Ankit Dixit vs The State Of Madhya Pradesh
2021 Latest Caselaw 926 MP

                                                                                      1              M.Cr.C.No.36635 of 2019

                                                      HIGH COURT OF MADHYA PRADESH
                                                           PRINCIPAL SEAT AT JABALPUR

                                    Single Bench :        Hon'ble Shri Rajeev Kumar Dubey, J.

                                                           Misc. Criminal Case No.36635/2019


                                                                           Ankit Dixit
                                                                                vs.
                                                              State of Madhya Pradesh & Anr.
                                    --------------------------------------------------------------------------------------------

                                    Shri Vijay Nayak, learned counsel for the applicant.

                                    Shri Devendra Shukla, Panel Lawyer for the respondent No.1/State.

                                    Shri Ashish Tiwari, learned counsel for the respondent No.2/complainant.

                                    --------------------------------------------------------------------------------------------

                                                                           ORDER

Reserved on : 18/02/2021 Delivered on : 22/03/2021

This petition has been filed under Section 482 of Cr.P.C. for quashing the proceedings of Special S.T. No.46/2015 (SCATR No.20048/2015) arising out from the charge-sheet filed by the police after investigation of Crime No.1696/2014 registered at P.S. Betul for the offences punishable under Sections 147, 148, 149, 307, 302 of the IPC and 3(2)(v) of SC/ST(Prevention of Atrocities) Act 1989 and also to set aside the order dated 17/07/2019 passed by Special Judge, Atrocity Act, Betul, in Special S.T. No.46/2015 (SCATR No.20048/2015) whereby learned Special Judge framed the charges against the applicant for the offences punishable under sections 148, 302 in alternate 302 read with 149, 307 in alternate 307 read with 149 of the IPC and 3(2)(v) of SC/ST(Prevention of Atrocities) Act 1989.

Digitally signed by VARSHA SINGH Date: 2021.03.24 14:42:35 +05'30'

2. Brief facts of the case which are relevant to the disposal of this petition are that on 22/11/2014 complainant Bheem, brother of deceased Jitesh lodged an F.I.R. at Police Station Betul averring that he resided at Sweeper Mohalla Betul, Distt. Betul and works in the Municipal Committee Betul. He had gone alongwith his brother Jitesh to the temple for worshiping at around 12.30 p.m. and when they were on the temple, Rinku Rathore, Ankit Dixit (present applicant), Dabbu Mishra, Guni and Kaifi Musalman came there on three motorbikes and they had fired at his brother Jitesh and on him. All these persons were having guns in their hands. In the firing, his brother Jitesh sustained a gunshot injury on his chest and after firing, applicant Ankit Dixit & co-accused Rinku Rathore, Dabbu Mishra, Guni and Kaifi Musalman ran away on their bikes. At the time of the incident, Ganesh and Gautam were also present on the spot and they also saw the incident. On that, police registered Crime No.1696/2014 at P.S. Betul, Distt. Betul for the offences punishable under Sections 147, 148, 149, 307 and 302 of the I.P.C. and Sections 25 and 27 of the Arms Act and also Section 3 (2) (v) of SC/ST(Prevention of Atrocities) Act 1989 against the applicant and other co- accused persons and investigated the matter. Ashok Dixit, father of the present applicant lodged a complaint through higher police officials that his son was falsely implicated in this case due to enmity. On that, S.P. AJK, Bhopal inquired of that complaint and found that at the time of the incident, the applicant was at Indore. He was not on the spot, so police did not file charge sheet against the present applicant and only filed the charge sheet against the other co-accused persons namely Kaifi Musalman @ Golu, Guni @ Aman, Vinod @ John, Rinku @ Rahul and Dabbu Mishra @ Anurag before learned JMFC Betul and also filed charge sheet against co-accused Salim and Devendra @ Premraj who was juvenile before Juvenile Justice Board. Learned JMFC committed the case to the court of special Judge. On that charge sheet Special S.T. No.46/2015 (SCATR No.20048/2015) was registered. Learned Special Judge framed charges against the co-accused Kaifi Musalman @ Golu, Guni @ Aman, Vinod @ John, Rinku @ Rahul and Dabbu Mishra @ Anurag for the offences punishable under Section 148, 302 in alternate 302 read with 149, 307 alternate 307 read with 149 of IPC

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and 3(2)(v) of SC/ST(Prevention of Atrocities) Act 1989 and tried the case. During the trial, learned trial Court recorded the statements of eyewitnesses of the incident namely Bheem, Neelesh and Suraj and vide order dated 25/3/2017 took cognizance against the applicant under Section 319 of the Cr.P.C. On that, applicant filed an appeal (Cr.A.No.3740/2017) to quash that order which was rejected by the Coordinate Bench of this Court vide order dated 27/06/2018. Against which applicant filed special leave to appeal (Crl.) No.6841/2018 before Hon'ble Apex Court which was also dismissed. Thereafter, the applicant appeared before the trial Court. On that vide order dated 17/07/2019 learned trial Court framed charges against the applicant for the offences punishable under sections 148, 302 in alternate 302 read with 149, 307 in alternate 307 read with 149 of the I.P.C. and 3(2)(v) of SC/ST (Prevention of Atrocities) Act 1989. Being aggrieved by that order, applicant filed this petition.

