IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. 20246-M of 2008
DATE OF DECISION: December 04, 2008
Kulwant Kaur & Another
.........PETITIONER(S)
VERSUS
State of Punjab & Others
......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
Present: Mr. Arun Takhi, Advocate,
for the petitioners.
Mr. Shilesh Gupta, DAG, Punjab.
AJAI LAMBA, J. (ORAL)
This petition has been filed by Kulwant Kaur and Kapil
Dev, petitioners no. 1 & 2 respectively under Section 482 Cr.P.C. praying
for issuance of direction to respondents no. 4 to 6 to produce the entire
record pertaining to case FIR No. 90 dated 12.05.2008 under Section 452,
307, 325, 323, 148, 149, 427 IPC, P.S. Sultanpur Lidhi, District Kapurthala
so as to explain as to under what circumstances car make Indigo bearing
registration No. PB-07-Q 3550, of which petitioner no. 2 Kapil Dev is the
registered owner, has been taken in police custody illegally and forcibly
from the possession of petitioner no. 1 after 2-1/2 months of registration of
the FIR.
Crl. Misc. No. 20246-M of 2008 -2-
Having considered the contentions raised in the petition,
notice of motion was issued. Vide order dated 22.11.2008, police record
was required to be produced.
Learned counsel for the petitioners contends that the car
belongs to Kapil Dev, petitioner no. 2. The same was given to petitioner no.
1, a relative. Petitioner no. 1 was visiting her brother namely Bikkar Singh
on 26.07.2008 where the car of the petitioner bearing No. PB-07-Q 3550
was taken in custody by respondents no. 5 and 6 namely Sh. Lakhwinder
Singh Mall, SHO Police Station Sultanpur Lodhi and Sh. Surinder Singh,
Sub Inspector, Police Post Mothawal, Police Station Sultanpur Lodhi who
had come alongwith 7-8 other police officials. The specific ground taken by
the learned counsel for the petitioner is that none of the petitioners is
connected with the offence that forms the basis of registering FIR
mentioned above. The car at issue was not involved in the commission of
the offence in any way either for carrying the alleged offenders or
otherwise. Yet the vehicle has been taken in possession on 26.07.2008.
The record has been produced today and has been
perused with the assistance of Sh. Shilesh Gupta, DAG, Punjab.
I have considered the issue. The statements of the
relevant witnesses have been read in extenso in Court.
It transpires that the FIR was lodged at the instance of
Mohinder Singh son of Teja Singh on 12.05.2008. The statement on the
basis of which FIR has been lodged, does not indicate or mention that the
accused named in FIR alongwith 10/15 persons came by car or that they had
left the spot in the car. Rather the statement clearly states “more people of
Crl. Misc. No. 20246-M of 2008 -3-
the village also got together, other than the above accused while abusing
and raising lalkara ran away from the spot with their weapons.”
It seems that supplementary statement of Mohinder
Singh son of Teja Singh was taken in which also there is no mention of any
vehicle having been used for any purpose. The only other persons who are
shown to have witnessed the incident are Balwant Singh son of Lakshman
Singh, Harbans Singh son of Bhan Singh, Bhajan Kaur wife of Shingara
Singh and Manjinder Singh son of Mohinder Singh, the complainant.
Reading of the statements of Balwant singh, Harbans Singh and Bhajan
Kaur also bring out the fact that car was not used either in bringing the
accused on the spot or for taking away the accused from the spot after the
incident. Rather the statements do not mention the car being anywhere at the
place of incident.
Learned counsel for the respondent-State, on
instructions from HC Satpal Singh, has pointed out that the car finds a
mention in the statement of Manjinder Singh recorded on 13.05.2008. The
reply filed by way of affidavit of Inspector Lakhwinder Singh, SHO P.S.
Sultanpur Lodhi is also to the same effect that the car had been seized vide a
seizure memo dated 26.07.2008 on the basis of statement of Manjinder
Singh son of Mohinder Singh, the complainant.
