Present:- Mr. B.S. Bhinder Advocate Vs. State of Punjab and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1159878
CourtPunjab and Haryana High Court
Decided OnJul-22-2014
AppellantPresent:- Mr. B.S. Bhinder Advocate
RespondentState of Punjab and Another
Excerpt:
crl. misc. no.m-10748 of 2012 (1) in the high court of punjab and haryana at chandigarh crl. misc. no.m-10748 of 2012 date of decision: 22.7.2014 joginder singh ..........petitioner versus state of punjab and another ..........respondent before:- hon'ble mrs.justice daya chaudhary present:- mr.b.s.bhinder, advocate for the petitioner. mr.tn sarup, addl. a.g., punjab. mr.d.r.punia, advocate for respondent no.2. **** daya chaudhary, j. the present petition has been filed under section 482 cr.p.c.for quashing of order dated 28.5.2011 (annexure p-1) passed by superintendent of police (d) district kapurthala, whereby, name of respondent no.2 has been delisted from the list of proclaimed offenders.briefly the facts of the case are that on the basis of complaint made by the petitioner, fir no.139 dated 8.7.2007 was registered under section 304-b ipc at police station bhulath, district kapurthala against respondent no.2 and other family members.during the pendency of the trial, respondent no.2 did not appear and other accused faced trial. other accused except respondent no.2 were acquitted of the charge by the trial court vide judgment dated 11.1.2010. the superintendent of jail prepared pooj.sharma201408.06 10:18 crl. misc. no.m-10748 of 2012 (2) the list of proclaimed offenders but the name of respondent no.2 was delisted from the said list, whereas, he was declared proclaimed offender by the trial court as he was away to broad and did not face the trial. learned counsel for the petitioner has challenged order dated 28.5.2011 on the ground that it is not within the jurisdiction of the police to delist the name of any proclaimed offender from the list and as such the impugned order is without any jurisdiction and competency. notice of motion was issued on 6.10.2012. in response to notice of motion, separate replies on behalf of the respondents have been filed, which are on record. learned counsel for the respondent-state submits that co.accused of respondent no.2 have been acquitted of the charge by the trial court vide judgment dated 11.1.2010 and the said judgment has not been challenged by the petitioner and the same has attained finality. learned counsel further submits that an application was moved by co-accused of respondent no.2, namely, mohinder singh for delisting the name of respondent no.2 from the list of proclaimed offenders which was enquired into by the then deputy superintendent of police, sub division, bholath. on the basis of that enquiry permission was granted to remove the name of respondent no.2 vide order dated 26.5.2011. said order dated 26.5.2011 has not been challenged before any competent authority and hence the present petition is not maintainable. learned counsel appearing for respondent no.2 has also raised a preliminary objection that the present petition is not maintainable as the name of respondent no.2 has been delisted as per powers provided under rule 23.23 of punjab police rules. learned counsel further submits that respondent no.2 is permanent resident of spain and he is residing there since 12 years prior to date of occurrence. learned counsel also pooj.sharma201408.06 10:18 crl. misc. no.m-10748 of 2012 (3) submits that co-accused of respondent no.2 were acquitted of the charge by the trial court and no different evidence was against him and as such he is also on equal footings. heard the arguments advanced by counsel for the parties and have also gone through the impugned orders as well as other documents available on file. admittedly, fir no.139 dated 8.7.2007 under section 304-b ipc was registered at police station bholath, district kapurthala against respondent no.2 and other family members.all accused except respondent no.2 faced the trial and were acquitted of the charge. respondent no.2 was declared proclaimed offender and that proclaimed offender order has not been challenged so far. on the basis of application moved by co-accused of respondent no.2, namely, mohinder singh, name of respondent no.2 has been delisted from the list of proclaimed offenders.which is subject matter of challenge in the present petition. learned counsel for the respondent-state as well as respondent no.2 has justified the order on the ground that impugned order has been passed in view of powers provided under rule 23.23 of punjab police rules. rule 23.23 of punjab police rules is reproduced as under:- “23.23 revision of list of proclaimed offenders (1) every superintendent shall carefully revise his list of proclaimed offenders periodically and omit therefrom after consultation with the district magistrate and the superintendent of the district in which such person was proclaimed, the names of persons accused of trivial offences or concerned in cases where from lapse of time, no sufficient evidence is on record or is procurable. 2) due intimation of such omission shall be sent to tehsil pooj.sharma201408.06 10:18 crl. misc. no.m-10748 of 2012 (4) officer in charge of the police station concerned, intimation shall also be sent to the deputy inspector general, criminal investigation department, in those cases in which intimation of proclaimed was given, or in which a notice issued in the criminal intelligence gazette. 3) a separate revised list shall be submitted for proclaimed offenders who after registered members of criminal tribes. on perusal of said rule, it is clear that list of proclaimed offenders is to be revised by concerned superintendent of police periodically and the names can be omitted only after consultation with district magistrate in case the offence is trivial and no sufficient evidence is on record. thereafter, an intimation is to be sent to deputy inspector general, crime investigation department. in the present case, respondent no.2 was accused for an offence under section 304-b ipc and he did not face trial along with co.accused. nothing has been mentioned in the order as to on what ground the name of respondent no.2 has been delisted from the list of proclaimed offenders.as per said provisions the names can be omitted from the list only in trivial offences and not in serious offences. it is for the trial court to see whether the evidence in case of respondent no.2 is same or not. moreover, respondent no.2 is husband of the deceased and co-accused are his family members.without having anything on record, it can not be said that respondent no.2 was at par with other accused who have been acquitted. accordingly, the impugned order is totally non-speaking and passed without any competency. nowhere it has been provided that the name of proclaimed offender can be delisted even in a serious offence like 304-b ipc. learned counsel for the respondent-state as well as respondent no.2 are not in a position to show any provision except rule pooj.sharma201408.06 10:18 crl. misc. no.m-10748 of 2012 (5) 23.23 of punjab police rules for delisting the name of the proclaimed offender. in view of the discussion made above, the present petition is allowed and impugned order dated 28.5.2011 (annexure-p1) is set aside. july 22, 2014 (daya chaudhary) pooja judge pooj.sharma201408.06 10:18
Judgment:

