Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(P&H) 137

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Sumeet Goel, J.
Sunny Bajwa – Appellant
Versus
State of Punjab – Respondent
CRM-M No. 15740 of 2021
Decided On : 01-04-2024

Advocates appeared:
For the Parties : Mr. Ranjan Lakhanpal, Mr. Adhiraj Singh AAG, Punjab, Mr. Nitin Rathor, Mr. K.K. Gupta

The main legal point established in the judgment is that the power under Section 311 of the Code of Criminal Procedure, 1973 should be exercised judiciously and not arbitrarily, with the aim of finding out the truth and obtaining proper proof for a just and correct decision of the case.

Headnote:
Section 311 - Application for re-examination of victim and necessary protection - Code of Criminal Procedure, 1973, Section 165, Indian Evidence Act, 1872, Section 311; Karamjit Singh vs. State of Punjab and another, Neutral Citation No.2024:PHHC:024178; Rajaram Prasad Yadav vs. State of Bihar and another, 2013(14) SCC 461; Khatta Singh vs. C.B.I. Chandigarh and others, 2018 (3) RCR (Criminal) 708 - The court dismissed the application under Section 311 of the Code of Criminal Procedure, 1973 for re-examination of the victim and necessary protection, and upheld the impugned order dated 08.03.2021 passed by Special Judge, SAS Nagar, Punjab.
Fact of the Case:

The petition was filed under Section 482 of the Code of Criminal Procedure, 1973, challenging the dismissal of an application under Section 311 of the same Code for re-examining the victim and providing necessary protection to her and her family. The victim's statement in a case involving charges of rape and threats was declared hostile, and an application for re-examination was filed, which was dismissed by the trial court.
Finding of the Court:

The court found that the application for re-examination did not inspire confidence due to material discrepancies in the version mentioned in the application and the statements given to the police. The court also noted that the allegations made by the petitioners regarding threats were found to be false. Consequently, the court upheld the dismissal of the application under Section 311 of the Code of Criminal Procedure, 1973.
Issues: The prime issue was whether the application filed under Section 311 of the Code by the petitioners ought to be allowed, and the analogous legal issue was who is entitled to file/maintain an application under Section 311 of the Code.
Ratio Decidendi: The court's decision was based on the analysis of the statutory provisions of Section 311 of the Code of Criminal Procedure, 1973 and Section 165 of the Indian Evidence Act, 1872, along with relevant case law. The court emphasized the essentiality of evidence for the just decision of the case and the need for exercising the power under Section 311 judiciously and not arbitrarily.
Final Decision: The present petition was dismissed, and the impugned order dismissing the application under Section 311 of the Code of Criminal Procedure, 1973 was upheld.

Judgment

Mr. Sumeet Goel, J.

The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 laying challenge to the order dated 08.03.2021 passed by Special Judge, SAS Nagar, Punjab whereby application; filed under Section 311 of Code of Criminal Procedure, 1973 (hereinafter to be referred as the ‘Cr.P.C.’), for re-examining the victim/PW-2 as also for providing necessary protection to her as also her family, has been dismissed.

Factual backdrop

2. A FIR bearing No.78 dated 22.08.2020 came to be registered at Police Station Kurali, District SAS Nagar, Punjab under Sections 376/506/120-B of IPC and Section 6 of POCSO Act, 2012 and Section 67-B of I.T. Act (added later on), relevant whereof reads as under:-

“Copy of statement of Parminder Kaur wife of Sarabjit Singh resident of House No. 548 ward No. 12 Singhpura Road Kurali, presently tenant of Indira Rani wife of Pal Singh, resident of ward No. 9 Kurali, Police Station City Kurali, District SAS Nagar, age around 44 years. Mobile No. 95923-75665 state that I am resident of the abovementioned address. I am working at a canteen at Focal Point Chanalon Plot No. 18. I was married to Sarabjit Singh son of Avtar Singh, resident of House No. 548 ward No. 12 Singhpura Road Kurali during the year 2004. Out of this wedlock I have three children. My eldest daughter is Ravneet Kaur she is around 14 years and 7 months old, Younger to her is my daughter Deepti age around 12 years. Younger to her is my son Yuvraj, age around 5 years. My eldest daughter Ravneet Kaur is studying in matric at National Public School Morinda Road Kurali. House No. 548 is our ancestral house. In this house my parents and my three children stay with their paternal grandparents. On date 22.03.2020 due to promulgation of lock down my younger brother-in-law Dharminder Singh, who is serving in army has been posted to Asam, he availed his leave and on 17.06.2020 returned to re-join his army unit. His family also came and started living with my in-laws. Today my daughter Ravneet Kaur intimated me that in between 18.06.2020 to 22.06.2020 her aunt Nimo Kaur called her male friend to her house at 12:30 AM in the night time. At that time her grandparents were not present at their house. Then my aunt woke me up and asked me to bring cold drink. Though I declined but my aunt pressed me to bring cold drink in three glasses. I brought cold drink then my aunt mixed some intoxicant in my cold drink glass. After consuming this cold drink I became unconscious. When I regained consciousness I noticed that my clothes were drenched in blood. When I enquired this incidence from my aunt then my aunt intimated me that she has filmed my video. She threatened me that if I disclose this incidence to anyone then they (my aunt and her male friend) will eliminate me. Due to this threat I was scared. My aunt Nimo Kaur threatened me and sent me along with her male friend to different hotels at Kharar and Mohali and got me raped me by that person many times without my consent. I was too much scared that I could not disclose this to any of my family members or our relatives. My daughter often remained perplexed. I repeatedly enquired the reason from her. Then she disclosed the abovementioned incidence to me. She intimated that she can recognise that person if she see him. Today I along with my daughter Ravneet Kaur was going to the Police Station to get our complaint registered. You have met me near Singhpura Stadium Kurali. Action should be taken. I have got registered my statement on your laptop. I have read it, same has been read over to me and it is correct. Action should be taken. Statement made by Sd/- Parminder Kaur”

2.1. Investigation was thereafter carried out and challan (report under Section 173 of Cr.P.C., 1973) was presented against accused namely Nimmo Kaur and Parvinder Singh. During the course of trial proceedings, testimony of the complainant (mother of the victim) namely Parminder Kaur was recorded on 19.