Om Parkash v. Balbir Kumar Bawa, IPS, at present posted as DIG Vigilance, Punjab

Judgment

3. Balbir Kumar Bawa, IPS, at present posted as DIG Vigilance, Punjab, r/o 2871-B, Sector 42-C, Chandigarh. Raj Kumar, Constable No. 984, at present posted as Gunman to Sita Ram, MLA, Dina Nagar, Distt. Gurdaspur. Constable Joga Singh, posted as Gunman to Mahal Singh, DSP, Sangrur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.D.S. Hooda, Advocate, for the revision-petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1.

Mr. Sapan Dhir, Advocate, and Mr. Shakti Paul Sharma, Advocate, for respondents No. 2 and 3. SHAM SUNDER, J. * * * * This revision-petition is directed against the judgement Criminal Revision No. 1061 of 2006 2 dated 31.10.05, rendered by the Court of Additional Sessions Judge, Gurdaspur, vide which, it accepted the revision-petition, against the order dated 10.06.05, rendered by the Court of Sub Divisional Judicial Magistrate, Pathankot, dismissing the application of the petitioners/accused for discharge.

2. The facts, in brief, are that, on 09.08.93, Om Parkash, revision-petitioner, and, Daljit Saini, were picked up by the accused/respondents, and kept in their illegal custody, where they were tortured by them. It was stated that Tirath Ram Saini father of Daljit Saini, knocked the door of the Apex Court, through a Writ Petition of Heabeas Corpus, praying that both Om Parkash and Daljit Saini, had been kept in illegal custody, by the respondents, and they be got freed. It was further stated that, on 04.10.93, Daljit Saini, appeared, in the Court, and stated that he alongwith Om Parkash, had been released, on

02.10.03, by the respondents, at Pathankot. It was further stated that, the Apex Court, vide order dated 18.01.96, directed the State of Punjab, to pay a compensation of Rs. 10,000/- each to the detenues. It was further directed by the Apex Court, that both Daljit Saini and Om Parkash, would not be precluded, from pursing the remedy civil as well as criminal, available to them, in respect of their wrongful confinement. Thereafter, Daljit Saini, filed a criminal complaint, under Sections 323, 324, 342, 350, 352, 363, 365 and 506 read with Section 34 IPC, against the respondents, in pursuance whereof, they were summoned, to face trial. It was further stated that, however, on 08.02.2000, on the basis of the statement, suffered by Daljit Saini, to the effect, that he did want to Criminal Revision No. 1061 of 2006 3 lead any precharge evidence, against the respondents, and the same be treated as closed, they (respondents) were discharged by the trial Court.

3. Om Parkash, appeared, in the Court, as a complainant, and reiterated the allegations, contained in the complaint, on the basis whereof, the respondents, were summoned, by the trial Court, to face trial, for the offences, punishable under Sections 120-B, 323, 324, 342, 350, 352, 363, 365 and 506 read with Section 34 IPC.

4. After hearing the Counsel for the parties, and, on going through the record of the case, the application for their discharge, filed by the respondents, was dismissed, by the trial Court, vide order dated

10.06.05.

5. Feeling aggrieved, a revision-petition, was filed, by the respondents, which was accepted, by the Court of Additional Sessions Judge, Gurdaspur, vide judgement dated 31.10.05, discharging them from the aforesaid offences.

