CRM-M-37170-2018(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 170 CRM-M-37170-2018(O&M) Decided on :16.07.2026 Ramesh Kumar and another ......Petitioners Versus State of Punjab and another ......Respondents CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH Present: Mr. ADS Sukhija, Sr. Advocate with Mr. Sukhdee Singh, Advocate for the petitioner. Mr. Vinay Malhotra, DAG, Punjab. None for respondent No.2. **** SANJAY VASHISTH, J.(Oral) 1. Petitioners, namely, Ramesh Kumar and Mandeep Kumar, son of Ramesh Kumar, have filed the present petition challenging the order dated 13.07.2018 passed by the learned Additional Sessions Judge, Fatehgarh Sahib. By the said order, while exercising revisional jurisdiction, the learned Revisional Court reversed the order dated 12.10.2017 passed by the learned Judicial Magistrate Ist Class, Amloh, whereby the application filed by respondent No.2/complainant under Section 216 Cr.P.C. had been dismissed 2. During the trial, charges were initially framed only under Sections 382, 148, 323, 452, 506 and 149 IPC vide order dated 09.11.2012. No charge under Section 395 read with Section 34 IPC or under Section 120-B IPC was framed despite the allegations contained in the complainant's statement recorded during investigation. Thereafter, complainant moved an application under Section 216 Cr.P.C. seeking RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 2 alteration of the charge by incorporating offences under Section 395 read with Section 34 IPC and Section 120-B IPC. Said application was dismissed by the learned trial Court vide order dated 12.10.2017. Aggrieved thereof, the complainant preferred a revision petition before the Court of Sessions, which was allowed by the learned Revisional Court. The relevant findings recorded by the Revisional Court are reproduced below: “7. It is apparent from the findings returned by the ld.trial court recorded in paraNo.5 of the impugned order that prayer for alteration/ amendment of the charge was declined merely on the ground that when the charges were framed on 9.11.2012, no revision or appeal was ever filed by the complainant or the prosecution against the said order. The court seems to have declined the prayer on the simple ground because no appeal or revision ever stood filed against the order dated 9.11.2012, then at the stage when the trial is almost about to conclude the charge cannot be altered. This court is of the confirmed and considered view that the Id.trial court fell in error when it declined the prayer merely on the technical ground that the charge could not be altered as no appeal or revision stood filed against the order dated 9.11.2012 which accordingly attained finality. It is not difficult to understand that if an order is not challenged in any appeal or revision, the same attain finality and so did order dated 9.11.2012 for similar reasons. Assuming the order dated 9.11.2012 attained finality for these reasons, yet it is a well settled principle of law that a charge can be altered or amended at any stage before the judgment is pronounced if the same would facilitate and effective RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 3 adjudication of the matter. This power is available to the court by virtue of mandate of Section 216 of Cr.P.C. This court is of the confirned and considered view that the ld.trial court bade fell in error in understanding the prayer of the complainant and it stood misguided by the mere fact that the order dated 9.11.2012 vide which charge was framed originally attained finality. It is further evident from the impugned order that the trial court did not apply its mind to the contentions of the complaint which lay in the foundation of the prayer. The court did not apply the provisions of Section 395 of IPC to the facts of the case in order to ascertain whether prima facie case under such provisions was made out or not. 8. As a result of the aforesaid discussion, this court is of the confirmed and considered view that the impugned order suffers from infirmity and irregularity. While allowing the revision petition in hand, the impugned order dated 12.10.2017 is set aside. The ld.trial court is hereby directed to apply afresh mind after hearing the parties and perusing the record and decide the application afresh.” 3. After hearing learned Senior Counsel for the petitioners, history of the proceedings and certain relevant facts were recorded by this Court on 15.07.2026, which, for the sake of convenience, are reproduced hereinbelow: “1. Initially, FIR was registered under Sections 382, 452, 342, 323, 506, 147 and 149 of the IPC, at the instance of complainant – Azad Kaushal, vide FIR No.125 dated 02.07.2012, registered at Police Station Gobindgarh Mandi, District Fatehgarh Sahib, by naming four accused persons and also mentioning that, apart from them, there were 4/5 RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 4 other accused as well. Thereafter, the challan was presented only against the four named accused, i.e., (i) Ramesh Kumar, (ii) Mandeep Kumar, (iii) Rishu Sharma and (iv) Satwinder Singh. Charges were also framed only for the offences incorporated at the time of registration of the FIR. 2. After framing of charges and during the pendency of the proceedings, complainant – Azad Kaushal entered into a compromise with two of the accused, namely, (i) Rishu Sharma and (ii) Satwinder Singh. Consequently, a petition for quashing on the basis of compromise, i.e. CRM-M-2506- 2013 (O&M), titled "Rishu Sharma and another v. State of Punjab and another", was filed and, vide order dated 02.03.2013 [Annexure P-5 (Colly.)], a Coordinate Bench of this Court quashed the FIR in question and all consequential proceedings arising therefrom. However, in the original order dated 02.03.2013, it was not clarified whether the FIR stood quashed in its entirety or only qua the petitioners therein. Accordingly, on an application moved by the petitioners therein seeking clarification, it was pointed out that the compromise was only between the complainant and Rishu Sharma and Satwinder Singh alias Bhalwan, whereas there were other accused also facing trial. Accordingly, the Coordinate Bench of this Court, vide order dated 03.07.2018, while correcting the aforesaid inadvertent omission, allowed the application and clarified that the order dated 02.03.2013 shall be deemed to have been passed only qua Rishu Sharma and Satwinder Singh alias Bhalwan (petitioners therein). 