Jagbir Singh vs Ut Of Chandigarh
2022 Latest Caselaw 12345 P&H

CRR-812-2014                                                         1

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

Sr. No.239                                  CRR-812-2014 (O&M)
                                            Date of reserve: 25.8.2022
                                            Date of pronouncement:28.9.2022

Jagbir Singh
                                                       .....Petitioner(s)

VERSUS

U.T. Chandigarh
                                                       ..... Respondent(s)

CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY

Present:     Mr.Satyender Kumar, Advocate for
             Mr.Gaurav Mohunta, Advocate for the petitioner

             Mr.Shashank Bhandari, Addl.PP, UT, Chandigarh

AMAN CHAUDHARY, J.

This criminal revision petition has been filed by the petitioner

way back in the year 2014 against the judgment of conviction and order of

sentence dated 31.10.2013 passed by learned Additional Sessions Judge,

Chandigarh for the offence punishable under Section 336 IPC to undergo

simple imprisonment for three months and to pay fine of Rs.250/- and in

default of payment of fine to further undergo simple imprisonment for

seven days, in case FIR No. 62 dated 12.3.2012, registered under Sections

307, 506, 120-B IPC at Police Station Sector 17, Chandigarh.

Aspect, at first re:maintainability:-

Notice was issued in this revision petition on 8.9.2014,

pursuant to which, in the order dated 5.12.2018, the objection was raised by

learned counsel appearing on behalf of UT, Chandigarh regarding non-

maintainability of the revision petition, in view of the fact that against the

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judgment/ order passed by learned Additional Sessions Judge, Chandigarh,

whereby the petitioner has been convicted for the offence under Section 336

IPC and sentenced as above, in view of Section 376(B) Cr.P.C., the remedy

of appeal was available.

Faced with this, the learned counsel for the petitioner submits

that the present revision petition having been filed in the year 2014, is

maintainable in view of the provisions of Section 401(5) Cr.P.C., inasmuch

as, the sentence awarded to the petitioner was three months, which is less

than already undergone by him.

However, this Court is unable to persuade itself to accept the

aforesaid argument of learned counsel for the petitioner, as the aforestated

provision does not permit filing of revision petition, as is being projected by

the learned counsel for the petitioner. Finding the Court's view being firm,

he further states that the present revision petition has been filed by the

petitioner under an erroneous belief that no appeal lies against the judgment

of conviction and order of sentence in the present case and that revision

was the only remedy available to him. He, however, makes a prayer to treat

this revision as appeal, it having been filed way back in the year 2014 and if

he is relegated to the remedy of appeal, a lot more time will be consumed

and he has sought instructions from his client, who stated that his

conviction may be upheld and his release on probation for good conduct be

considered, which may help him get retiral/ pensionary benefits, he being a

government servant.

It may be accentuated at the outset, the view of Hon'ble the

Supreme Court of India on this issue, in the case of Joseph Stephen and

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others vs. Santhanasamy and others Criminal Appeal Nos. 90-93 of 2022,

decided on 25.1.2022, wherein it has held that the High Court has

jurisdiction to treat the application for revision as an appeal as per Sub

Section 5 of Section 401 Cr.P.C. on being satisfied that such application

was made under the erroneous belief that no appeal lies thereto and that it is

necessary in the interest of justice to do so. The relevant para of the

judgment is reproduced as under:

"However, in a case where the finding of acquittal is recorded on account of misreading of evidence or non- consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court. In the event of such direction, the trial court shall be obliged to reappraise the evidence in light of the observation of the Revisional Court and take an independent view uninfluenced by any of the observations of the Revisional Court on the merit of the case. By way of abundant caution, we may herein observe that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial."

Now adverting to the facts of the case in hand, the present

revision petition had been filed in the year 2014 before this Court on the

erroneous belief that no appeal lies. At this stage after a passage of 8 long

years and the fact that the petitioner is willing to accepts his conviction and

is only seeking consideration of release on probation, it may not be in the

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interest of justice to require the petitioner for withdrawal of the present

petition, in order to file an appeal.

The learned counsel appearing for the UT, Chandigarh is

unable to distinguish the above judgment.

Keeping in view of the aforesaid peculiar facts and

circumstances of the case, this Court is satisfied that the present revision

was filed under the erroneous belief that no appeal lies and it is deemed

necessary in the interest of justice to treat this revision as appeal, in view

the law laid down by Hon'ble the Supreme Court of India in the case of

Joseph Stephen (supra).

Ordered accordingly.