3. It is pertinent to mention here that when applicant appeared before the trial court prosecution evidence against other co-accused namely Kaifi @ Golu, Guni @ Aman, Jhon, Rinku @ Rahul and Dabbu @ Anurag had been concluded, so learned trial Court separated the trial of applicant and passed the judgement against above-mentioned co-accused persons on 17/10/2019 and in that judgement learned trial Court acquitted co-accused Kaifi @ Golu, Guni @ Aman and Dabbu @ Anurag, but found co-accused Rinku @ Rahul Rathore guilty for the offence punishable under Section 302 of the IPC and Jhon @ Vinod under Section 302 read with Section 34 of the IPC and sentenced them to undergo life imprisonment with fine of Rs.1,000/- each with default clause. On the basis of that judgement applicant filed this petition to quash the criminal proceedings pending against him.

4. Learned counsel for the applicant submitted that during the investigation of the crime it was found that at the time of the incident applicant was not present on the spot, he was falsely implicated in the crime. Therefore prosecution did not file charge-sheet against the applicant. Learned trial Court took cognizance against the applicant under Section 319 of Cr.P.C. on the basis of court statements of the alleged eye-witnesses of the

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incident namely Bheem, Neelesh and Suraj recorded by the trial court during trial of other co-accused persons namely Kaifi @ Golu, Guni @ Aman, Vinod @ John, Rinku @ Rahul and Dabbu @ Anurag. Thereafter learned trial court passed the judgment against these co-accused persons on 17/10/2019. In that judgement learned trial court held that regarding the incident the statement of Bheem (PW-6) is not believable and Suraj (PW-4) did not see the incident. There are many contradictions and omissions in the court statement of Neelesh (PW-5) so regarding the incident his statement is also not believable. Investigation Officer V.K. Jain (PW-8) clearly deposes in his court statement that during investigation it was found that applicant Ankit Dixit was not present on the spot. In these circumstances on the basis of statements of Suraj(PW-4), Neelesh (PW-5) and Bheem (PW/6), trial can not be proceeded against the applicant.

5. He further submitted that learned trial court in his judgement after considering the whole prosecution evidence held that only two co-accused Rinku @ Rahul Rathore and Jhon @ Vinod committed the incident and acquitted the other co-accused Kaifi @ Golu, Guni @ Aman and Dabbu @ Anurag, which clearly shows that the applicant is falsely implicated in the case. He further submitted that though, it is alleged that the applicant also fired at the deceased, but Dr. Ranu Verma (PW-1) who conducted autopsy of the dead body of the deceased clearly deposed that he found only one gun shot injury on the dead body of the deceased. So also the statement of Bheem that the applicant also fired at the deceased became false. The judgement of the trial Court passed against other co-accused persons is final and binding on the prosecution. So the proceedings of Special S.T. No.46/2015 (SCATR No.20046/2015) be quashed and the order dated 17/07/2019 passed by Special Judge, Atrocity Act, Betul, whereby learned ASJ framed the charge against the applicant, be set aside. In support of his contention, learned counsel also placed reliance on the judgments passed by Hon'ble Apex Court in the cases of Manmeet Singh @ Goldie Vs. State of Punjab (2015) 7 SCC 167, Brijendra Singh and Others Vs. State of Rajasthan (2017) 7 SCC 706, Satish Mehra Vs. State (NCT of Delhi) and

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Another (2012) 13 SCC 614, Radheshyam Kejriwal Vs. State of West Bengal and Another (2011) 3 SCC 581.

6. Learned counsel for the non-applicant no.1/State as well as the non- applicant no.2/complainant opposed the prayer and submitted that earlier trial Court took cognizance against the applicant under Section 319 of the Cr.P.C. The applicant challenged that order by way of filing an appeal (Cr.A.No.3740/2017), which was rejected by the Coordinate Bench of this Court vide order dated 27/06/2018. Against which applicant filed special leave to appeal (Crl.) No.6841/2018 before Apex Court which was also dismissed. Thereafter there has been no change in circumstance. They further submitted that the judgement passed by the trial court against the other co-accused persons can not be read against the present applicant. Even in that judgement also the trial court has relied on the statement of Neelesh (PW-5) and on the basis of his statement the trial court found co-accused Rinku @ Rahul Rathore and Jhon @ Vinod guilty. Neelesh (PW-5) in his court statement clearly deposed that the applicant was also involved in the crime. So at this stage proceedings of special S.T. No.46/2015 (SCATR No.20046/2015) can not be queshed.

