Madhya Pradesh High Court

Dharmendra Lodhi vs The State Of Madhya Pradesh on 10 January, 2022

Author: Gurpal Singh Ahluwalia

                             1
             THE HIGH COURT OF MADHYA PRADESH
                        MCRC No. 59472/2021
    (DHARMENDRA LODHI Vs THE STATE OF MADHYA PRADESH AND
                          ANOTHER)

                   Through Video Conferencing

Gwalior, Dated : 10-01-2022

      Shri Suraj Pratap Singh Kushwah, Counsel for applicant.

      Shri R.P. Gupta, Counsel for State.

      This application under Section 482 of Cr.P.C has been filed

seeking quashment of FIR registered at Crime No.429/2015 at Police

Station Karera, District Shivpuri for offence under Sections 419, 420,

467, 468, 471 of IPC.

      It appears that the charge-sheet was filed against the applicant

during his abscondance and till today he has not surrendered.

      It is submitted by Counsel for the applicant that the applicant

was the student and on 23.06.2015, when the examination of Political

Science was going on in Government College Karera, it was found

that in place of the applicant, some other person was sitting and was

solving the question paper. When the photograph affixed on the

admission form was compared with the person who was sitting in the

examination room, then it was found that in place of applicant one

Prabhudayal was solving the questions and it was further found that

on 15.06.2015 and 17.06.2015, in fact the applicant had appeared in

the examination but in the examination held on 10.06.2015 and

19.06.2015

, co-accused Prabhdayal had appeared on behalf of

applicant.

THE HIGH COURT OF MADHYA PRADESH MCRC No. 59472/2021 (DHARMENDRA LODHI Vs THE STATE OF MADHYA PRADESH AND ANOTHER)

It is submitted that although the offence was also registered

against the applicant but he was not arrested and by showing him

absconding, the Police filed the charge-sheet against Prabhudayal for

offence under Sections 419, 420, 467, 468 & 471 of IPC and Section

3/4 of M.P. Manyata Prapt Pariksha Adhiniyam, 1937.

Four charges were framed. The co-accused was tried and after

appreciating the evidence, the Trial Court came to the conclusion that

in fact the prosecution has failed to prove that the co-accused had

appeared on behalf of applicant to answer the question paper. It is

submitted that in the light of the judgment passed by the Supreme

Court in case of Central Bureau of Investigation Vs. Akhilesh

Singh, reported in 2005 (1) SCC 478, it is clear that when

prosecution has failed to prove the guilt of a co-accused person, then

the absconding accused is also entitled for the benefit of said acquittal.

It is submitted that in the trial of co-accused, the prosecution has

failed to even produce the answer sheet written by the co-accused

Prabhudayal. It is further submitted that in fact on the said date,

applicant had not appeared in the examination.

Per contra, the application is vehemently opposed by Counsel

for State.

Heard learned Counsel for the parties.

The applicant has filed a copy of the judgment passed in the

THE HIGH COURT OF MADHYA PRADESH MCRC No. 59472/2021 (DHARMENDRA LODHI Vs THE STATE OF MADHYA PRADESH AND ANOTHER)

trial of co-accused Prabhudayal. The relevant part of paragraph 17 of

the judgment reads as under :-

"17- --------------cfYd mu nLrkostksa esa of.kZr dk;Zokgh gh lansgkLin izdV

gksrh gS vkSj ;g bafxr djrh gS fd okLrfod O;fDr dksbZ vkSj Fkk

A------------"

So far as the evidence led by the prosecution in the case of co-

accused is concerned, it is well established principle of law that any

evidence led in the absence of an absconding accused cannot be read

either in his favour or against him.

The Supreme Court in the case of A.T. Mydeen and anr. Vs.

The Assistant Commissioner, Customs Department vide order

dated 29.10.2021 passed in Criminal Appeal No.1306/2021 has held

that the evidence led in the case of co-accused cannot be read against

or in favour of an accused.

Furthermore, it is not the finding by the Trial Court that no

offence was committed at all. The Trial Court has given a finding that

in fact the prosecution has failed to establish the identity of the co-

accused Prabhudayal. Thus, prima-facie it is clear that some person

had appeared in place of applicant to answer the question paper of

Political Science on behalf of applicant. It is not the case of applicant

that in fact it was the applicant who was answering the question paper.

Be that whatever it may.

THE HIGH COURT OF MADHYA PRADESH MCRC No. 59472/2021 (DHARMENDRA LODHI Vs THE STATE OF MADHYA PRADESH AND ANOTHER)

Since the evidence led in case of co-accused during the

abscondance of applicant cannot be read either in favour or against the

applicant coupled with the fact that co-accused has not been acquitted

on the ground that no offence was committed at all, this Court is of the

considered opinion that only because the co-accused has been

acquitted cannot be a basis for quashing of the FIR.