Main case

Factual aspect:

In brief, the facts are that as per the prosecution, on the

intervening night of 11/12.3.2012, Baleer Singh, Jagbir Singh and

Volunteer Gurjeet Singh were on duty on PCR vehicle ECHO-15. Inspector

Satpal received a phone call at his residence from police control room that

the police official on PCR vehicle ECHO-15 have consumed liquor and

they are creating a scene in the police control room, Police Head Quarter,

Sector 9, Chandigarh. When Inspector Satpal alongwith two other police

officials reached at Sector 9, well before that the accused left the premises.

When Inspector Satpal got ECHO-21 stopped near house No.224, Sector

16, Chandigarh and alighted from vehicle and asked accused Baleer Singh

to come to him and sit in PCR vehicle ECHO 21. In the meantime,

Constable Jagbir Singh, who was also alighted from ECHO 15, started

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hurling abuses at Inspector Satpal and pointed his service pistol directly at

him and fired a shot, which did not hit him. He threatened to kill Inspector

Satpal. He fired another shot at Inspector Satpal, which also did not hit him.

Thereafter, SI Sarita Roy, Incharge Police Post, ISBT, Sector 17,

Chandigarh came there alongwith other police officials and overpowered

Constable Jagbir Singh alongwith pistol.

Upon this, FIR in question came to be registered. After

completion of investigation, challan for the offence under Sections 307,

506, 120-B IPC was presented in the Court. Charges were framed under the

aforesaid sections against the petitioner/appellant alongwith his co-accused,

to which they pleaded not guilty and claimed trial. In support of his case,

the prosecution examined as many as 15 PWs. The accused were

examined under Section 313 Cr.P.C. In defence, the accused examined

Surinder Kumar as DW1.

After hearing the learned Additional Public Prosecutor and

learned defence counsel and evaluating the evidence placed on record, the

trial Court by observing that the prosecution failed to prove the charge for

the offence under Sections 307, 506, 120-B IPC against the accused -

petitioner/appellant but the petitioner was held guilty for having committing

an offence under Section 336 IPC to which he was convicted and sentenced

as stated above.

As per the prosecution story, the petitioner had fired two shots

from his service revolver towards Inspector Satpal has been disbelieved by

the learned trial Court and has rightly been acquitted him of the charges

under Sections 307, 506, 120-B IPC. Accordingly, even co-accused Baleer

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Singh has also been acquitted of the charges. He further submits that site

plan produced by the prosecution, as per which, PW1 Inspector Satpal was

fired upon by the petitioner/appellant does not tally with the facts and the

site map Ex.PB and as per their investigation, 8 live cartridges and one

empty cell were sealed in separate parcels. He further submits that during

cross-examination the said witness had stated that he was standing in front

of House No.224 and the present petitioner/appellant had parked the

vehicle in front of House No.221, which is on the opposite side. However,

PW1 had failed to clarify if any shot was fired at him, while he admitted

that the petitioner/appellant had fired a short in the air. The Investigating

officer had not recovered any 2nd empty shell nor was any bullet recovered

from the spot. No bullet marks were found on any of the houses. This fact

shows that no shot was fired by the petitioner. He further submits that no

independent witness was examined by the prosecution despite the fact that

the local residents were present at the spot. He further submits that the

petitioner/appellant and his co-accused had gone to the resident of SSP,

Chandigarh at the late hours to request for going of duty as the immediate

superior had not allowed the same. It is only account of the

petitioner/appellant feeling upset of not being allowed to meet SSP, sharp

exchange of words took place between him and guard on duty upon which

police officials were called to the spot. In fact, SI Rajinder Singh and ASI

Tarwinder Singh, who were on duty at PCR Headquarters at the time of the

alleged incident were suspended for not properly handling the situation and

departmental enquiry was initiated against them. He submits that the higher

officers nourished a grudge against the petitioner/appellant, who had

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approached the Central Administrative Tribunal in the year 2009 in

connection with the dispute over the seniority of constables and sending of

the constables for promotional course i.e. lower school course, wherein the

petitioner/appellant was not allowed by the department as the seniority for

the same was to be determined on the basis of joining and not on the basis

of confirmation.

Learned counsel for the petitioner/appellant also submits that

initially on account of his conviction, his services were terminated vide

order dated 14.3.2012 by invoking Article 311 (2)(b) of the Constitution

of India without holding enquiry. It, therefore, is unsuccessfully

challenged before the learned Chandigarh Administrative Tribunal,

Chandigarh Bench, Chandigarh and the same was upheld vide order dated

14.3.2014. The petitioner filed CWP-1061 of 2014 against the judgment of

the CAT, which was allowed by this Court vide judgment dated 8.10.2015

on the ground that the impugned order passed by the appointing authority

was found to be ex-facie illegal and the same was accordingly quashed.

