Crl. Misc. No.M-9312 of 2010 v. State of Punjab

CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK

1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. M.S.Rakkar, Senior Advocate, with Mr. P.S.Baath, Advocate, for the petitioner. Ms. Rajni Gupta,. Addl. A.G., Punjab, for the State. Mr. R.K.Dadwal, Advocate, for respondent No.2. VIJENDER SINGH MALIK, J. This is a petition brought under the provisions of section 482 Cr.P.C. for quashing the charges framed against the petitioner on

15.12.2009 (Annexure P1) for an offence punishable under sections 323, 324, 326, 452 read with section 34 IPC and all the subsequent proceedings arising out of the case registered by way of FIR No. 71 dated 26.10.1987 at Police Station Balachaur District Nawanshahr. The brief facts leading to this petition are that Anant Ram, Harbhajan Singh and Gurbhajan Singh (the petitioner) entered into the Crl. Misc. No.M-9312 of 2010 ... 2 house of Harvinder Kaur. They were armed armed with kirpan and other weapons and they assaulted Jasbir Singh and Harvinder Kaur with those weapons causing them injuries attracting the provisions of sections 323, 324, 326 and 452 read with section 34 IPC. During investigation of the case, the police found Gurbhajan Singh to be innocent and placed his name in column No. 2 of the challan. Thereafter, Harvinder Kaur appeared in the court as a witness and after recording of her statement, an application was moved under section 319 Cr.P.C., which was allowed and Gurbhajan Singh, the petitioner has been summoned to stand trial. On his appearance, learned Chief Judicial Magistrate, Chandigarh framed charge against him for an offence punishable under sections 452, 323, 324 and 326 read with section 34 IPC vide order dated 15.12.2009. The order framing charge against the petitioner has been challenged by way of this petition. On notice, the State appeared and filed reply to the petition claiming that the same amounts to abuse of process of the law, having been filed with the only motive to delay the proceedings which are more than one and a half decades old. The order framing charge is claimed to be legal and valid in the eyes of law. The other allegations in the petition have been denied. No reply to the petition is filed by respondent No.2. I have heard Mr. M.S.Rakkar, learned Senior counsel assisted by Mr. P.S.Baath, learned counsel for the petitioner, Ms. Rajni Gupta, learned Addl. Advocate General, Punjab for the State and Mr. R.K.Dadwal, learned counsel for respondent No.2. I have gone through the record carefully. Crl. Misc. No.M-9312 of 2010 ... 3 Learned counsel for the petitioner has submitted that on

15.12.2009 learned Chief Judicial Magistrate passed only the following order at the time of framing of charge:- “ Charge on additional accused Gurbhajan Singh framed to which he pleaded not guilty and claimed trial. Now, PWs be summoned for 12.1.2010. Also to come up on the said date for consideration on application filed under section 239 and 207 by accused Gurbhajan Singh.” According to him, no order is there on the file revealing that learned Chief Judicial Magistrate, Chandigarh had heard the parties and had gone through the material on record to reach the conclusion about there being a prima facie case against Gurbhajan Singh for the offence for which he was charged. He has submitted that under section 239 Cr.P.C. the Magistrate has to consider the police report as also the documents sent with it under section 173 Cr.P.C. and has to make such examination of the accused as he may think necessary and after giving the prosecution and the accused an opportunity of being heard, he has to take the decision if the charge against the accused is groundless. In case, it is so found, then under the provisions of section 239 Cr.P.C. he is to discharge the accused. If he does not reach such a conclusion, then he shall frame charge against the accused under the provisions of section 240 Cr.P.C. Although, at the time of framing of charge, reasons are not required to be given for reaching the conclusion that there is a prima facie case against the accused for having committed the offence, Crl. Misc. No.M-9312 of 2010 ... 4 reasons have to be given when the Magistrate discharges the accused. So, reasons were not required by the CJM, Chandigarh to be given for framing charge against the accused. However, an order was required to be made by CJM, Chandigarh wherefrom it could appear that the Magistrate had gone through the police report alongwith documents sent under section 173 Cr.P.C. and had heard prosecution and accused. There is no order on the file to show that the Magistrate had heard the prosecution and the accused and has gone through the record before him. There is not even a word to say that the Magistrate found a prima facie case against the accused. Passing of such an order is not an empty formality. The trial would be vitiated if such a step is missing in the trial being conducted by the Magistrate. It has been held in P. Vijayan Vs. State of Kerala and Anr. AIR 2010 Supreme Court 663 that the Judge is not a mere Post Office to frame the charge at the behest of prosecution and that the Judge has to apply his judicial mind to the facts of the case in order to determine whether the case for trial has been made out by the prosecution or not. The charge framed against the petitioner in this case is without application of mind as per the provisions of section 239 Cr.P.C. So, framing of charge stands vitiated and therefore, the order dated

15.12.2009 and the charges framed against the petitioner deserve to be set-aside. Consequently, I allow this petition and quash the charges and subsequent proceedings against Gurbhajan Singh, the petitioner in this case, and direct learned Magistrate to hear the prosecution and the Crl. Misc. No.M-9312 of 2010 ... 5 accused and consider the material placed on the file as per the terms of section 239 Cr.P.C. and to frame charge only when he finds no ground to discharge the petitioner. August 6th, 2012 (VIJENDER SINGH MALIK) JUDGE Crl. Misc. No.M-9312 of 2010 ... 6 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 52508 of 2010 Criminal Misc. No. M-9312 of 2010 Gurbhajan Singh Vs. State of Punjab Present Mr. R.K.Dadwal, Advocate, for the applicant – Harvinder Kaur. Mr. M.S.Rakkar, Senior Advocate, with Mr. P.S.Baath, Advocate, for the petitioner. Ms. Rajni Gupta, Addl. A.G., Punjab, for the State. .. Learned counsel for the applicant/complainant submits that application of Harvinder Kaur, the complainant for being impleaded as respondent No. 2 has still not been allowed. The order sheet shows that the name of her counsel has been mentioned in the name of parties in the order sheet as counsel for respondent No.2. To rectify the defect, the application is allowed. Registry is directed to make necessary additions in the memo of parties. Learned counsel for respondent No. 2 submits that he does not wish to file to the main petition. Let arguments be heard. August 6th, 2012 (VIJENDER SINGH MALIK) JUDGE