Ranendra Pal Singh & Another vs State Of U.P. & Another
2015 Latest Caselaw 732 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.21						 AFR
 

 
								Reserved on 18.03.2015
 
								Delivered on 28.05.2015
 

 
		1. CRIMINAL REVISION NO.50 OF 2015
 

 
1.	Ranendra Pal Singh
 
2.	Sushil Kumar Ojha				....... Revisionists
 
			Versus 
 
1.	The State of Uttar Pradesh
 
2.	Shri P.N. Singh Yadav, the then General Manager, 
 
	LACCFED, Head Office: 29 Kabeer Marg, Lucknow 
 
	(Complainant/ Informant)    	
 
					  	   .......  Opposite parties 
 
				ALONG WITH 
 

 
		2. CRIMINAL REVISION NO.49 OF 2015
 

 
	Prabhat Kumar Bajpayee aged about 46 years 
 
	son of Ram Kumar Bajpayee, Resident of House No.117/
 
	Q/67, LIC Colony, Sharda Nagar, Police Station Sharda Nagar, 
 
	District Kanpur, Uttar Pradesh. The then Executive Engineer, 
 
	LACCFED, Lucknow 
 
							....... Revisionist 
 
					Versus
 
1.	The State of Uttar Pradesh
 
2.	Shri P.N. Singh Yadav, the then General Manager, LACCFED
 
	Head Office: 29 Kabeer Marg, Lucknow 
 
	(Complainant/Informant)
 
							........ Opposite parties
 
					AND
 

 
		3. CRIMINAL REVISION NO.51 OF 2015
 

 
	Satyendra Bahadur Singh aged about 58 years 
 
	son of Late Sangram Singh, Permanent address: 
 
	Village Bhundi Tikari, P.S. Mohania, District Kaimur, 
 
	State of Bihar. 
 
	Present Address: 1, Dwarkapuri, Police Station Ismailganj, 
 
	Indira Nagar, District Lucknow, Uttar Pradesh. 
 
	The then Executive Engineer, LACCFED, Lucknow 
 
							....... Revisionist
 
					Versus 
 
1.	The State of Uttar Pradesh
 
2.	Shri P.N. Singh Yadav, the then General Manager, LACCFED
 
	Head Office: 29 Kabeer Marg, Lucknow 
 
	(Complainant/Informant)
 
							........ Opposite parties
 
					AND
 

 
		4. CRIMINAL REVISION NO.90 OF 2015
 

 
	Awadhesh Kumar aged about 51 years son of Asharfi Lal, 
 
	Permanent Address: Village Tendua, Post Mallawa, District 
 
	Hardoi, Uttar Pradesh. Present Address: House No.511 Gha-I, 
 
	Krishna Nagar Colony, District Lucknow Uttar Pradesh. 
 
	The Assistant Engineer LACCFED, Lucknow 
 
							........... Revisionist
 
				Versus 
 
1.	The State of Uttar Pradesh
 
2.	Shri P.N. Singh Yadav, the then General Manager LACCFED
 
	Head Office: 29 Kabeer Marg, Lucknow 
 
	(Complainant/Informant)			........ Opposite parties
 

 
				AND
 
 		5. CRIMINAL REVISION NO.91 OF 2015
 

 
1.	Dharmendra Kumar Tripathi aged about 43 years 
 
	Son of Shri Girija Shanker Tripathi, House No.161/194
 
	Goraksha Nagar, Police Station Cantt. District Gorakhpur
 
	Uttar Pradesh. The then Junior Engineer LACCFED, Lucknow
 
2.	Manoj Kumar Tiwari aged about 45 years son of Sri Anirudha 
 
	Tiwari, Resident of House No.8/4, Labour Colony, 
 
	Mohaddipur, District Gorakhpur, Uttar Pradesh. The then 	Junior
 
	Engineer LACCFED, Lucknow 
 
				Versus 
 
1.	The State of Uttar Pradesh 
 
2.	Shri P.N. Singh Yadav, the then General Manager, LACCFED
 
	Head Office: 29 Kabeer Marg, Luckow 
 
	(Complainant/ Informant)
 
