Bombay High Court
Amit Bhanudas Ujgare And Anr vs The State Of Mah And Anr on 7 October, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1990 OF 2007
1. Amit S/o Bhanudas Ujgare,
Age. 28 years, Occu. Business,
R/o. Wadwani, Tq. & Dist. Beed.
2. Gautam S/o Tatyaba Ujgare,
Age. 25 years, Occu. Labourer,
R/o. Wadwani, Tq. & Dist. Beed.
ig ...Applicant
Versus
1. The State of Maharashtra.
2. Bhimrao S/o Yamaji Ujgare,
Age. 41 years, Occu. Business,
R/o. Wadwani, Tq. Wadwani,
Dist. Beed. ...Respondents
...
Advocate for Applicants : Mr. V.C. Patil h/f Mr. U B Bondar
APP for Respondent No.1: Mr. P.G. Borade
Advocate for respondent No.2: Mr. R.S. Shinde h/f Mr. Joydeep Chatterji
.....
CORAM : V. K. JADHAV, J.
DATED : 7th OCTOBER, 2016
ORAL JUDGMENT:-
1. The applicants original accused Nos.1 and 2 are seeking
quashment and setting aside the order dated 17.5.2007 passed by
the Judicial Magistrate, First Class, Majalgaon in R.C.C. No.99 of
2007 thereby issuing process for the offences punishable under
Sections 171-G, 193, 196, 197 r.w. 34 of I.P.C.
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2. Brief facts, giving rise to the present criminal application are as
follows:-
The applicant No.1 and respondent No.2 contested the
elections of Zilla Parishad, Beed from Wadwani constituency, which
was reserved for Scheduled Caste (male) candidate. The applicant
No.1 got elected from the said constituency by defeating respondent
No.2 with considerable margin of votes. On 25.4.2007, respondent
No.2 filed a private complaint in the court of J.M.F.C. Majalgaon
against present applicants and two others alleging therein that
applicant No.1 was disqualified for the said election, however, by
submitting false information and affidavits, he has contested the
election and as such committed offences punishable under Sections
171-G, 193, 196, 197 r.w. 34 of I.P.C. Learned J.M.F.C. by order
dated 17.5.2007 issued process against the applicants and other two
accused persons for the aforesaid offences. Hence, this application.
3. Learned counsel for the applicants submits that respondent
No.2 has challenged the election results by filing election petition No.
4 of 2007 before the District Judge, Majalgaon. The learned District
Judge-1, Majalgaon by judgment and order dated 16.4.2008
dismissed the said election petition. The learned District Judge has
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recorded the finding while disposing of said election petition that the
petitioner (respondent No.2 herein-original complainant) failed to
prove that respondent No.1 (present applicant No.1) made false
declaration and he is, therefore, disqualified to contest the election
from Wadwani constituency. In the light of above observations made
by learned District Judge, while disposing of election petition, the
allegations made in the complaint, which is subject matter of the
present criminal application, are not sustainable and on this ground
alone the impugned order is liable to be quashed set aside. Learned
counsel for the applicants submits that learned District Judge after
conducting full-fledged trial of election petition, recorded the finding in
negative and the said finding binds the parties. Criminal proceedings
stand suspended in view finding recorded by the civil court and
thereby the findings of the civil court get precedence over the
criminal proceedings. Apart from the above legal position, the
allegations made against present applicant No.2, though accepting
as it is, prima facie, no offence is made out and thus, the impugned
order is liable to be quashed and set aside to the extent of applicant
No.2.
4. Learned counsel for respondent No.2-original complainant
submits that if criminal case and the civil proceedings are for the
same cause, the judgment of civil court would be relevant if any of
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conditions of Sections 40 to 43 of Evidence Act are satisfied. It
cannot be said that the same would be conclusive except, as
provided under section 41 of the Evidence Act. Learned counsel
submits that the criminal prosecution would not be required to be
dropped alone on the ground that the civil suit, for the same cause,
came to be dismissed. Learned counsel for the respondent-original
complainant, in order to substantiate his submissions, places
reliance on the judgment in the case of K.G. Premshankar vs.
Inspector of Police and Anr, reported in 2002 Cri.L.J. 4343.
5. Sections 40 to 43 of the Evidence Act provide which judgment
of the Court of justice are relevant and to what extent. Sections 40 to
43 of the Evidence Act read as under:-
"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,
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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, 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, 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.
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."