Crl.

Misc.

No.M-10748 of 2012 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.

Misc.

No.M-10748 of 2012 DATE OF DECISION: 22.7.2014 Joginder Singh ..........Petitioner Versus State of Punjab and another ..........Respondent BEFORE:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.B.S.Bhinder, Advocate for the petitioner.

Mr.TN Sarup, Addl.

A.G., Punjab.

Mr.D.R.Punia, Advocate for respondent No.2.

**** DAYA CHAUDHARY, J.

The present petition has been filed under Section 482 Cr.P.C.for quashing of order dated 28.5.2011 (Annexure P-1) passed by Superintendent of Police (D) District Kapurthala, whereby, name of respondent No.2 has been delisted from the list of proclaimed offendeRs.Briefly the facts of the case are that on the basis of complaint made by the petitioner, FIR No.139 dated 8.7.2007 was registered under Section 304-B IPC at Police Station Bhulath, District Kapurthala against respondent No.2 and other family membeRs.During the pendency of the trial, respondent No.2 did not appear and other accused faced trial.

Other accused except respondent No.2 were acquitted of the charge by the trial Court vide judgment dated 11.1.2010.

The Superintendent of Jail prepared POOJ.SHARMA201408.06 10:18 Crl.

Misc.

No.M-10748 of 2012 (2) the list of proclaimed offenders but the name of respondent No.2 was delisted from the said list, whereas, he was declared proclaimed offender by the trial Court as he was away to broad and did not face the trial.

Learned counsel for the petitioner has challenged order dated 28.5.2011 on the ground that it is not within the jurisdiction of the police to delist the name of any proclaimed offender from the list and as such the impugned order is without any jurisdiction and competency.

Notice of motion was issued on 6.10.2012.

In response to notice of motion, separate replies on behalf of the respondents have been filed, which are on record.

Learned counsel for the respondent-State submits that Co.accused of respondent No.2 have been acquitted of the charge by the trial Court vide judgment dated 11.1.2010 and the said judgment has not been challenged by the petitioner and the same has attained finality.

Learned counsel further submits that an application was moved by co-accused of respondent No.2, namely, Mohinder Singh for delisting the name of respondent No.2 from the list of Proclaimed Offenders which was enquired into by the then Deputy Superintendent of Police, Sub Division, Bholath.