							....... Opposite Parties
 
					AND
 

 
 		6. CRIMINAL REVISION NO.92 OF 2015
 

 
	Pramod Kumar Singh aged about 43 years 
 
	Son of Late Kedar Nath Singh, Resident of 
 
	Village Karjahi, Post Karjahi, District Deoria, 
 
	Uttar Pradesh. Then then Executive Engineer, 
 
	LACCFED, Lucknow 			....... Revisionist
 
					Versus 
 
1.	The State of Uttar Pradesh 
 
2.	Shri P.N. Singh Yadav, the then General Manager, LACCFED
 
	Head Office: 29 Kabeer Marg, Luckow 
 
	(Complainant/ Informant)			....... Opposite Parties
 
					AND
 

 
 		7. CRIMINAL REVISION NO.93 OF 2015
 

 
	Pranay Kumar Tripathi aged about 37 years 
 
	Son of Sri Rajni Kantmani Tripathi
 
	Permanent Address: Village Lakshirampur, Post Hirpathi, 
 
	District Azamgarh, Uttar Pradesh. 
 
	Present Address: Sector-11, Takrohi, Hanumant Nagar, 
 
	Lucknow. The then Executive Engineer, LACCFED, Lucknow
 
							      ........ Revisionist 
 
					Versus 
 
1.	The State of Uttar Pradesh 
 
2.	Shri P.N. Singh Yadav, the then General Manager, LACCFED
 
	Head Office: 29 Kabeer Marg, Luckow 
 
	(Complainant/ Informant)
 
							....... Opposite Parties
 

 
					AND
 

 
 		8. CRIMINAL REVISION NO.95 OF 2015
 

 
	Ram Kishore Mishra aged about 61 years 
 
	Son of Late Babu Ram Mishra, 
 
	Resident of C-83, Rajeev Nagar, Kalyanpur
 
	(Near Picnic Spot), Lucknow
 
							....... Revisionist
 
					Versus 
 
1.	The State of Uttar Pradesh 
 
2.	Shri P.N. Singh Yadav, the then General Manager, LACCFED
 
	Head Office: 29 Kabeer Marg, Luckow 
 
	(Complainant/ Informant)
 
							....... Opposite Parties
 
					AND
 

 
 		9. CRIMINAL REVISION NO.99 OF 2015
 

 
	Omkar Singh son of Late Jaipal Singh
 
	Resident of Village Sarai, Post Office Mustafabad, 
 
	Police Station Shivala Kalan, District Bijnor
 
							...... Revisionist
 
			 		Versus 
 
1.	State of U.P. through Principal Secretary, Home Department 
 
	Government of U.P., Civil Secretariat, Lucknow  
 
2.	P.N. Singh Yadav, the then General Manager LACCFED
 
	29 Kabeer Marg, Lucknow 
 
							.......  Opposite Parties
 

 
					AND
 

 
		10. CRIMINAL REVISION NO.121 OF 2015
 

 
	Neeraj Khare son of Late Onkar Prasad Khare
 
	Resident of B-1/88, Sector-G, Aliganj
 
	Police Station Aliganj, District Lucknow 
 
							..........  Revisionist 
 
				Versus
 
1.	State of U.P. through Principal Secretary, Home Department 
 
	Government of U.P., Civil Secretariat, Lucknow  
 
2.	Shri P.N. Singh Yadav, the then General Manager LACCFED
 
	29 Kabeer Marg, Lucknow 
 
							.......  Opposite Parties. 
 
