Mohd. Deen vs State Of U.P. And Another
2023 Latest Caselaw 26324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


AFR
 
Reserved
 
Neutral Citation No. - 2023:AHC:186510
 
Court No. - 75
 

 
Case :- APPLICATION U/S 482 No. - 3923 of 2005
 

 
Applicant :- Mohd. Deen
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Kumar Dhananjay
 
Counsel for Opposite Party :- Govt. Advocate,Shivesh Mishra
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard Sri Kumar Dhananjay, learned counsel for the applicant, Sri Shivesh Mishra, learned counsel for the informant, learned AGA for the State and perused the record.

2. The instant application has been moved to quash the charge-sheet arising out of Case Crime No.629 of 1995 under Section 307/302 IPC, Police Station Kotwali, District Ghaziabad and the proceedings of Criminal Case No.1466 of 1997 (State Vs. Mohd. Deen).

Grounds of appeal-

3. The applicant has taken ground that an FIR was lodged by opposite party no.2 namely Mohd. Idris on 12.12.1995 with the allegations that on 12.12.1995, the informant, Mohd. Idris along with his nephew Naeem and Shahnawaz @ Ballu were proceeding to a relatives place located at Kaila Bhatta. When they reached near Bokhari Clinic at about 12.15 in the noon, the applicant allegedly accompanied by his sons Salim and Sharif accosted the informant and exhorted his sons to shoot down Shah Nawaz on account of certain election rivalry. It was alleged in the first information report that upon exhortation by the applicant, his sons Salim and Sharif shot Shah Nawaz, as a result of which, he was badly injured. Later on, Shah Nawaz succumbed to his injuries. True copy of the FIR has been annexed as annexure-1.

4. The entire story in the first information report was baseless and the allegation against the applicant was only of exhortation. The impugned first information report contains allegation of shooting against the applicant's sons but there was no material, whatsoever, against the applicant. The applicant filed a petition being Criminal Misc. Writ Petition No.15006 of 1996 before this Court, challenging the first information report dated 12.12.1995, whereupon this Court, issued notice and by an interim order, stayed arrest of the applicant until conclusion of investigation. A true copy of the interim order dated 23.04.1996 has been annexed as annexure-2 to the petition.

5. Consequently, the applicant was never arrested pending investigation. The applicant's sons, co-accused, Sharif and Salim were, however, arrested and were enlarged on bail by this Court. However, a charge-sheet was filed against them on 15.01.1996, whereupon, the cognizance was taken on 13.03.1996. A photo copy of the charge-sheet filed against the co-accused, Salim and Sharif has been filed as annexure-3 to the petition.

6. The case with regard to the co-accused, Salim and Sharif was committed to the sessions which was registered as ST No.394 of 1996 (State Vs. Salim and another) under Section 302 IPC, Police Station Kotwali, District Ghaziabad.

7. During course of the trial, the witnesses of fact did not support the prosecution version. Each has stated that he had not seen the accused committing the offence in question. The prosecution witnesses were declared hostile and were subjected to cross- examination. However, the cross-examination did not yield any benefit to the prosecution. A true copy of the statements of PW-1, Mohd. Kasim, PW-2, Mohd. Ashraf and PW-3, Mohd. Idris have been annexed as annexure nos.3, 4 and 5 to the petition.

8.. The learned Additional Sessions Judge, after examination of evidence on record, vide his judgment and order dated 14.03.2001, held that the prosecution was totally unsuccessful in proving its case against the co-accused Salim and Sharif and, accordingly, entered a judgment of clean acquittal in ST No.394 of 1996. A true copy of judgment of acquittal of co-accused Salim and Sharif dated 14.03.2001 has been annexed as annexure-6 to the petition.

9. However, a charge-sheet was filed before the Chief Judicial Magistrate on 02.07.1996 also against the applicant and cognizance whereof was taken by the Chief Judicial Magistrate on 13.06.1997. A true along with certified copy of the impugned charge-sheet dated 13.06.1997 has been annexed as annexure-7 to the petition.

10. That a perusal of the impugned charge sheet would indicate that witnesses of fact cited by the prosecution in the impugned charge sheet are one and the same as were cited in the charge sheet against co-accused Salim and Sharif. The charge sheet has been filed about the same incident dated 12.12.1995 and arising out of the same first information report. There is no difference, whatsoever, in the evidence which was cited in support of the prosecution case in ST No.394 of 1996. The same witnesses are also the witness in the impugned charge-sheet and no other witness has been shown.

11. In view of the above circumstances, the proceedings against the applicant on the basis of impugned charge-sheet, on the face of record, absolutely futile as there is no possibility of a conviction being recorded on the same evidence on the basis of which co-accused have already been acquitted. Thus, the impugned charge-sheet is a patent abuse of process of court and deserves to be quashed.