3. It is further noticed that during the pendency of the proceedings qua the remaining two accused, complainant, RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 5 without application being forwarded through the Public Prosecutor, moved an application seeking addition of charge under Section 395 of the IPC. However, vide order dated 12.10.2017, said application was dismissed by the learned trial Court. Assailing the said order, complainant preferred a revision petition, which came to be allowed vide the impugned order dated 13.07.2018 (Annexure P-1), whereby matter was remanded to the learned trial Court to examine whether the charges were required to be amended by incorporating Section 395 of the IPC. 4. At this stage, learned State counsel submits that the grievance of the petitioner is that during the course of investigation, neither any fifth accused nor any other unidentified accused, allegedly referred to in the FIR, was ever traced or identified by the Investigating Agency. Thus, merely mentioning in the FIR that there were 4/5 other persons, without subsequently establishing their identity during investigation, would amount to giving an unbridled handle to the Investigating Agency to enlarge the scope of punishment sought to be imposed upon the accused. 5. Learned Senior counsel for the petitioner, while further addressing arguments on the aforesaid issue, prays for a short accommodation. 6. List again on 16.07.2026. Interim order to continue till then. To be shown in the urgent list.” 4. Continuing his submissions, learned Senior Counsel for the petitioners has relied upon the judgment of this Court in Mahabir Singh and others v. State of Haryana, 2023 (2) RCR (Criminal) 811, and RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 6 contends that unless there are at least five identified accused, the essential ingredients of the offence punishable under Section 395 IPC are not satisfied. Consequently, no charge under Section 395 IPC could have been framed. It is, therefore, argued that the order of the learned Revisional Court remanding the matter to the trial Court for reconsideration is legally unsustainable and deserves to be quashed. 5. Per contra, learned State counsel submits that, according to the prosecution case from its inception, the complainant, Azad Kaushal, had specifically alleged that accused-Satwinder Pehlwan, along with four to five unknown persons, had forcibly entered his office and, while brandishing a concealed firearm, restrained him by tying him to a chair with the assistance of the other assailants. Thereafter, he was assaulted and a bag containing cash amounting to Rs.16,32,000/- was allegedly taken away by accused-Mandeep Kumar. It is, therefore, argued that the plea raised by the petitioners is devoid of merit and that the proceedings must continue on the basis of the prosecution version. 6. Although Mr. Rajesh Sharma, learned counsel, had earlier appeared on behalf of respondent No.2, but none appeared today to oppose the submissions advanced on behalf of the petitioners. 7. I have considered the rival submissions addressed by learned counsel for the parties and, with their assistance, have carefully examined the record, including the orders passed by the Courts below. Section 391 IPC, which defines "Dacoity", reads as under: RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 7 “391. Dacoity.— When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit 'dacoity'." Section 395 IPC, which prescribes the punishment for the offence of dacoity, reads as under: "395. Punishment for dacoity.— Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” A conjoint reading of Sections 391 and 395 IPC leaves no manner of doubt that the offence of dacoity is constituted only where five or more persons conjointly commit or attempt to commit robbery. 8. In the present case, the FIR was registered on 02.07.2012. However, after completion of the investigation, the challan was presented only against four accused persons. Learned State counsel was unable to point out any material from the investigation record or any subsequent proceedings demonstrating that, at any stage during the last thirteen years, or even when the learned Revisional Court remanded the matter, any fifth accused was identified or arrayed as an accused. At the same time, it is not disputed by the petitioners that, according to the allegations in the FIR, more than five persons had allegedly participated in the occurrence. RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 8 The difficulty, however, is that the prosecution as never able to identify or trace the alleged fifth accused or any of the other unknown persons referred to in the FIR. Mere allegation by the complainant, even if accepted at face value, cannot by itself establish the existence or identity of a fifth participant so as to attract the ingredients of Section 395 IPC. Criminal liability under the said provision cannot rest upon speculation or unsubstantiated assertions regarding unidentified persons. 