				AND
 

 
		11.CRIMINAL REVISION NO.127 OF 2015
 

 
	Rajesh Kumar Singh son of Prabal Pratap Singh
 
	Resident of 631 Ka/27 Insaf Nagar, Indira Nagar, 
 
	P.S. Ghazipur, District Lucknow
 
							.......  Revisionist
 

 
				Versus 
 
1.	State of U.P., through Principal Secretary (Home), Civil 
 
	Secretariat, Lucknow 
 
2.	Shri P.N. Singh Yadav, the then General Manager LACCFED
 
	(Labour and Construction Co-operative Federation), 
 
	Head Office 29 Kabeer Marg, Lucknow
 
							........ Opposite Parties
 

 
				AND
 

 
		12. CRIMINAL REVISION NO.162 OF 2015
 

 
	Siddh Nath Rai aged about 45 years 
 
	son of Sri Goverdhan Rai, Resident of 
 
	Village and Post Pali, P.S. Kasmabad, 
 
	District Gazipur				....... Revisionist
 
	
 
				Versus 
 
	State of U.P. 				......  Opposite party. 
 
		
 
Counsel for the Revisionists: Sri P. Chakravarty, Vinod Kumar Shahi, Mithila Bakhsh Tiwari, Satendra Kumar (Singh), Abhishek Misra, Qazi Sabihur Rahman, Mohd. Ali Shaf Faruqi, Rajesh Misra, Sayed Weqar Husain, Aftab Ahmad, Manjeet Singh
 
Counsel for the Opposite Parties: AGA
 
Hon'ble Vishnu Chandra Gupta, J
 

 
					JUDGEMENT

By means of the aforesaid criminal revisions, under Section 397 read with Section 401 of Cr.P.C., the order dated 07.02.2015 passed by learned Special Judge, Prevention of Corruption Act, in Criminal Case No.4-B of 2012 (State of U.P. Vs. Ram Kishore Mishra and others) arising out of Case Crime No.64 of 2012 has been challenged whereby the application under Section 319, Cr.P.C. moved by the prosecution has been allowed and all the named petitioners were summoned under Sections 409, 120-B IPC to face the trial.

The accused persons, who have been summoned by the learned Special Judge under Section 319, Cr.P.C., are as under:

1. Ram Kishore Mishra, the then Executive Engineer, LACCFED.

2. Rajesh Kumar Singh, Engineer, LACCFED

3. Manoj Kumar Tiwari, Engineer, LACCFED

4. Ranendra Pal Singh, Engineer, LACCFED

5. Pramod Kumar Singh, Engineer, LACCFED

6. Satyendra Bahadur Singh, Engineer, LACCFED

7. Prabhat Kumar Bajpai, Engineer, LACCFED

8. Awadhesh Kumar, Engineer, LACCFED

9. Pranai Kumar Tripathi, Engineer, LACCFED

10. Sushil Kumar Ojha, Engineer, LACCFED

11. Omkar Singh, Engineer, LACCFED

12. Neeraj Khare, Engineer, LACCFED

13. Dharmendra Kumar Tripathi, Engineer, LACCFED

14. Siddhi Nath Rai, Engineer, LACCFED

All the aforesaid accused persons challenged the impugned summoning order passed under Section 319, Cr.P.C. by means of the aforesaid criminal revisions. As all the criminal revisions are arising out of same order in same case and almost similar questions of law and facts are involved, hence, the aforesaid criminal revisions are being decided by this common judgment and order.