This Court had directed that the petitioner shall be placed under

suspension during the course of departmental enquiry and regular

departmental enquiry after framing of charges be initiated against the

petitioner/appellant in accordance with law.

Learned counsel further relied upon the order dated 4.4.2016

passed by Hon'ble the Supreme Court in SLP (CC) No. 5652 of 201 filed

by the Chandigarh Administration against the order passed by this Court in

the aforesaid writ petition, wherein operation of the impugned order was

stayed. The said case is stated to be still pending adjudication.

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As per the custody certificate dated 25.8.2022 produced by the

learned counsel for UT, Chandigarh, the petitioner/appellant has undergone

1 year, 4 months and 24 days, during the trial, out of which post conviction

period is one day.

Discussion:

The case in hand is regarding an incident that took place on

the intervening night of 11/12.3.2012. The FIR was lodged under Sections

307, 506, 120-B IPC. Though, the prosecution had failed to prove the

charges against the petitioner/appellant and his co-accused for the offence

punishable under Sections 307, 506, 120-B IPC but he came to be

convicted under Section 336 IPC. The trial Court had scrutinised the entire

evidence and found that the case against the petitioner/appellant stood

proved beyond reasonable, which this Court is in agreement with.

Conclusion:

In view of the finding recorded by the trial Court as upheld by

the appellate court which were based on the proper evidence, it is the

considered view of this Court that no interference is required, accordingly,

the conviction of the petitioner/appellant is affirmed.

Prayer in alternate:

Now for considering the prayer made on behalf of the

petitioner/appellant, for letting him off on probation reliance is made on a

judgment of Hon'ble the Supreme Court of India in the case B.S.

Narayanan vs. State of A.P., 1987 (Sup) SCC 172 and of a Coordinate

Bench of this Court in the case of Tejiwinder Singh vs. State of Punjab

reported as 2009 (5) RCR (Crl.), 526.

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Adverting to facts in hand, for considering the prayer made on

behalf of the petitioner /appellant, it is deemed apposite to notice that the

petitioner has been facing the agony of protracted trial since 2012, he has

been convicted for the offence punishable under Section 336 IPC for which

three months simple imprisonment has been awarded to him, however, as

per the custody certificate, it is evident that he has already undergone 1

year 4 months and 24 days during the trial itself, way more than the

prescribed punishment for offence under Section 336 IPC, for which

maximum sentence prescribed is three months.

In the cases of B.S. Narayanan and Tejwinder Singh (supra),

both were also government employees involved in criminal cases and were

convicted but released on probation of good conduct.

Further in Chuni Lal vs. State of Haryana reported as 2006

(1) RCR (Crl.) 844, the Court was pleased to observe that accused may be

released on probation on following grounds:

"(i) having remained on bail for sufficiently long time;

(ii) accused not previous convict and did not indulge in any criminal activity during the post conviction period;

(iii) faced agony of trial for a considerable long time and

(iv) being a sole bread earner.

In the case of Roshan Lal vs. State of Punjab 2006 (1) RCR

(Crl.) 795, the occurrence being 17 years old, the accused was released on

probation.

A reference in this regard is required to be made to Section 12

of the Probation of Offenders Act, 1958, which reads thus:-

                   "12.    Removal          of   disqualification   attaching   to


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conviction .- Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:

Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence."

Nothing has been brought out in the present case by the learned

State counsel that the petitioner/ appellant was a previous conviction or had

indulged in any criminal activity during the post conviction period or that

he had ever misused the concession of bail. In fact, the learned counsel for

the petitioner/ appellant had submitted that the petitioner /appellant is the

sole bread winner of the family and will abide by all conditions, which may

be imposed. In the peculiarity of the facts and circumstances of this case as

also in view of the judgments afore referred, the petitioner / appellant

deserves to be released on probation of good conduct.

Accordingly, the petitioner/ appellant be released on his

furnishing a bond of good behaviour for one year with one surety to the

satisfaction of the Duty Magistrate/ CJM concerned under the Probation of

Offenders Act, 1958. He will during his probation period, he will keep the

peace and be of good behaviour.

Disposed of accordingly.

28.9.2022                                         (AMAN CHAUDHARY)
gsv                                                    JUDGE

Whether speaking/reasoned                   :        Yes / No
Whether reportable                          :        Yes / No




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