GURWINDER SINGH @ MINTU Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a petition for quashing of FIR No. 244 dated 25.09.2007, registered under Sections 399, 401, 402 of the Indian Penal Code, 1860 [for short "IPC"] and 25, 54, 59 of the Arms Act, 1959 [for short "the Act"] at Police Station City Rajpura, District Patiala.

(2.) The allegations in the FIR are that a secret information was received by the police party that Jagjit Singh @ Billa, Gurcharan Singh, Ranjit Singh @ Kala, Sat Narain, Parmod Kumar and Gurwinder Singh @ Mintu (petitioner herein) have assembled and were preparing for committing dacoity with deadly weapons. A raid was conducted and all the aforesaid persons except the petitioner were apprehended along with their respective weapons. The challan against all the aforesaid persons except the petitioner was presented but Sat Narain and Parmod Kumar were tried in absentia as they were declared proclaimed offenders, for the offence punishable under Sections 399 and 402 of the IPC read with Section 25 of the Arms Act. The learned Additional Sessions Judge, Patiala, vide his order dated 18.04.2011, acquitted Jagjit Singh @ Billa, Gurcharan Singh and Ranjit Singh, after giving them benefit of doubt and since Sat Narain and Parmod Kumar were declared proclaimed offenders, therefore, it was observed that the prosecution may present the challan against them as and when they are arrested or surrender before the Court. The relevant observation of the learned Trial Court in this regard are reproduced hereasunder : "As a result of the aforesaid discussion, I have arrived at the confirmed and considered conclusion that the prosecution witnesses have failed to inspire confidence in the mind of the court, so as to prove that the occurrence in question took place in the manner as set up in the prosecution version. The prosecution has also failed to prove that five or more persons including the accused were found making preparation to commit dacoity or robbery, for which the accused were making preparation. The witnesses of the prosecution are seriously discrepant to each other with the material aspects of the case. There is not even an iota of evidence on the record to prove that the Investigating Officer or any other officials have over heard conversation amongst the accused, from which it could be inferred that the accused were making preparation to commit dacoity. The mere presence of five or more than five persons, even if armed with weapons, will not automatically make out an offence either under Section 399 or 402 of the Indian Penal Code, unless there was cogent and convincing evidence on the record to the effect that the accused has assembled in the alleged manner for preparation to commit dacoity or robbery. The Investigating Officer seems to have assumed that the accused were making preparation to commit dacoity or robbery merely on the assertion that the accused fled from the spot on seeing the police party. The Investigating Officer did not care to collect any such evidence, which could convince the court, if the accused had assembled at the spot, they had so done for preparation to commit dacoity or robbery. No such antecedents of the accused have been established on the record suggestive of such an inference that the accused were habitual robbers or dacoits. Looking at such type of evidence adduced by the prosecution, I have come to the conclusion that the prosecution has miserably failed to prove firstly that the accused had formed an unlawful assembly consisting of more than five persons and secondly, that the assembly was so constituted for the purpose of committing dacoity or preparation to commit dacoity. The prosecution has failed to prove that the alleged robbery or dacoity, which allegedly the accused were prepared was to be committed by the five or more persons. So, as a result of aforesaid discussion, the accused cannot be held guilty under Sections 399 and 402 of the Indian Penal Code and they deserve to be acquitted. I accordingly acquit the accused Jagjit Singh, Gurcharan Singh and Ranjit Singh of the offence charged, after giving them the benefit of doubt. Since the accused Sat Narain and Parmod Kumar have been declared proclaimed offenders, the prosecution is at liberty to present the challan against them as and when they are arrested by the police or surrender before the court."

(3.) It is pertinent to mention here that Sat Narain had already died, whereas the petitioner was arrested on 15.06.2011 and was released on bail on 19.08.2011. The present petition has been filed for seeking quashing of the FIR and all the proceedings arising therefrom, inter alia, on the ground that once the co-accused has been acquitted by the learned Trial Court on the ground that the prosecution could not bring on record any evidence to the effect that they had assembled and were preparing for committing the crime of dacoity etc., the proceedings against the present petitioner would be an exercise in futility as no case under Sections 399 and 402 IPC is made out against him as well. It is submitted that Section 399 IPC is a punishing Section for preparation of committing dacoity with rigorous imprisonment for a term which may extend to ten years and also with fine and Section 402 of IPC provides that at any time after the passing of this Act, if one or five persons had assembled for the purpose of committing dacoity, then he/they shall be punished with rigorous imprisonment of a term which may extend to seven years alongwith fine. It is submitted that the dacoity is defined under Section 391 of the IPC according to which when five or more persons conjointly commit or attempt to commit a robbery, then every person so committing, attempting or aiding, is said to commit "dacoity".