Brief facts for deciding these criminal revisions are that a first information report has been lodged by Sri P.N. Singh Yadav, General Manager, Uttar Pradesh, Labour and Construction Co-operative Federation Limited (In short 'LACCFED'), 29 Kabir Margh, Lucknow against Govind Saran Srivastava, Chief Engineer and Anil Kumar Agrawal Accountant for embezzlement of Rs.12.36 crores by violating the financial norms. The first information report was lodged on the basis of inspection report. It was alleged in the FIR that LACCFED was nominated by Government of Uttar Pradesh as Government constriction agency to carry out the constructions of standard building costing to the extent of Rs.5.00 crores on the basis of standard prescribed and for construction of non-standard buildings costing to the extent of Rs.2.5 crores. In pursuance thereof, several department of the State Government allocated work to LACCFED and for the said purpose money was provided for completing the project. To complete the project, the cheuqes required to have been issued to the concerned Engineers, which must be account payee. However, by violating the financial norms and rules, Sri Govind Saran, the Chief Engineer and Anil Kumar Jaiswal, Accountant issued bearer cheques in the name of 17 persons named in the first information report. It was alleged that the bearer cheques be also issued without consent of those engineers in whose names the cheque purported to be issued. The engineers in whose names the cheques were issued when asked whether they have received the cheques? They denied the receipt of cheques. It was also alleged that for issuing these cheques, the approval was given by Sri Govind Saran Srivastava, the then Chief Engineer, who retired later on. The allegations made in the first information report are that the named persons actually received the money under the aforesaid cheques and misappropriate the same. The other financial irregularities were also pointed out. The matter was investigated and charge-sheet was filed not only against the named persons in the FIR but also against some of the Ministers of the State Government and other persons. The trial was proceeded and when the same was listed for delivery of judgment, an application under Section 319, Cr.P.C. has been moved by the prosecution to summon the revisionists on the basis of evidence adduced during trial. The application was allowed by the impugned order. After allowing this application, the case of the present revisionists/accused persons was separated and judgment was delivered wherein some persons were convicted and some were acquitted.

By means of these criminal revisions, the impugned order has been challenged on the following grounds:

(1) After passing the impugned order, the case was decided finally against those who were facing trial at the time of passing the impugned orders. Therefore, power conferred under Section 319, Cr.P.C. cannot be exercised as the trial of other co-accused has already concluded.

(2) An application under Section 319, Cr.P.C. has been moved earlier by co-accused Ajay Kumar Dohare to summon 11 Engineers, namely, Ranendra Pal Singh Executive Engineer, Sushil Kumar Ojha Executive Engineer, Pramod Kumar Singh Executive Engineer, Ratnesh Kumar Srivastava, Ram Kishore Mishra Executive Engineer, Neeraj Khare Executive Engineer, Omkar Singh Executive Engineer, Awadhesh Kumar Assistant Engineer, Satyendra Bahadur Singh Executive Engineer, Prabhat Kumar Bajpai Executive Engineer and Pranai Kumar Tripathi Executive Engineer. The application under Section 319, Cr.P.C. moved by co-accused Ajay Kumar Dohare was rejected vide order dated 21.08.2014 on the basis of same evidence which has been considered before passing the impugned order. Consequently, the order impugned is hit by Section 362 of Cr.P.C. and is also against the principle to issue estoppel and doctrine of res judicata

(3) Out of these 14 persons, who have been summoned under Section 319, Cr.P.C., the revisionists Ram Kishore Mishra, Pramod Kumar Singh, Ranendra Pal Singh, Satyendra Bahadur Singh, Prabhat Kumar Bajpai, Awadhesh Kumar, Sushil Kumar Ojha were examined as witness in the same trial against the other co-accused, therefore, they cannot be summoned.

(4) All the accused persons are still serving as public servant but they have not been summoned under the provisions of Prevention of Corruption Act (in short 'PC Act') so the learned Special Judge cannot try the present revisionists for the offences under Sections 409, 120-B IPC only and they could be tried only by a regular criminal court and as such the cognizance taken under Section 319, Cr.P.C. is illegal.

(5) Admittedly no prosecution sanction has been accorded by the competent authority against the revisionists for prosecution so the order of taking cognizance under Section 319, Cr.P.C. without previous sanction under Section 19 of PC Act or under Section 197, Cr.P.C. would be nullity.

On the contrary, it has been submitted by learned A.G.A. that in view of the law laid down by the Apex court in Shashi Kant Singh Vs. Tarkeshwar Singh; (2002) 5 SCC 738 if the trial of co-accused is concluded, the order passed under Section 319, Cr.P.C. summoning additional persons to face the trial could not nullify or make the said order infructuous.

The similar view has also been taken by the Apex Court in Rajendra Singh Vs. State of U.P. and another; (2007) 7 SCC 378.