6. In the case of K.G. Premshankar vs. Inspector of Police
and Anr, (supra), relied upon by learned counsel for the respondent
original complainant, the Apex Court had an occasion to deal with the
similar issue by making observations in para 31 to 33 of the
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judgment. Paras 31 to 33 of the said judgment are reproduced as
follows:-
"31. Further, the judgment, order or decree passed in a previous
civil proceeding, if relevant, as provided under Sections 40 to 41 or
other provisions of the Evidence Act then in each case, Court has to
decide to what extent it is binding or conclusive with regard to the
matter(s) decided therein. Take for illustration, in a case of alleged
trespass by 'A' on "B's property, 'B' filed a suit for declaration of its
title and to recover possession form 'A' and suit is decree.
Thereafter, in a criminal prosecution by 'B' against 'A' for trespass,
judgment passed between the parties in civil proceeding cold be
relevant and Court may hold that if conclusively establishes the title
as well as possession of 'B' over the property. In such case, 'A' may
be convicted for trespass. The illustration to Section 42 which is
quoted above makes the position clear. Hence, in each and every
case, first question which would require consideration is- whether
judgment, order or decree is relevant? If relevant - its effect. It may
be relevant for a limited purpose, such as, motive or as a fact in
issue. This would depend upon facts of each case.
32. In the present case, the decision rendered by the
Constitution Bench of M.S. Sheriff's case (supra) would be binding,
wherein it has been specifically held that o hard and fast rule can be
laid down and that possibility of conflicting decision in civil and
criminal courts is not a relevant consideration. The law envisages
"such an eventuality when it expressly refrains from making the
decision of one Court biding on the other, or even relevant, except for
limited purpose such as sentence or damages."
33. Hence, the observation made by this Court in V.M. Shah's
case (supra) that the finding recorded by the criminal Court stands
superseded by the finding recorded by the Civil Court is not correct
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enunciation of law. Further, the general observations made in Karam
Chand's case are in context of the facts of the case stated above.
The Court was not required to consider the earlier decision of the
Constitution Bench in M.S. Sheriff's case as well as sections 40 to 43
of the Evidence Act."
7. So far as previous judgment rendered by the civil court, which
has attained finality, is concerned, the same can be relied upon by
taking recourse of provisions of Sections 40 to 43 of the Evidence
Act. If the criminal case and civil proceedings are for the same
cause, the judgment of Civil Court would be relevant, if any
conditions of Sections 40 to 43 are satisfied. It cannot be said that
the judgment rendered by the Civil Court would be conclusive and it
terminates the criminal proceedings. An exception is carved out in
Section 41 of Evidence Act. In the instant case, Section 41 has no
application. Furthermore, the judgment and order or decree passed
in the civil proceedings are relevant as provided under Sections 40
and 42 of the Evidence Act. Thus, in the instant case, the learned
Magistrate would require to consider all evidence and to find out
whether the judgment and order or decree passed in the said
election petition is relevant and if relevant, what is effect of the same.
8. In view of the allegations made in the complaint, prima facie,
case is made out for issuance of process against the present
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applicant No.1-original accused No.1. Scope of enquiry under
Section 202 of Cr.P.C. is extremely limited and thus, I do not find any
fault in the impugned order passed by the learned Magistrate,
thereby issuing process against applicant No.1 for having committed
offences punishable under Sections 171-G, 193, 196, 197 r.w. 34 of
I.P.C. So far as applicant No.2 (original accused No.4) is
concerned, he is merely a proposer in the nomination form filled up
by present applicant No.1 for contesting the said election and except
that there is no other allegation made against him. In view of this,
the order of issuance of process against applicant No.2 (original
accused No.4) is thus liable to be quashed and set aside.
Accordingly, I proceed to pass the following order:-
ORDER
I. Criminal application No. 1990 of 2007 is hereby partly
allowed.
II. The impugned order dated 17.05.2007 passed by learned
J.M.F.C. Majalgaon in R.C.C. No. 99 of 2007 thereby
issuing process as against applicant No.2 (original accused
No.4) is quashed and set side.
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III. The order passed by the learned Magistrate dated
17.5.2007 in R.C.C. No. 99 of 2007 thereby issuing
process for the offences punishable under sections 171-G,
193, 196, 197 r.w.34of I.P.C. against the present applicant
No.1 (original accused No.1) stands confirmed.
IV. Criminal application is accordingly disposed of. Rule is
made absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