9. In Mahabir Singh and others case (supra), while dealing with a similar issue in an appeal preferred by the convicts, this Court considered the legal requirement of the presence of five or more identified participants for sustaining a conviction under Section 395 IPC. Relevant paragraphs reads as under: “20. Other submissions addressed by learned counsel for the appellants, which are based upon the judgments relied upon by him, also give strength to his submissions. There is no other aspect in the matter as without there being proving of gathering of total five persons, the statutory requirement to define dacoity under Section 399 of IPC, would not be fulfilled, and in the absence of same, simple preparation, if any, cannot be said to be for committing of dacoity. 21. During the short hearings on some previous dates of hearing, this Court gave enough opportunities to the State of Haryana to clarify the whereabouts of fifth accused, who is named as Mangal @ Manga. Despite of grant of 5/7 opportunities, no plausible explanation was put-forth, RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 9 rather, one status report dated 01.03.2023 is presented in the shape of affidavit of Ram Kumar, HPS, Assistant Commissioner of Police, Kalka, on behalf of the respondent- State. The said status report says as under:- “1. That the above said case came up for hearing on dated 06.02.2023 before this Hon’ble Court and the Hon’ble Court was pleased to direct “To find out the status of 5th accused – Mangal @ Manga….” and adjourned the case for 01.03.2023. 2. That challan in the present case bearing FIR No.164 dated 06.09.2003 under sections 399/420 of IPC at Police Station Kala was presented against four accused persons. Since 5th accused namely Mangal @ Manga fled away from the spot. 3. That as per police rules, the files of old cases are destroyed after a period of every four years. Subsequently, the file of the present case was destroyed. A copy of Reply from VRK branch O/O Deputy Commissioner of Police, Panchkula annexed as an Annexure – R1. 4. That regarding 5th accused namely Mangal @ Manga, as per information received from the office, neither said accused has been arrested till date nor proceedings qua proclaimed offender has ever been initiated against him. In the view of above mentioned facts the present petition filed by the petitioners may kindly be disposed in the interest of justice.” RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 10 22. Considering the aspect that the case was registered way back on 06.08.2003, after conducting raid, but till date prosecution is unable to explain or even failed to bring any material about the fact that any such person ever existed or if existed, what steps were taken by the prosecution to make their story more reliable i.e. gathering/assembly of five persons at the time of committing raid. Thus, in the absence of same, this Court cannot accept the version of the prosecution that name of the fifth accused is the correct one or not? On the other hand, Ld. State counsel is unable to cite any law to say that preparation of committing robbery would be punishable under the Indian Penal Code (IPC). 23. Thus, in totality of circumstances available on record; taking into consideration the submissions made by both the sides; and relying upon the judgments cited by learned counsel for the appellants; this Court considers it appropriate to allow the appeals, and consequently to acquit the appellants from the charges levelled against them.” 10. This Court also finds merit in another significant aspect of the matter. Had the prosecution itself been satisfied that the material on record disclosed the commission of an offence under Section 395 IPC, it would have been expected to move an application under Section 216 Cr.P.C. seeking alteration of the charge. Significantly, no such application was ever filed by the prosecution. Instead, application was moved solely by the complainant. There is yet another circumstance which deserves due consideration. Complainant/victim himself entered into a compromise with two of the accused, namely, Rishu Sharma and Satwinder Singh @ RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document CRM-M-37170-2018(O&M) 11 Balwan. Consequently, FIR and all consequential proceedings qua the said accused were quashed by this Court vide orders dated 02.03.2013 and 03.07.2013 passed in CRM-M-2506-2013. As a result, only present two petitioners remain to face trial. Having voluntarily compromised the matter with two of the alleged participants, complainant cannot now legitimately seek to prosecute the remaining two petitioners for the offence of dacoity under Section 395 IPC, which, by its very nature, requires the participation of not less than five persons. The effect of such partial compromise on the prosecution case is a matter to be considered at the conclusion of the trial; however, for the limited purpose of the present controversy, it significantly weakens the basis for directing reconsideration of the charge under Section 395 IPC. 11. In view of the foregoing discussion, this Court is of the considered opinion that the impugned remand order dated 13.07.2018, passed by the learned Additional Sessions Judge, Fatehgarh Sahib, is legally unsustainable and cannot be sustained in law. Accordingly, present petition is allowed, and the impugned order dated 13.07.2018 (Annexure P-1) is hereby quashed and set aside. 16.07.2026 (SANJAY VASHISTH) Rashmi JUDGE Whether Speaking/Reasoned: YES/NO Whether Reportable: YES/NO RASHMI 2026.07.17 19:05 I attest to the accuracy and integrity of this document