CHAND SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioners have sought a writ in the nature of certiorari for quashing judgment dated 19.01.2015 passed by Additional Sessions Judge, Moga whereby he has held the petitioners guilty for offences under sections 302 and 201 IPC and sentenced them accordingly. Both petitioners have been directed to undergo rigorous imprisonment for life and to pay fine of L 5,000/- each for offence under section 302 IPC and to undergo rigorous imprisonment for 5 years and to pay fine of L 2,000/- each for offence under section 201 IPC. The judgment has been challenged on the ground that petitioners were neither arraigned as accused nor put to trial. However, in his judgment dated 19.01.2015, the Additional Sessions Judge, Moga held the petitioners guilty for commission of offences under sections 302 and 201 IPC. Learned counsel for the petitioners contended that petitioners have no other remedy except to impugn the judgment by way of this writ petition as appeal under section 374 Cr.P.C., 1973 can be filed only by a convict who has been put to trial. Petitioners were never charge-sheeted nor faced trial. They would, thus, not be entitled to prefer an appeal before the High court. However, their life and liberty is at stake. They have no option except to invoke the extra ordinary writ jurisdiction of this court. While issuing notice of motion, a coordinate bench had stayed the arrest of the petitioners. Thereafter reply by way of affidavit of Gurpreet Singh, Deputy Superintendent of Police, Dharamkot was filed. According to same, names of petitioners figured in the FIR, however challan was presented against three accused only. After presentation of challan, proclamation proceedings were initiated against the petitioners but later dropped. Gupreet Singh, DySP has further stated that neither any application under section 319 Cr.P.C., 1973 was moved by the prosecution before the trial court to summon the petitioners to face trial nor any order summoning them was ever passed. On conclusion of trial, vide judgment dated 19.01.2015 both petitioners alongwith other accused were convicted for offence under sections 302 and 201 IPC. It has been further stated by the Deputy Superintendent of Police, Dharamkot that names of the petitioners were mentioned in column no. 2 of final report. Separate affidavit has been filed by the Public Prosecutor Anshuman Syal. According to him, application under section 319 Cr.P.C., 1973 for summoning petitioners as additional accused was inadvertently moved by the prosecution. Same was later withdrawn. He has stated therein that three accused were convicted by the trial court. Proclamation proceedings against the petitioners, which were dropped earlier, were restored in view of judgment dated 19.01.2015 and non-bailable warrants were issued to secure their presence. Copies of the orders to show that efforts had been made to execute non-bailable warrants have been annexed as Annexures R-9 to R-22 with the said reply. He has annexed certain orders with his reply to fortify his plea that only three accused were convicted by the trial court.

(2.) I have heard learned counsel for the parties and given careful thought to the facts of the case.

(3.) One Jaspal Singh made a statement before the police on 13.06.2012 at 06:00 P.M. that his father Ranjit Singh had gone to the fields to cut bushes but did not return. They searched for him during night but were unsuccessful. Similar exercise was carried out next morning. When complainant alongwith his brother Avtar Singh and uncle Sukhwinder Singh reached the canal bridge minor near the fields of Paramjit Singh, they noticed some blood in the middle of the bridge which was covered with the soil. Near the spot, slippers and some clothes of their father was lying. Complainant and his companion entered the canal and found the bicycle of his father. As they were sure that their father had been murdered and thrown in the canal, they searched on the side towards which water was flowing. As they reached near the bridge of canal minor, they saw dead body of Ranjit Singh lying in the canal. Complainant suspected certain persons who could have committed the murder. They named five accused including the petitioners. Formal FIR was lodged at police station Dharamkot and investigation ensued. Challan was presented against three accused and charges were framed against them. During the course of trial, prosecution examined as many as eight witnesses. After appreciating the evidence, the court came to the conclusion that accused were guilty of offences under sections 302 and 201 IPC. It also noticed that during pendency of trial a report under section 173(8) Cr.P.C., 1973 was submitted declaring the petitioners namely Chand Singh and Desa Singh innocent. An application was also moved to summon them as additional accused under section 319 Cr.P.C., 1973 but was withdrawn during the course of proceedings. It went on to discuss the implication of section 173(8) report and rejected the same on the ground that same amounted to reinvestigation which was not permissible in law. It found that all accused were guilty of offences charged with and held as follows:-