Smt. Sarswati vs The State of Punjab and other

D.S. Tewatia, J.—This revision petition is directed against the order dated November 20, 1979, of the learned Sessions Judge, Ludhiana, whereby he dismissed the application u/s 216, of the Code of Criminal Procedure requiring the court to frame a charge u/s 302 against Devinder Singh (absconder) accused and also u/s 302/34 of the Indian Penal Code against Mohinder Singh and Devinder Singh, filed by Smt. Saraswati widow of Kanwar Radar Singh, who had been murdered in the occurrence that took place on April 17, 1979. regarding which F.I.R. No 34 had been lodged by Mr. Ujjal Singh Sahni, Advocate, in police station Samrala on the same date i.e. April 17, 1979 According to the learned trial court, two questions had to be satisfactorily answered in favour of the applicant before the prayer for adding of the charges was acceded to. These questions were-

(i) Whether Sarvshri J. R, Verma and N.C. Tandon, Advocates, who are counsel for Smt. Saraswati, have the locus standi to file this application ?

(ii) Whether a charge under Ss. 302/34, I. P. C. should be added ?

The learned trial court, while dealing with the first question held that the application in question had been put in on behalf of Smt. Saraswati, who is only a prosecution witness and not the complainant. According to the learned trial court, the first informant who lodged the F.I.R was the complainant. It could not held, in view of a decision of this Court in Randhir Singh v. Kala Singh, (1979) 81 P.L.R. 286 : (1979) 6 Cr. L. T. 98 and that a private counsel appearing on behalf of the complainant was not competent to move an application, but proceeded to add that in the present ease, the counsel who moved the application, could not be considered to be a counsel for the complainant as Smt. Saraswati was merely a prosecution witness and not a complainant. The trial court, however, does not enlighten us as to who in its view was the complainant. Perhaps ft thought that the first informant was the compiainant. In my opinion, the trial court was not at ell right in not treating Smt. Saraswati as the complainant. After all, the person murdered was her husband. She is the aggrieved party and she is the true complainant. The person who lodges the First Information Report nay or may not be the complainant. In the present case, Mr. Sahni was merely a first informer and not a complainant. It is also not nceessary that the Public Prosecutor should have lent his weight and support to the application moved by the counsel of Smt. Saraswati. The Lahore High Court, the predecessor of this Court, as far bach as 1929, held in AIR 1929 127 (Lahore) ) that an application moved for framing a new charge or a modified charge need not necesserlly be made by the Public Prosecutor or with his consent.

While dealing with the second question, the learned Sessions Judge observed that the charge u/s 302 read with Section 34 of the Indian Penal Code could be framed only on the basis of the material available on the record when the charge was to be framed in the first Instance and that the exercise of power u/s 216 of the Code of Criminal Procedure, is subject to the said avir riding constraint. The learned Sessions Judge further observed that the counsel for the applicant wanted him to take into account the material brought on the record as a result of the prosecution evidence, after the Initial charge had been framed, which was In the following words:

... It is not disputed by the counsel for the Petitioner, that, the charge was correctly framed on the material as it existed on the record when the accused was produced In this Court. Their contention, however, is that during the trial of the ease, it has come on the record in the statement of Shri Ujjal Singh Sahni, Advocate, that Mohinder Singh accused, had taken away the assailant on his motor cycle, after the offence had been committed. It has, therefore, been urged that atleast against Mohinder Singh, a charge under S 302/34 IPC, should be added." 4 The trial court was net right in observing that material was not available on the record, when could justify the framing of a murder charge against Dewinder Singh or an additional charge under Sections 302/34 of the Indian Penal Code, against Dewinder Singh and Mohinder Singh.

In the First Information Report, it has been mentioned that the person who committed the murder was a Sikh gentleman with black turban. He fired two shots. The first shot broke down the wind screen, while the second shot was filed at a point blank range. Then he hurried to a motor-cycle, which was in start condition, and sat on the pillion seat, and another Sikh gentleman who was then holding motor cycle drove it towdrds Chandigarh. There is the statement of Smt. Saraswati u/s 161 of the Cede of Criminal Procedure, who as a result of pre-arrangement with Rudar Singh deceased, was waiting on the road side to board his car at village Hedon, which village is located on Samrala-Chandigarh road, at a distance of about 7 KMs from Samrala. She saw Mohinder Singh driving a black motorcycle with another person on the phillion seat at about 4:00 P M. The police investigation established that the person who had fired the shots was one Dewinder Singh and that there was a conspiracy of Mohinder Singh and four other, excluding Dewinder Singh, to commit the murder of Rudar Singh and for that purpose to hire Dewinder Singh. This material on the record was enough for the framing of a charge against Dewinder Singh u/s 302 of the Indian Penal Code and against Dewinder Singh and Mohinder Singh under (Sections 302/34 of the Indian Penal Code. The so called improvement which the prosecution witnesses are said to have made at the trial was nothing more then this that Mr. Sahni in the court pointed out towards Mohinder Singh that he was the person who had driven the motor-cycle after the person who actually murdered Rudar Singh had sat on the pillion seat thereof.

Mr. Sayal appearing for the State, has urged this Court that the revision petition be accepted and the trial court be directed to frame the additional charges.

It appears that the trial court was not aware of Section 299 of the Code of Criminal Procedure, which authorises the court to receive evidence against an absconder, which can be used against him if he is apprehended and brought to trial in the event of person who had deposed is not available to give evidence at the later trial for one reason or the other, as mentioned in the said section.

For the reasons aforementioned, this revision petition is allowed and the order of the learned Sessions Judge under challenge herein is set aside. The learned trial court is directed to frame the two aforementioned charges and proceed in accordance with law.