It has also been contended that there is no impediment in passing an order under Section 319, Cr.P.C. against a witness because as per the provisions of Section 319, Cr.P.C. word "any person" has been used which include witness too.

It has also been contended that there shall be no application of Section 362, Cr.P.C. in respect of interlocutory orders passed during the pendency of trial. Deciding an application under Section 319, Cr.P.C. is an intermediary orders and, therefore, the principal of issue estoppel or res judicata would not apply.

It has also been submitted that when court passes an order under Section 319, Cr.P.C., the order cannot be set at naught on the ground that the court is a special court meant for trial for the offences falling under PC Act.

It has also been contended that when an illegal act is done by a public servant neither the provisions of Section 19 of PC Act nor Section 197, Cr.P.C. would be attracted.

It has also been contended that at the most, these questions may be raised by the accused persons before the trial court and the trial court after examining the facts may take decision on these issues.

In view of the submissions raised by learned counsel for the parties, three vital questions arise for consideration, which are as follows:

(I) Whether an order passed under Section 319, Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded?

(II) Whether the order impugned is hit by Section 362, Cr.P.C. or by principal of issue estoppel or res judicata

(III) Whether the revisionists, who are witnesses in this case, could be summoned under Section 319, Cr.P.C.

Question No.1

So far as the first question is concerned, the Apex Court in Shashikant Singh Vs. Tarkeshwar Singh; (2002) 5 SCC 738 has considered the similar question. Para 9 of the said judgement is quoted below for ready reference:

"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."

The view propounded in Shashikant Singh's case (Supra) was again considered by a three Judges Bench of the Hon'ble Supreme Court in Rajendra Singh Vs. State of U.P. and another; (2007) 7 SCC 378 and affirmed the judgement in Shashikant Singh's case (Supra) as is evident from paragraph 11. Para 11 of the said judgement is extracted below:

"Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh's case (Supra) ....."

Learned counsel for the revisionists draw the attention of this Court towards the judgment passed by this Court in Om Pal Vs. State of U.P. and another; [2012 (3) JIC 503 (All)] wherein this Court in paragraph 10 observed as under:

"10. A bare perusal of the order passed by the learned lower court clearly shows that it has directed that the accused so summoned to be separately tried and separate file be prepared for his trial. It appears that exercise of power under Section 319 Cr.P.C. has been done at the stage of delivery of judgment, learned lower court has failed to take note of necessary ingredients that there must be pendency of trial and the evidence adduced must create impression to the court that it appears that the accused so called is involved in the offence and he is to be tried with other accused and trial is pending. As such, the exercise of power under section 319 Cr.P.C. has not been made at appropriate stage of trial."

In view of the law laid down by the Apex Court, which has not been considered in Om Pal Singh's case (Supra), cannot be said to be a binding precedent and the same is not extending any help to the petitioner, therefore, I am of the view that mere passing the order under Section 319, Cr.P.C. at the time of conclusion of the trial is not ipso facto make the order passed under Section 319, Cr.P.C. inoperative. Hence, on this score, the impugned order cannot be set aside.

Question No.2

So far as the second question is concerned, in this case, this fact is not disputed that the earlier application under Section 319, Cr.P.C. moved by one of co-accused Ajay Kumar Dohare was dismissed vide order dated 21.08.2014. It is also not denied that the order passed on 21.08.2014 was based on the same material on which the impugned order is based. Normally an application under Section 319, Cr.P.C. if once rejected, will not operate as res judicata to file a subsequent application on additional ground based on additional material but here on the similar material, a subsequent application is given by another party to the lis, so, while deciding the subsequent application, the doctrine of res judicata and doctrine of issue estoppel may be applied.

