Tirathraj Tiwari vs State Of U.P. & Another
2014 Latest Caselaw 305 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 17
 
Case :- CRIMINAL REVISION No. - 288 of 2009
 
Revisionist :- Tirathraj Tiwari
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- S.K. Dubey
 
Counsel for Opposite Party :- Govt. Advocate,Ajeet Kr. Singh
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

Case called out in the revised list. None is present on behalf of revisionist to press this revision.

Learned counsel for respondent No. 2 and learned AGA are present.

Heard and perused the records.

Learned counsel for respondent no. 2 submits that in the present revision, the sole revisionist Tirathraj Tiwari has died and no one is appearing to prosecute this revision, so this revision be dismissed for want of prosecution. In this respect, learned counsel has drawn the attention of this court to the report dated 22.5.2012 of Addl. Sessions Judge/Special Judge, E.C. Act, Jaunpur which shows that the revisionist Tirathraj Tiwari has died on 17.9.2011.

The order sheet shows that by the order dated 9.4.2012, this Court had called for a report regarding the death of revisionist Tirathraj Tiwari. In compliance of the order, the learned Addl. Sessions Judge/E.C. Act, Jaunpur sent a report on 22.5.2012 along with the report of police station concerned and the certificate of Gram Pradhan to the effect that revisionist Tirathraj Tiwari has died on 17.9.2011.

However, keeping in view the legal position that a revision can neither be dismissed for want of prosecution nor it can be abated on death of the sole revisionist, but it has to be decided on merits, I am deciding this revision on merits after perusing the records and after hearing learned counsel for opposite party no.2 and learned AGA.

This revision has been preferred against the order dated 15.10.2008 passed by Special Judge/E.C. Act in S.T. No.170 of 1993 arising out of Case Crime No.59 of 1992 under Sections 147, 148, 149, 302, 324, 307 and 504 IPC P.S. Khutahan, District Jaunpur whereby the court below has rejected the application No.473-Kha of the applicant and has refused to consolidate and hear the cross case of the revisionist along with Session Trial No.170 of 1993 which was already pending in his court.

Some background facts in brief are that opposite party no. 2 lodged a First Information Report against the revisionist at Police Station Khutahan, District Jaunpur on 30.4.1992 which was registered as Case Crime No.59 of 1992 under Sections 302, 307, 147, 148, 149, 324 and 504 IPC. The police investigated the matter and submitted charge sheet against 11 accused persons including the revisionist on 24.5.1992. The case was committed to the Sessions Court for trial and was registered as Session Trial No.170 of 1993. The charges were framed, the trial commenced and when the case (S.T. No.170 of 1993) was at the concluding stage of defence evidence, an application No.473-Kha was moved by one of the accused Bishun Chandra with a prayer to stay the further proceedings of Session Trial No.170 of 1993, till the committal of a complaint case pending between Bishun Chandra vs. Sheetla Prasad alleging the said complaint case to be a cross case of Session Trial No. 170 of 1993.

Para 7 of memo of the instant revision discloses that regarding the same incident dated 30.4.1992, the revisionist had also lodged a cross case by means of an application under section 156(3) Cr.P.C. against opposite party no. 2 and his associates but the police did not take any action on the order passed on such application and did not lodge any FIR against opposite party no. 2.

The revisionist then filed a complaint case before the Chief Judicial Magistrate, Jaunpur, and the Court after recording the statement of witnesses under Section 200 Cr.P.C. issued summons against opposite party no. 2 on 14.9.2007. Against the aforesaid summoning order, opposite party no. 2 preferred a criminal misc. application No.27324 of 2007 before the High Court, The High Court, by its order dated 16.11.2007 stayed the further proceedings of that complaint case. The revisionist moved an application No.473-Kha before the court below with prayer that the further proceedings of Session Trial No.170 of 1993 be stayed due to the reason that proceedings of its cross case (complaint case) has been stayed by the High Court but the lower court by the impugned order dated 15.10.1998 rejected the application.

By means of this revision, the aforesaid order has been challenged by the revisionist mainly on the ground that complaint case and its cross case should be tried and disposed of jointly together by the same court, but the court below without keeping in view the aforesaid legal position rejected the application in an arbitrary manner.

The respondent no. 2 has filed counter affidavit and has contested the matter on the ground that after about 14 years of the alleged incident, a complaint case no.4422 of 2006 was filed by the revisionist only with a view to harass the respondent no.2 and his family members on total incorrect and false allegations. The learned Magistrate, without considering that after a lapse of 14 years of occurrence, the complaint case has been filed, mechanically proceeded with the complaint by recording the statements of complainant under Section 200 of Cr.P.C. and summoned the respondent no.2. As per the counter affidavit the complaint case was filed by the revisionist only with a view to avoid and frustrate the proceedings of Session Trial No.170 of 1993. The High Court, after considering the fact that the complaint case has been lodged after 14 years with malafide intention, has rightly stayed the proceedings of complaint case No.4422 of 2006 and the lower Court has also rightly rejected the application moved by the revisionist by its order dated 15.10.2008. So there is no need to interfere in the aforesaid order and the revision is liable to be dismissed.

The record shows that learned lower court while passing the impugned order has clearly observed that the proceedings of Session Trial No.170 of 1993 are pending at the concluding stage of hearing the arguments whereas the proceedings of complaint case are at the very initial stage of issuing summons. Moreover, further proceedings of the complaint case has been stayed by the Hon'ble High Court so there is hardly any possibility of hearing of the complaint case in near future and only on the basis of the law laid down by the High Court in the case of Mangal Singh vs. State of U.P. 1982 ACC page 354, the proceedings of any case cannot be stayed for an indefinite period. On the aforesaid grounds the learned lower court therefore rejected the application No.473-Kha by the order impugned.

It is worth mentioning that after filing the revision, the revisionist moved an application for stay of further proceedings of Session Trial No.170 of 1993 and by the order dated 25.2.2009, this Court stayed further proceedings of Session Trial No.170 of 1993 which was pending at the ripe stage of hearing the arguments at that time.

The counter affidavit filed by respondent No. 2 clearly shows that the complaint case was filed by revisionist after expiry of about 14 years of the occurrence. There is no rejoinder affidavit against the above said fact mentioned in the counter affidavit. It appears that after obtaining the stay order dated 25.2.2009, the revisionist did not bother to appear in this case not even to file rejoinder affidavit. Now the revisionist has died and no one is appearing on his behalf to prosecute the case.

Considering all these facts and circumstances of this case, I am of the considered view that the so called cross case /complaint case which has been filed after a lapse of 14 years from the date of occurrence cannot be said to be a cross case of Session Trial No.170 of 1993. Therefore, it was not necessary for the Trial Court to decide both the cases jointly together. The learned Trial Court has rightly rejected the application No.473-Kha vide impugned order and no interference is warranted by this Court in it. The revision appears to be without any force. It is liable to be dismissed and is, hereby, dismissed.

It is distressful to note that by means of this revision, the revisionist was successful in prolonging the proceedings of S.T. No.170 of 1993 for about six years with the help of a stay order granted by this Court. Learned counsel for opposite party no. 2 prays that the stay order be vacated and Trial Court be directed to conclude the trial expeditiously in a time bound period.

As this revision has been dismissed, the stay order dated 25.2.2009 is vacated.

The court concerned is directed to expedite the hearing of Session Trial No.170 of 1993 which is pending at the ripe stage of hearing the arguments since long and to conclude the trial preferably within a period of three months.

A copy of this order be sent immediately to the Registry concerned for onward communication to the court concerned by Fax and also by normal means.

Order Date :- 28.3.2014

Ps.