On the basis of that enquiry permission was granted to remove the name of respondent No.2 vide order dated 26.5.2011.

Said order dated 26.5.2011 has not been challenged before any competent authority and hence the present petition is not maintainable.

Learned counsel appearing for respondent No.2 has also raised a preliminary objection that the present petition is not maintainable as the name of respondent No.2 has been delisted as per powers provided under Rule 23.23 of Punjab Police Rules.

Learned counsel further submits that respondent No.2 is permanent resident of Spain and he is residing there since 12 years prior to date of occurrence.

Learned counsel also POOJ.SHARMA201408.06 10:18 Crl.

Misc.

No.M-10748 of 2012 (3) submits that co-accused of respondent No.2 were acquitted of the charge by the trial Court and no different evidence was against him and as such he is also on equal footings.

Heard the arguments advanced by counsel for the parties and have also gone through the impugned orders as well as other documents available on file.

Admittedly, FIR No.139 dated 8.7.2007 under Section 304-B IPC was registered at Police Station Bholath, District Kapurthala against respondent No.2 and other family membeRs.All accused except respondent No.2 faced the trial and were acquitted of the charge.

Respondent No.2 was declared proclaimed offender and that Proclaimed Offender order has not been challenged so far.

On the basis of application moved by co-accused of respondent No.2, namely, Mohinder Singh, name of respondent No.2 has been delisted from the list of Proclaimed OffendeRs.which is subject matter of challenge in the present petition.

Learned counsel for the respondent-State as well as respondent No.2 has justified the order on the ground that impugned order has been passed in view of powers provided under Rule 23.23 of Punjab Police Rules.

Rule 23.23 of Punjab Police Rules is reproduced as under:- “23.23 Revision of list of Proclaimed offenders (1) Every Superintendent shall carefully revise his list of proclaimed offenders periodically and omit therefrom after consultation with the District Magistrate and the Superintendent of the District in which such person was proclaimed, the names of persons accused of trivial offences or concerned in cases where from lapse of time, no sufficient evidence is on record or is procurable.

2) Due intimation of such omission shall be sent to Tehsil POOJ.SHARMA201408.06 10:18 Crl.

Misc.

No.M-10748 of 2012 (4) officer in charge of the Police station concerned, intimation shall also be sent to the Deputy Inspector General, Criminal Investigation Department, in those cases in which intimation of proclaimed was given, or in which a notice issued in the Criminal Intelligence Gazette.

3) A separate revised list shall be submitted for proclaimed offenders who after registered members of criminal tribes.

On perusal of said Rule, it is clear that list of proclaimed offenders is to be revised by concerned Superintendent of Police periodically and the names can be omitted only after consultation with District Magistrate in case the offence is trivial and no sufficient evidence is on record.

Thereafter, an intimation is to be sent to Deputy Inspector General, Crime Investigation Department.

In the present case, respondent No.2 was accused for an offence under Section 304-B IPC and he did not face trial along with Co.accused.

Nothing has been mentioned in the order as to on what ground the name of respondent No.2 has been delisted from the list of proclaimed offendeRs.As per said provisions the names can be omitted from the list only in trivial offences and not in serious offences.

It is for the trial Court to see whether the evidence in case of respondent No.2 is same or not.

Moreover, respondent No.2 is husband of the deceased and co-accused are his family membeRs.Without having anything on record, it can not be said that respondent No.2 was at par with other accused who have been acquitted.

Accordingly, the impugned order is totally non-speaking and passed without any competency.

Nowhere it has been provided that the name of proclaimed offender can be delisted even in a serious offence like 304-B IPC.

Learned counsel for the respondent-State as well as respondent No.2 are not in a position to show any provision except Rule POOJ.SHARMA201408.06 10:18 Crl.

Misc.

No.M-10748 of 2012 (5) 23.23 of Punjab Police Rules for delisting the name of the proclaimed offender.

In view of the discussion made above, the present petition is allowed and impugned order dated 28.5.2011 (Annexure-P1) is set aside.

July 22, 2014 (DAYA CHAUDHARY) pooja JUDGE POOJ.SHARMA201408.06 10:18