Learned A.G.A. draw my attention towards a judgement passed by this Court in Criminal Misc. Case (U/s 482, Cr.P.C.) No.1576 of 2012 (Rajesh Kumar Vs. State of U.P. and another) decided on 17.01.2015. The aforesaid judgement deals the doctrine of stare decisis. While considering the legal aspect of stare decisis, the distinction of principle of res judicata has also been discussed therein. Doctrine of stare decisis is some how different from the principle of res judicata. The distinction in between the two has been mentioned at page four of the judgement, which is as under:

" 'Stare Decisis' is only doctrine derived from 'stare decisis et non quieta movere,' which differs from that of doctrine of res judicata in the following ways:

(1) Res judicata applies to the decision in the dispute, while stare decisis operates as to the rule of law involved.

(2) The former binds only the parties and their successors, whereas the latter binds everyone.

(3) Res Judicata applies to all Courts, but stare decisis is brought into operation only by the decisions of higher Courts.

(4) The former takes effect after the time for appeal is past; the latter operates at once. Dias of Jurisprudence, Edn., 1964.

The principles of stare decisis has been considered in several cases by this Court as well by the Hon'ble Supreme Court."

It is not in dispute that during the course of trial, the entire evidence of prosecution was considered. An application under Section 319, Cr.P.C. has been moved by co-accused Ajay Kumar Dohare to summon 11 persons named in the application. The trial court by a detailed order dated 21.08.2014 rejected the application and while rejecting the application, the present Accountant of LACCFED alleges in his application that the engineers to whom he want to implead for summoning as an accused and against whom the amount was shown to be outstanding, is actually nil. It has also been observed by the trial court that in this application of Ajay Kumar Dohare, the witnesses are sought to be summoned as an accused and if the witnesses are arrayed as accused, how they would be the witness against themselves. However, the trial court left open the question to be decided later on and observed that while deciding the case by the court after taking into consideration the entire evidence of prosecution and the defence, if found necessary, may pass an order under sub-section (8) of Section 173, Cr.P.C. for further investigation. In the light of the above observations, the trial court concluded that there is no evidence against whom the application has been moved by applicant Ajay Kumar Dohare for summoning them as an additional accused and as such the application is rejected.

Attention of this Court has been drawn by learned counsel for the revisionists that on similar evidence, the prosecution moved fresh applications under Section 319, Cr.P.C. but the court has reversed his own finding which was passed on the application of Ajay Kumar Dohare.

It is not in dispute that in this case, on similar evidence, learned Magistrate considered the application of prosecution which was under consideration before the court while deciding the application of Ajay Kumar Dohare. While deciding the case admittedly Court has not felt necessary to pass any order under section 173(8) Cr.P.C. Therefore, I find some force in the submissions of the learned counsels for Revisionists.

Now the question for consideration is whether the rule of issue estoppel and res judicata or bar under section 362 Cr.P.C. would be applicable to the facts of the present case?

The rule of issue estoppel and res judicata is not the outcome of any enactment. It has been borrowed from English decision. It must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties for the adjudication.

The rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding of fact has been reached in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for different offence. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous lawful trial. In this respect, the decision of the Hon'ble Supreme Court in Lalta Vs. State of UP; AIR 1970 SC 1331, may be referred to.

The essentials of the rule of issue estoppel are -

(i) the parties in the two proceedings must be same;

(ii) the issue that was decided earlier must be identical with that which is sought to be re-agitated.

Thus, it can be concluded that where an issue has been decided by a competent court on a former occasion, such a finding constitutes an estoppel or res judicata against the parties to that proceedings. It may be clarified here that the principle of issue estoppel would not be applicable if the offence for which accused is to be tried subsequently is a distinct offence.

Therefore, if the above principle of issue estoppel and res judicata is applied to the facts of the present case, it can easily be said that cognizance against the present revisionists on application under Section 319 Cr.P.C. on the basis of evidence recorded in court was not taken by the learned trial Judge and that order of the learned trial Judge dated 21.08.2014 had become final. Meaning thereby the issue whether present revisionists could be added as additional accused persons or not had been decided by the competent court on former occasion and therefore, the findings recorded by the learned trial Judge in favour of those revisionists, who were named in the application and the order dated 21.08.2014 rejecting application under Section 319, Cr.P.C. operate as an estoppel or res judicata against prosecution because the parties in both the stage of proceedings are the same and the issue which was decided earlier is the same and identical. However It is well recognised that the principal of issue estoppel, or res judicata applies only when both the earlier and the present proceedings are Criminal Prosecutions.

