was presented on 01.04.2005 vide which the offence u/s 302 IPC was sought to be diluted by the Investigating Agency. In

Ram Lal Narang v. State (Delhi Administration), 1979 SCC 479, the Hon''ble Apex Court considered the powers of the police u/s 173(8) C.P.C.

regarding further investigation by the police after the submission of charge-sheet and taking of cognizance by the Magistrate. It held that the right of

the police to further investigate was not exhausted after the cognizance by the Magistrate but the police could exercise such right as often as

necessary when fresh investigation came to light. However, it was expected of the police to seek formal permission from the concerned Court for

further investigation as due regard and respect for the Court. The relevant portion of the judgment is reproduced herein below :-

As observed by us earlier, there was no provision in the Cr.P.C. 1898 which, expressly or by necessary implication, barred the right of the police

to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the

power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and

preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken

cognizance of the offence upon a police report submitted u/s 173 of the 1898 Code, the right of the police to further investigate was not exhausted

and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further

investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.

The aforementioned view was reiterated by the Hon''ble Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Others, 2004 ACJ

218 (S.C.) : 2004 (2) CCC 736 (S.C.) : 2004 (2) RCR 463 (SC).

In the present case there is no material available on the file from which it could be shown that the police sought the permission of the Court to

conduct further investigation. The cognizance had already been taken and charge u/s 302 IPC besides other offences already stood framed against

the accused. During the subsequent investigation, the police came to the conclusion that offence was not made out u/s 302 IPC but instead it was

u/s 304 IPC, as there was no previous enmity between the parties and that it was a sudden occurrence. These conclusions arrived at by the police

were not sufficient to hold that no offence u/s 302 IPC was made out. It was for the trial Court to consider all the aspects of the case as a whole

and conclude on the basis of the evidence available on the file as to whether the offence made out was u/s 302 IPC or only u/s 304 IPC.

Moreover, the further investigation was not conducted after taking formal permission from the concerned Court. As such the police was not

competent to present the supplementary challan so as to proceed against the accused as if they were to be charged only u/s 304 IPC instead of

Section 302 IPC. The trial Court was, thus, justified in rejecting the prayer of the prosecution to charge the accused u/s 304 IPC.

Coming to the other supplementary challan presented by police, it may be seen that statements of the witnesses were recorded u/s 161 Cr.

P.C. wherein they mentioned about the allegations against the accused, which prima facie made them liable for offence u/s 3(i)(x) of the Act.

Material collected by the prosecution in holding the accused responsible for offence u/s 3(i)(x) of the Act did not dilute the main allegation of

the prosecution against the accused. To that extent the police proceeded on the right lines to collect sufficient material against the accused and then

submit the supplementary'' challan, making them liable to be tried u/s 3(i)(x) of the Act. The trial Court, vide order dated 31.01.2006 was justified

in finding the accused prima facie liable u/s 3(i)(x) of the Act and directing them to be charged for the said offence. Ultimately on 14.02.2006, the

trial Court finally held that the accused were liable to be charged under Sections 302.201, 506, 34 IPC and Section 3(i)(x)of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Accordingly, I do not find any merit in the present revision as well as Crl. Misc. No. 13369-M of 2006. The same are consequently,

dismissed.