6. Feeling dissatisfied, the instant revision-petition, has been filed by the revision-petitioner.

7. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

8. The Counsel for the revision-petitioner, submitted that Daljit Saini and the revision-petitioner namely Om Parkash, were co- detenues. He further submitted that right to life and liberty of both of them was infringed, by the accused/respondents, and, therefore, both had an independent right, to seek legal remedy, for their illegal detention. He further submitted that, no doubt, Daljit Saini, filed a Criminal Revision No. 1061 of 2006 4 separate criminal complaint, against the respondents, but, later on, he entered into compromise with them, which was ultimately dismissed. He further submitted that the present revision-petitioner, was not a co- complainant, in the complaint, filed by Daljit Saini. He further submitted that the revision-petitioner, had every right, to file a separate complaint for his own illegal detention, and, therefore, compromise by one detenue, in individual capacity, was not binding upon the present revision-petitioner. He further submitted that the trial Court, was right, in dismissing the application, filed by the respondents, for their discharge, under Section 245(2) Cr.P.C. He further submitted that the Court of Additional Sessions Judge, Gurdaspur, acted illegally, in coming to the conclusion that, since Daljit Saini, in the complaint, which was filed, by him, in individual capacity, against the respondents, though, with regard to the same incident, entered into compromise with them, the petitioner, could not file a fresh complaint. He further submitted that the judgement dated 31.10.05, rendered by the Court of Additional Sessions Judge, Gurdaspur, being illegal, is liable to be set aside.

9. On the other hand, the Counsel for the respondents, submitted that, no doubt, the revision-petitioner, was not a co- complainant with Daljit Saini, in the complaint, filed by him, with regard to the same incident, yet, he was a witness therein. They further submitted that, in that complaint, Daljit Saini, entered into a compromise with the respondents and the same was dismissed. They further submitted that, even a suit for declaration, which was filed, by Criminal Revision No. 1061 of 2006 5 the present revision-petitioner, against the respondents, was withdrawn, by him, on account of compromise, vide order dated 08.02.2000. They further submitted that, no complaint, therefore, could be filed, by the revision-petitioner. They also placed reliance, on P. Vijayan Vs. State of Kerala and another [2010, AIR, SCW, 886], Dalip Singh Vs. State of Uttar Pradesh and others (2010), 2, SCC, 114, Poonam Chand Jain and another Vs. Fazru, 2005(1), PLR, 40 (SC), State of Rajasthan Vs. Hat Singh & others, 2003(1), RCR (Criminal), 437 (SC), Jatinder Singh Vs. Ranjit Kaur, 2001(1), RCR (Criminal), 692 (SC), and, Gian Chand Vs. State of Punjab, 2003(2), RCR (Criminal), 384, in support of their contention, that the complaint, filed by the revision-petitioner, against the respondents, would amount to double jeopardy. They further submitted that the judgement dated

31.10.05, rendered by the Court of Additional Sessions Judge, Gurdaspur, in revision-petition, thus, being legal, is liable to be upheld.

10. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be accepted, for the reasons to be recorded hereinafter. The revision-petitioner and Daljit Saini, were illegally detained and tortured by the respondents. Sh. Tirath Ram Saini, knocked the door of the Apex Court, through Criminal Writ Petition (Criminal No. 327 of 1993), against the State of Punjab through Secretary, Ministry of Home Affairs, Chandigarh (Punjab), Director General of Police, State of Punjab at Chandigarh and so many other respondents, to produce Daljit Singh, his son, and Om Parkash, Criminal Revision No. 1061 of 2006 6 brother-in-law of Daljit Saini. A prayer was also made, that all these persons be freed and their life and liberty be saved. Various other allegations, were made, in that Writ Petition. The Apex Court, got conducted an enquiry, from the District & Sessions Judge, Ludhiana, into the allegations, contained in that Writ Petition. The District & Sessions Judge, Ludhiana, conducted enquiry, and found the respondents guilty, with regard to the illegal confinement, and torture of the revision-petitioner, and Daljit Saini. In the meanwhile, both Daljit Saini and Om Parkash, revision-petitioner, were released, from the custody of the Police. Vide order dated 18.01.96, the Apex Court, held as under:- “Since both of them are no longer in confinement a direction for their release from custody is not called for. But having regard to the fact that Daljit Saini and Om Parkash were wrongfully deprived of their right to personal liberty by the Police authorities of the State of Punjab, during the period from August 9, 1993 to October 2, 1993, we direct the State of Punjab to pay to each of them a sum of Rs. 10,000/- by way of compensation within a period of one month. The payment of this amount by way of compensation would not preclude Daljit Saini and Om Parkash from pursuing the remedy, civil as well as criminal, that is available to the them in law in respect of their wrongful confinement during this period.”