Therefore, I am of the view that though, the principal of issue estoppel, or res judicata may not apply to the impugned order but so far Section 362 Cr.P.C is concern that might have been considered by the Court while deciding the present application of prosecution under section 319 Cr.P.C. which the Court has not done in right prospective.

Question No.3

So far as the question no.3 is concerned, it is purely a legal question which has been answered in he light of legal provisions.

Section 132 Of Evidence Act give certain protection to the witnesses foe their prosecution on the basis of evidence adduced by them in a court of law. Section 132 of Evidence Act is extracted below;

" Witness not excused from answering on the ground that answer will criminate.--A witnwss shall not be excused from answering any question as to any matter relevant to the matter in issue an any suit or criminal proceeding, upon the ground that answer to such question will criminate, or may tend directly or indirectly to expose, such witness to a penalty or forfeiture of ant kind.

Provisio.--Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."

The Madras High Court held that if a witness voluntarily answered a question put to him, his answer could be used against him in subsequent proceedings, if he did not object to the question then and there. In Paddabba Reddi v. lyyala Yarada Reddi; AIR 1929 Mad 236 : 1929 (30) Cri LJ 613 the Madras High Court held thus:

"The protection offered by Section 132, Proviso, does not cover any and every answer given by a witness during the course of his trial. The compulsion contemplated in that Section 2 is something more than being put into the witness-box and being sworn to give evidence. The compulsion in the proviso refers to compulsion by Court and not compulsion under law. The witness, of course, need not ask in so many words the protection of the Court. The compulsion may be implied or explicit, and in every case it is a question of fact whether there was or was not compulsion. But a witness who answers a question or questions put to him without seeking the protection of Section 132 by objecting to the question put, and requesting to be excused, is not entitled to that protection."

The Allahabad High Court in several decisions differed from the above view. In Emperor v. Chatur Singh ILR 43 All 92 : AIR 1921 All 362 the Allahabad High Court observed that "although a voluntary statement made by a witness may stand on a different footing, an answer given by a witness in a criminal case on oath to a question put to him either by the Court or by counsel on either side, especially when the question is on a point which is relevant to the case, is within the protection afforded by Section 132 of the Indian Evidence Act, whether or not the witness has objected to the question asked to him." The principle behind the decision is that ordinary lay man unacquainted with the technical terms of Section 132 may think it imperative to answer questions put either by the Court or by the counsel especially when the question is relevant to the case and hence the answer given by a witness under such circumstances is protected by the proviso to Section 132.

The controversy has been set at rest by the decision of the Supreme Court in Delhi Administration v. Jagit Singly; AIR 1989 SC 598, where it has been held as follows:

"Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly. Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. The provisions of proviso to Section 132, Evidence Act, clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly."

In a case where a party to a civil litigation gives evidence, it is possible to presume that he gives the evidence on his own accord. Similarly, if the accused in a criminal case offers himself to be examined as a witness, a presumption may arise that the evidence given by him is voluntary. That would not be the position with regard to the evidence given by a witness summoned by the Court. The answer given by a witness in a Court, whose presence is required by the Court either by issuance of summons or by other means cannot be equated with the answer given by a party in a civil litigation or the statement of an accused as a witness, in a criminal case. The answer given by such a witness cannot be characterised as a mere voluntary statement and without any compulsion.

Revisionists have not voluntarily adduced evidence before the Court. Only on summons they appeared and testified. This is a case where they have been compelled to answer the question. Left to themselves, they would not have come before the Court to depose. A situation in which a witness is placed when he is examined before a Court of law cannot be lost sight of. When a person is examined as a witness his natural feeling is that he has to answer the questions. If during the course of the testimony he gives answer criminating himself, he can really look forward to the protection under the proviso.

