Tej Singh vs State Of U.P. And Another
2016 Latest Caselaw 6328 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 43
 
Case :- CRIMINAL REVISION No. - 2995 of 2016
 

 
Revisionist :- Tej Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Raghuraj Kishore
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pratyush Kumar,J.

By the instant revision accused-revisionist assails correctness of order dated 22.7.2016 passed by the A.C.J.M. IInd Saharanpur in Criminal Case No.1432/2015 (Jagdish Vs. Prem Singh) whereby application for discharge moved by the revisionist was rejected.

Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

Learned counsel for the revisionist submits that the dispute is essentially of civil nature. In reference to the property in question revisionist filed a Suit No.192 of 1984 against Jagdish for specific performance of contract before the Civil Court. O.P. No.2 filed his written statement and took the defence as stated in the present complaint. The suit was decreed and findings were recorded contrary to what was stated by O.P. No.2 in his complaint.

He has further submitted that this Court in the case of Raunaq Vs. State of U.P., 1987 Cri.L.J.445 when confronted with similar controversy, in para 9 and 10 of the report observed the following:-

"9. It was held in Sarnam Singh v. State 1967 All Cr R 423 that, it would be highly detrimental to the administration of justice and would shake the confidence of the public in the same if a categorical finding recorded in favour of the accused on a point in an earlier case is allowed to be set at naught on the same point in a subsequent case which was an offshoot of the previous case. If this were allowed there would be two contradictory findings in regard to the same matter, which cannot but have a very detrimental effect on the administration of justice.

10. In Manipur Administration, Manipur v. Thokechom Bira Singh 1965 (1) Cri LJ120 (SC), it was observed that 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 has been reached in favour of an accused, such a finding would constitute an estoppel of 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 a different offence which might be permitted by the terms of Section 403(2). I respectfully agree with the said observations."

He further submitted that Hon'ble Apex Court in Manipur Administration, Manipur Vs. Thokchom Bira Singh, 1965 (1) Cri LJ120 (SC) has observed that though under the provisions contained in Section 403, Cr.P.C. only second trial is barred for the same offence, but the Hon'ble Apex Court has held that in such cases rule of issue estoppel would be applicable and observed the following:-

"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 has been reached in favour of an 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 a different offence which might be permitted by the terms of S. 403(2)."

The question to be determined is what would be the effect of judgment and decree passed in O.S. No.192/1984, Prem Singh Vs. Jagdish Chandra whereby suit for specific performance of contract filed by Prem Singh son of the present applicant was decreed.

This question bears little relevance here because in the original suit accused-applicant was not party. He cannot take any benefit of the judgment and decree passed in O.S. No.192/1984.

So far as averments contained in para 3 of the complaint are concerned, on 5.3.1984 according to O.P. No.2 when he was taking jewellery with his son, he was ambushed by five miscreants. They looted one wrist watch, jewellery and Rs.35/-. When they narrated the incident to the revisionist, they were beaten, locked in one room during the night, thereafter threatened and made to affix their thumb impressions and signatures on some blank papers.

The whole of the incident, as noticed above, was not adjudicated by a criminal court competent to adjudicate the same. In the Evidence Act from Section 40 to 44 provisions are made when a judgment and decree would be relevant. These provisions are quoted hereinbelow:-

40. Previous judgments relevant to bar a second suit or trial.?The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.

41. Relevancy of certain judgments in probate, etc., jurisdiction.?A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof? that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, 1[order or decree] declares it to have accrued to that person; 3[order or decree] declares it to have accrued to that person;" that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease; 3[order or decree] declared that it had ceased or should cease;" and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property. 3[order or decree] declares that it had been or should be his property.

42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.?Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.?Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.

44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.?Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

The only provision, which throws some light here, is contained in Section 40 of the Evidence Act, but the provisions contained in Section 40, Evidence Act would amount to bar trial of second suit or trial. It would have no application as rule of estoppel, which only prevents a party from making representations contrary to what he had represented earlier. The law cited by learned counsel for the revisionist relates to rule of estoppel and provisions contained in the Section 40, Evidence Act can be invoked only when it would have effect of creating a bar for second trial, which is not the case in the present matter. Except Section 40, Evidence Act there is no provision which may help the case of the revisionist, hence, revision is misconceived and dismissed at this stage in limine.

Order Date :- 3.10.2016

T. Sinha