11. On perusal of the operative part of the order dated 18.01.96, it is evident, that liberty, was granted, to Daljit Saini and Om Parkash, revision-petitioner, to pursue the remedy civil as well as criminal, that may be available to them, in law, in respect of their wrongful Criminal Revision No. 1061 of 2006 7 confinement during the specific period. It was, thereafter, that a criminal complaint, was filed, by Daljit Saini, against the respondents. In that criminal complaint, Daljit Saini, entered into a compromise, and, ultimately, the same was dismissed. However, Om Parkash, revision-petitioner, was not a co-complainant with Daljit Saini, in that complaint. He was only cited as a witness. Admittedly, Om Parkash, revision-petitioner, at that time, had not filed a criminal complaint, against the respondents. Later on, he filed the criminal complaint, against the respondents, as per the liberty, granted to him, vide order dated 18.01.96, by the Apex Court, in which, the respondents were summoned. They filed an application for discharge, which was dismissed, by the trial Court, but, in the revision-petition, it was accepted, by the Revisional Court. Om Parkash, revision-petitioner, was having his individual right, to file a criminal complaint, against the respondents. The mere fact, that Daljit Saini, entered into compromise with the respondents, in respect of the complaint, filed by him, did not deprive the revision-petitioner, of his right, to file a separate criminal complaint, against the respondents. The mere fact, that the civil suit, which was filed, by the revision-petitioner, against the respondents, was withdrawn by him, on the basis of compromise, also did not deprive him of his legal right of filing the criminal complaint against them. In Poonam Chand Jain and another's case (supra), the complainant, filed a complaint, which was dismissed. On the same facts, he filed another complaint, without any exceptional circumstance. It was held, that the second complaint, filed by the same Criminal Revision No. 1061 of 2006 8 complainant, would amount to double jeopardy. In Gian Chand's case (supra), complaint under Sections 468 and 471 IPC, was dismissed, by the Magistrate. It was held, that the brother of the complainant, could not file the second complaint, on the same set of facts. In State of Rajasthan's case (supra), it was held, by the Apex Court, that to attract the applicability of Article 20(2), there must be a second prosecution and punishment for the same offence, for which, the accused, had been prosecuted and punished previously. It was further held, that a subsequent trial or a prosecution and punishment, are not barred, if the ingredients of the two offences are distinct. In Jatinder Singh's case (supra), the complaint was dismissed, in default, but, it was held, that the second complaint, on the same facts, was not maintainable. In Dalip Singh's case (supra), it was held, that a litigant, who comes to the Court, by suppression of material facts, is not entitled to any relief. In P. Vijayan's case (supra), it was held, that the Court, is empowered to discharge the accused, if two views are possible, and, one of them gives rise to suspicion only, as distinguished, from grave suspicion. There is, no dispute, with the proposition of law, laid down, in the aforesaid cases. However, the facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. No help, therefore, can be drawn, by the Counsel for the respondents, from the ratio of law, laid down, in the aforesaid cases. The Court of Additional Sessions Judge, Gurdaspur, illegally held, that the complaint by the revision-petitioner, in his individual capacity, regarding his illegal confinement and toture was not maintainable. The judgement, rendered Criminal Revision No. 1061 of 2006 9 by the Court of Additional Sessions Judge, Gurdaspur, being illegal and perverse, is liable to be set aside.

12. For the reasons recorded above, the revision-petition, is accepted. The judgement dated 31.10.05, rendered by the Court of Additional Sessions Judge, Gurdaspur, is set aside. The trial Court, is directed, to proceed further, in accordance with the provisions of law.

13. The Registry is directed to send copies of the order to the quarters concerned immediately.

10.03.2010 Amodh (SHAM SUNDER) JUDGE