The revisionists were examined as witnesses during trial cannot be summoned on the basis of their statements. However, if other evidence is available against them even then a witness can be summoned under Section 319, Cr.P.C. and there would be no impediment in summoning the revisionists because they also come within the ambit of any person.

The trial court by deciding the application of Ajay Kumar Dohare has categorically held that the evidence on record is not sufficient to summon the persons named in his application. The case of the present revisionists is also based on the similar footing with those who were included in the application of Ajay Kumar Dohare. Therefore, it would not proper to summon those revisionists for facing similar trial in which they appeared as a witness against other accused in view of protection contained in proviso to section 132 of Evidence Act .

Having considered all the facts and circumstances of the case and keeping in view the evidence adduced during trial it has to be seen whether the case of those revisionists who were not covered under the application moved by Ajay Kumar Dohare and those who has not been examined as witness could be distinguished with those who are covered by order passed on application of Ajay Kumar Dohre? This question has also not been answered by the Court while deciding the application of prosecution under Section 319 Cr.P.C.

All the revisionists are working in the department as engineers. They were admittedly in the active service of LACCFED and are public servants, no prosecution sanction under Section 19(1) of Prevention of Corruption Act is there to prosecute them nor any prosecution sanction under Section 197, Cr.P.C. is available on record to prosecute them. The Apex Court had an occasion to consider this aspect in Dilawar Singh Vs. Parvinder Singh alias Iqbal Singh and another; (2005) 12 SCC 709, the lordship's of Hon'ble Supreme Court in the aforesaid judgement in paragraph 7 and 8 ruled as under:

"7. In State of Goa Vs. Babu Thomas; (2005) 8 SCC 130 decided by this Bench on 29.9.2005, it was held that in absence of a valid sanction on the date when the Special Judge took cognizance of the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being the settled position of law, the impugned order of the High Court directing summoning of the appellant and proceeding against him along with Jasbir Singh ASI is clearly erroneous in law.

8. The contention raised by learned counsel for the respondent that a Court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence under Section 190 Cr.P.C. The observations made by this Court in Raghubans Dubey v. State of Bihar; AIR 1967 SC 1167 were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim Generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Venkateshwar Rao v. Govt. of Andhra Pradesh AIR 1966 SC 828, State of Bihar v. Yogendra Singh AIR 1982 SC 882 and Maharashtra State Board of Secondary Education Vs. Paritosh Bhupesh Kumar Sheth; AIR 1984 SC 1543). Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.P.C. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person."

On the contrary, learned A.G.A. submitted that the act which has been complained with and on the basis of which the cognizance is taken cannot have any nexus with discharge of official duties. Hence, neither Section 19(1) of PC Act nor Section 197 of Cr.P.C. would be attracted.

Suffice it to say that this was a very vital question to be considered by the trial court while passing the order under Section 319, Cr.P.C. The court admittedly has not considered this vital question while summoning the accused persons to face trial. Therefore, on this score too, the order of Section 319, Cr.P.C. summoning the revisionists cannot be allowed to sustained.

The trial Court has not recorded any finding to the effect in respect of those revisionists who were examined as witness in the trial, that if the evidence of those is excluded in the light of proviso to section 132 of Evidence Act against each of them, whether any other sufficient evidence is available against them to summon under Section 319 Cr.P.C?

Conclusion

Having considered all the facts and circumstances of the case, I am of the view that all the revisions deserve to be allowed.

Accordingly, all the aforesaid revisions are allowed the impugned order dated 07.02.2015 passed by learned Special Judge, Prevention of Corruption Act, in Criminal Case No.4-B of 2012 (State of U.P. Vs. Ram Kishore Mishra and others) arising out of Case Crime No.64 of 2012 is set aside.

The matter is remanded back to the trial Court to reconsider the application of Section 319 Cr. P.C. given by the prosecution and fresh orders be passed after giving opportunity of being heard to the parties concerned keeping in view the observations made in the body of this judgement.

The parties are directed to appear before the trial Court on 02.07.2015.

Dated:28.05.2015

akverma