12. A charge-sheet before the CJM that is criminal case no.1466 of 1997, non-bailable warrant of arrest has been issued against the applicant. The last non-bailable warrant had been issued on 08.03.2005 due to which the police is trying to arrest the applicant and going by the old age and health of the applicant, in case the applicant is arrested, he will suffer irreparable loss and injury. Under the aforesaid circumstances, the charge-sheet arising out of case crime no.629 of 1995, under Section 307 /302 IPC and criminal case no.1466 of 1997 - State Vs. Mohd. Deen, pending in the Court of CJM, Ghaziabad be quashed.

13. All the annexures referred in the petition, have been annexed by the applicant.

14. A counter affidavit bearing no.173098 has been filed on behalf of opposite party no.2. In the counter affidavit it is admitted that the arrest of the applicant was stayed by the High Court vide order dated 23.04.1996 and it is further averred that the IO had illegally submitted the charge-sheet against only two accused. The police has submitted charge-sheet against the applicant and the learned Magistrate has taken cognizance on 13.06.1997 and it is submitted that the evidence is not the same and the evidence has not yet come and the trial has not yet started. It is further averred that it is well settled law that charge-sheet under Section 302 IPC may not be quashed and the matter should be tried by the trial Court.

15. No rejoinder affidavit has been filed by the applicant against the aforesaid counter affidavit.

Conclusion-

16. The only ground taken by the applicant is that since the previously charge-sheeted main accused persons Salim and Sharif have been acquitted on account of hostile evidence of the witnesses of fact and he was only assigned the role of exhortation, it would not be feasible to conduct the trial in respect of the applicant and therefore, no trial should be conducted against the applicant and the charge-sheet and the aforesaid criminal case must be quashed.

17. In the charge-sheet filed against the applicant, Mohd. Idrish, Naeem, Ashraf have been shown to be witnesses of fact. Out of them, Mohd. Naeen was discharged in the main trial and was not testified by the prosecution. Similarly witness Mohd. Kasim, a witness of inquest, Zaheer Ali, Sheru, Nawabuddin, Siraj, Salim have been shown to be witnesses of fard and inquest and they were not examined in the previous trial. There is another aspect that in a criminal trial, a judge can not be a silent spectator and for the ends of justice, he may summon any of the person as witness under Section 311 CrPC. Therefore, it can not be said that since the witnesses of fact had been turned hostile, therefore, the impugned trial should not proceed against the applicant. There is no law that if the co-accused have been tried and acquitted separately, rest of the accused persons would not be tried and would be discharged and the proceeding of the criminal case against the rest of the accused would be liable to be quashed under Section 482 CrPC.

18. The relevancy and the evidentiary value of the previous judgement has been defined and enumerated under Section 40 to 44 of the Evidence Act are relevant which are as follows:

"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 an 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 pr 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 to be entitled, accrued, to that person at the time when such judgment, order or decree declares it to have accrued to that person;

that any legal character which it takes away from any person ceased at the time from which judgment, 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, 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.

Illustration

A Sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favor of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

43. Judgment, 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 provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A's wife.

B denies that C is A's wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife.

The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him, B is convicted.

A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B, C, B's son, murders A is consequence.

The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.

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."

19. From the combined reading of the aforesaid provisions and the case in hand, it is crystal clear that the judgment and order passed in respect of Salim and Sharif does not apply as res judicata. At most it can be said to be relevant which may be considered by the trial court but there is no law that if separately tried co-accused persons have been acquitted, the applicant co-accused will also be liable to be acquitted and the charge-sheet and the criminal trial would be liable to be quashed under the inherent powers of the Court.

20. In Moosa Vs. Sub Inspector of Police, 2006 CrLJ 1922 (Kerala) the facts of the case was that the co-accused were acquitted in the trial against them in the absence of absconding co-accused. Later on, the absconding co-accused moved an application to reckon the jurisdiction under Section 482 CrPC to quash the proceeding of the criminal case pending against him. It was held that a judgement which is not inter parties cannot justify the invocation of the Doctrine of Estoppel under the law at present.

21. In Central Bureau of investigation Vs. Ravi Shankar Srivastava, IAS and Another AIR 2006 SC 2872 it has been held that while exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of trial Judge.

22. It has been held in several judgements by the Apex Court that powers under Section 482 CrPC cannot be liberally exercised and it has to be sparingly exercised, in cases where there is a dire need of exercise of this power.

23. Thus, from the above discussion, this Court is of the considered view that the previous judgment passed in favour of the co-accused persons is no ground to allow the petition under Section 482 CrPC and to quash the impugned charge-sheet and the proceedings of the criminal case pending against the applicant. The grounds taken by the applicant are imaginary and trivial in nature and are not sustainable in the eyes of law. Therefore, the petition lacks merit and is liable to be dismissed.

24. Accordingly, this petition under Section 482 CrPC is dismissed. Interim order, if any, stands vacated.

25. Let a copy of this order be sent to the CJM, Ghaziabad for necessary compliance and for committal of the case if the same has not been committed to the Court of Sessions. In case the trial is not conducted, the same shall be conducted and concluded as early as possible preferably within a period of one year from the date of receipt of a copy of this order by the court concerned as the matter has become very old.

Order Date :- 26.09.2023

Shahroz/S.Verma

(Umesh Chandra Sharma,J.)