ORDER
1. This criminal revision has been brought against the order dated August 21, 1981 of Metropolitan Magistrate, New Delhi by which he directed the summoning of the petitioners as accused in a complaint case filed by respondent for offences punishable under section 323, 342 read with Section 34 of the Indian Penal Code.
2. The legal question raised in this criminal revision is to the effect that whether a Magistrate even after accepting the final report filed by the police still can take cognizance of an offence upon a compliant or a protest petition on the sum or similar allegations of the facts already stand now decided by the Supreme Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, 1983 SCC (Crl) 110 in a very short judgment given by the Supreme Court in which it has been laid down that the High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report.
3. The case of the petitioner, in brief, is that the petitioner and his family members were subjected to beating by respondent and his brother when the respondent and his brother had committed trespass in their premises whereas the case of the respondent set up in the complaint is that while he was passing in front of the premises of the petitioners, he was dragged inside the said premises and was given beating. Two cases were registered by the police vide FIR 296 of 1979 lodged by the petitioner and FIR No. 295 of 1979 lodged by the respondent's wife.
4. The police had given a final report in respect of both these FIRs by virtue of which the respondent and his brother were prosecuted and I am told that they have been convicted in the said case whereas the Magistrate accepted the report of the police in respect of FIR lodged by respondent's wife and cancelled the said F.I.R.
5. It is not the case of the petitioners that the Magistrate had accepted the report of the police in respect of the FIR got registered by respondent's wife in respect of the same occurrence after giving any notice to respondent or respondent's wife.
6. The respondent had filed a complaint after the Magistrate had accepted the police report cancelling the FIR and after recording preliminary evidence, the Magistrate had passed the impugned order of summoning the petitioners.
7. It appears that at the time the criminal revision was admitted, there was some doubt about the legal proposition whether the Magistrate can take cognizance of the offence on the basis of the complaint when earlier Magistrate had passed a judicial order in not taking cognizance of the offence for accepting the police report that no offence is made out on the basis of the FIR registered by the police. But already mentioned above, this legal position is no longer in dispute in view of clear pronouncement made by the Supreme Court on this point. At any rate, the judgment now being cited before me by the learned Counsel for the petitioner Uma Shanker Singh v. State of Bihar, 1981 Cri LJ NOC 118 decided by a single Judge of the Patna High Court stands clearly overruled by a Division Bench of the same High Court in Munilal Thakur v. Nawal Kishore Thakur, 1985 Cri LJ 437. A Division Bench of the said High Court has discussed all the previous cases dealing with the subject and following the judgment of the Supreme Court given in Bhuneshwar Prasad Sinha (1983 SCC (Cri) 110) (supra) has held now that the Magistrate is not legally debarred from taking cognizance of the offence on the basis of the complaint or protest petition on same or similar allegations of the fact which were subject-matter of the investigation by the police on the basis of the FIR registered by the police and even though the Magistrate had earlier accepted the final report of the police. So, following the judgment of the Supreme Court and which has been followed by the Division Bench of the Patna High Court, I hold that despite the fact that Magistrate had earlier accepted the final report of the police in respect of the FIR in question, the Magistrate was not legally debarred from taking cognizance of the offence on the basis of the complaint filed by respondent may be on similar facts and allegations which were subject-matter of investigation by the police on the basis of the FIR.
8. The learned Counsel for the petitioner has half heartedly contended that since the Magistrate had accepted the version of the petitioners while convicting the respondent and his brother in respect of the same occurrence the result is that the version given by the respondent which is subject-matter of the complaint stood disbelieved and no useful purpose would be served by putting the petitioners on trial on the said version of the respondent regarding the same occurrence. The principle of res judicata is not applicable to criminal cases. The evidence led in one case cannot be taken note of or considered in the other case. Even in the cross cases they have to be independently decided on the evidence being led independently in the cross cases. This law also stands settled by the pronouncement of the Supreme Court in Mitthulal v. The State of Madhya Pradesh, 1975 SCC (Cri) 93 : (1975 Cri LJ 236). It was laid down by the Supreme Court that it is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at a decision. Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible. In Kalu v. The State, a single Judge of the said High Court has also laid down that the finding in the counter case is not a legally admissible evidence in the other case. It was observed that the finding being arrived at on a consideration of the evidence in that case cannot be accepted as evidence in the other case. No judgment to the contrary has been brought to my notice.
9. In view of the above discussion, I hold that the judgment given in the other case is of no effect in deciding the complaint of the respondent in which the petitioners have been summoned. I find no merit in this petition which I hereby dismiss. The order staying the proceedings in the trial Court now stand vacated. The file of the trial Court be returned immediately to the trial Court for further proceedings.
10. Petition dismissed