I have gone through the statement of Manjinder Singh
also.
On a pointed query of the Court, it was revealed by
Head Constable Satpal Singh that statement of Manjinder Singh was also
recorded on 12.05.2008. The statements of Manjinder Singh son of
Crl. Misc. No. 20246-M of 2008 -4-
Mohinder Singh recorded on 12.05.2008 and on 13.05.2008, in vernacular
and in translation form, are taken on record.
In the statement of Manjinder Singh recorded under
Section 161 Cr.P.C on 12.05.2008, the specific stand of the witness is that
the accused, after commission of the offence, ran away. The car has not
been mentioned. It is only in the statement purportedly recorded on
13.05.2008 that the alleged witness Manjinder Singh states that on account
of anxiety on the earlier date i.e. on 12.05.2008, the car was not mentioned
and for the purpose, the supplementary statement is being given.
I have referred to the site plan which was prepared at
the instance of Harbans Singh, one of the witnesses. Even the site plan does
not show the car indicating the place where the car was parked or where
from the accused boarded the car and fled.
In the facts and circumstances of the case, learned
counsel for the respondent has not been able to support the seizure of the car
in the case in hand. Learned counsel has not been able to draw the attention
of the Court towards any other material from the record which would justify
taking the vehicle in possession.
I find that neither the statement which forms the basis of
the FIR nor the statement of either of the persons who could have
knowledge or information in regard to the commission of the crime have
mentioned the car. It is only in the supplementary statement of Manjinder
Singh recorded on 13.5.2008 and that too in its concluding portion that the
car has been mentioned. It becomes evident that the car has been taken in
possession by the investigating agency without there being any legal reason
Crl. Misc. No. 20246-M of 2008 -5-
that could be supported by any material. It is in clear abuse of process of
law that the car was seized.
The supplementary statement of Manjinder Singh under
Section 161 Cr.P.C. was taken by Surinder Singh, Sub Inspector, respondent
No.6 on 13.5.2006. The vehicle was also seized by the same official vide
the seizure memo. I find that the said official i.e. Surinder Singh, Sub
Inspector, has abused the authority vested in him under the Code of
Criminal Procedure in taking the vehicle mentioned above in possession.
The consistent case of all the witnesses is that the accused named in the FIR
alongwith 10-15 other persons came and after the incident, ran away. The
statement of Manjinder Singh taken on 13.5.2008 is clearly without any
basis and is fabricated only so as to seize the vehicle, for malafide reasons
and for reasons that cannot be justified in the investigation of the matter.
I am of the considered opinion that the vehicle at issue
cannot possibly be termed as case property as it is not connected in any
manner in commission of the crime. Admittedly, none of the petitioners is
connected with the incident in any way.
The car would not aid the investigating agency in any
manner or the prosecuting agency in prosecution of the case. I am of the
opinion that so as to prevent the abuse of process of Court, the petition
needs to be allowed. So as to secure the ends of justice, the vehicle is
required to be restored to petitioner No.2, Kapil Dev, the registered owner.
Under the facts and circumstances mentioned above, the
petition is allowed. The car make „Indigo‟ bearing registration No.PB-07Q-
3550 would be returned back to petitioner No.2 within three days on receipt
of certified copy of the order.
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In view of the fact that the respondents have not been
able to give any justification much less reasonable justification to support
the seizure and continuous possession of the car since 26.7.2007, and this
Court having held that the vehicle was seized in abuse of process of law, in
malafide exercise of power of Surinder Singh, Sub Inspector, and in abuse
of authority vested in the said official by the Code of Criminal Procedure, it
is directed that petitioner No.2 would be compensated by way of payment of
Rs.15,000/- for depriving him of the use of the vehicle.
Copy of the order be sent to the Secretary Home, Punjab
and Director General of Police, Punjab to apprise them about the conduct of
the official(s) related with the case so that appropriate action, departmental
or otherwise, can be taken.
(AJAI LAMBA)
December 04, 2008 JUDGE
Shivani/avin