7. This court has gone through the record and arguments put forth by the learned counsels of the parties. The facts of the cases Manmeet Singh @ Goldie Vs. State of Punjab (supra), Brijendra Singh and Others Vs. State of Rajasthan (supra), Satish Mehra Vs. State (NCT of Delhi) and Another (supra), Radheshyam Kejriwal Vs. State of West Bengal and Another (supra) upon which reliance is placed by the learned counsel for the applicant do not match with the present case. In the first case because prosecution failed to prove that the offence was committed by 5 or more persons the apex court acquitted the applicant for the charge punishable under section 396 of IPC. While in this case, whether the applicant was involved in the crime, has to be decided by the trial court after the conclusion of the trial. In the second case Hon'ble Apex Court considered the scope of the powers of the trial court under Section 319 Cr.P.C. and what is the nature of the satisfaction required to invoke the power under Section

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319 Cr.P.C. to arraign an accused and in the third case Apex court held that in a case where the allegations made in the F.I.R. or the criminal complaint, as may be, prima facie do not disclose a triable offence charge-sheet can be quashed. While in this case trial Court took cognizance against the applicant under Section 319 of the Cr.P.C. The applicant challenged that order by way of filing an appeal (Cr.A.No.3740/2017), which was rejected by the Coordinate Bench of this Court vide order dated 27/6/2018. Against which applicant filed special leave to appeal (Crl.) No.6841/2018 before Apex Court which was also dismissed. Thereafter there has been no change in circumstances. Fourth judgement is on the point that findings of fact in adjudication proceedings under section 51 of Foreign Exchange Regulation Act 1973 when relevant. While in this case the learned trial court in its earlier judgement has not given any finding regarding involvement of the applicant in the crime. So these judgements do not assist the applicant.

8. As argued by the learned counsels of the non applicants trial Court took cognizance against the applicant under Section 319 of the Cr.P.C. The applicant challenged that order by way of filing an appeal (Cr.A.No.3740/2017), which was rejected by the Coordinate Bench of this Court vide order dated 27/06/2018. Against which applicant filed special leave to appeal (Crl.) No.6841/2018 before Apex Court which was also dismissed. Thereafter there has been no change in circumstance. At the time of the incident applicant was not present on the spot, he was at Indore is the defence of the applicant it requires evidence to decide.

9. In the trial of other co-accused persons Bheem (PW/6) and Nilesh (PW/5) deposed that the applicant was also involved in the crime. Bheem (PW/6) clearly deposed that applicant also came along with other co-accused persons on the spot armed with a gun and fired at the deceased and Bheem. Nilesh (PW-5) also deposed in his court statement that at the time of incident the applicant also came on the spot along with other co-accused persons and took part in the incident. In the judgement the trial court has relied on the statement of Neelesh (PW-5) and on the basis of his statement the trial court found co-accused Rinku @ Rahul Rathore and Jhon @ Vinod guilty. Nilesh

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(PW-5) in his court statements also deposed that at the time of incident the applicant also came on the spot along with other co-accused persons and took part in the incident. The trial court in its judgment has not considered the fact whether the statement of Neelesh (PW-5) regarding the involvement of the applicant in the crime is correct or not. So on the basis of the judgment passed by the trial court against the other co-accused persons also the proceedings of Special S.T. No.46/2015 (SCATR No.20046/2015) pending against applicant can not be quashed at this stage.

10. However in this petition applicant also challenged the order dated 17/07/2019 passed by Special Judge, Atrocity Act, Betul, in Special S.T. No.46/2015 (SCATR No.20048/2015) whereby learned Special Judge framed the charges against the applicant for the offences punishable under sections 148, 302 in alternate 302 read with 149, 307 in alternate 307 read with 149 of the I.P.C. and 3(2)(v) of SC/ST (Prevention of Atrocities) Act 1989.

11. According to Section 14A of the SC/ST(Prevention of Atrocities) Act 1989 which reads as thus:-

"14A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an appeal shall lie, from any judgment, sentence or order; not being an interlocutory order,' of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law."

12. Against the impugned order passed by the special court only appeal shall lie, So against that order this petition filed by the applicant under Section 482 of Cr.P.C. is not maintainable.

13. Hence, the petition has no force and is hereby dismissed.

(Rajeev Kumar Dubey) Judge VS

Digitally signed by VARSHA SINGH Date: 2021.03.24 14:44:01 +05'30'