So far as the law laid down by Supreme Court in the case of

Akhilesh Singh (Supra) is concerned, the same is distinguishable. In

the said case, the co-accused was discharged and in that light, it was

held that the accused who is being tried at a later stage is also entitled

to be discharged. There is a vast difference between "Discharge" and

"Acquittal". In case of discharge, a finding is to be given by the

Court, that un-controverted allegations donot make out an offence, but

in the case of acquittal, the findings are based on evidence and as the

evidence led in the case of co-accused cannot be read either in favor

or against the accused in whose absence, the trial of the co-accused

had taken place, therefore, the acquittal of a co-accused in a Trial

which took place in the absence of the another accused, will not make

another accused to seek quashment of proceedings without facing any

trial.

Even otherwise, while trying different accused persons, the

Court is well within its right to acquit some of the accused persons

THE HIGH COURT OF MADHYA PRADESH MCRC No. 59472/2021 (DHARMENDRA LODHI Vs THE STATE OF MADHYA PRADESH AND ANOTHER)

and to convict the remaining. The Supreme Court in the case of

Karan Singh Vs. State of M.P. reported in AIR 1965 SC 1037 has

held as under :

4. The only question argued in this appeal is whether in view of the acquittal of Ramhans by the learned Sessions Judge from which there had been no appeal, it was open to the High Court to hold that the appellant was guilty of murder under S. 302 read with S. 34 by finding on the evidence that Ramhans who shared a common intention with him, shot the deceased dead and attempted to murder Ramchandra. In the High Court reliance had been placed on behalf of the appellant on the judgment of this Court in Pritam Singh v. State of Punjab, (S) AIR 1956 SC 415. That case referred with approval to the judgment of the Judicial Committee in Sambasivan v. Public Prosecutor, Federation of Malaya, 1950 AC 458 at p. 479, where it was observed that "the effect of a verdict of acquittal... is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication." As the High Court pointed out, that observation has no application to the present case as here the acquittal of Ramhans was not in any proceeding to which the appellant was a party. Clearly, the decision in each case has to turn on the evidence led in it; Ramhans's case depended on the evidence led there while the appellant's case had to be decided only on the evidence led in it. The evidence led in Ramhans' case and the decision there arrived at on that evidence would be wholly irrelevant in considering the merits of the appellant's case. We may add here that Mr. Misra appearing for the appellant did not in this Court rely on Pritam Singh's case, (S) AIR 1956 SC 415.

5. Mr. Misra contended that the decision of this Court in Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413 showed that the High Court was wrong in ignoring the fact of the acquittal of Ramhans. We are unable to accept that contention. The point there considered really was whether when four persons had been charged with the commission of an offence of murder read with S. 34 and the trial Court had acquitted three of them it was legal to

THE HIGH COURT OF MADHYA PRADESH MCRC No. 59472/2021 (DHARMENDRA LODHI Vs THE STATE OF MADHYA PRADESH AND ANOTHER)

convict the remaining accused of the offence of murder read with S. 34. The High Court had held that that could be done. This Court set aside the judgment of the High Court mainly on the ground that such a decision would result in conflicting findings. It was observed, "While it (the High Court) acquitted accused 1, 3 and 4 under S. 302 read with S. 34 of the Indian Penal Code, it convicted accused 2 under S. 302 read with S. 34, of the said Code, for having committed the offence jointly with the acquitted persons. This is a legally impossible position."

That case no doubt discussed various situations where it is possible after acquitting certain persons to hold that the conviction of other or others was justified under S. 34 on the ground that the evidence showed that there were other unknown persons who were associated with those convicted though the charge did not mention them. With this aspect of the matter we are not concerned in this case and neither was the case of Krishna Govinda Patil, AIR 1963 SC 1413.

Furthermore, it is well established principle of law that the High

Court in exercise of powers under Section 482 of Cr.P.C can quash the

proceeding only if the un-controverted allegations do not make out a

cognizable offence. In present case, the prosecution case is that

although the applicant was the student but some unauthorized person

was appearing on his behalf to answer the question paper of Political

Science. The allegations made against the applicant prima-facie

disclose the commission of cognizance offence.

Viewed from every angle, this Court is of the considered

opinion that no case is made out for quashment of the FIR registered

at Crime No.429/2015 at Police Station Karera, District Shivpuri.

THE HIGH COURT OF MADHYA PRADESH MCRC No. 59472/2021 (DHARMENDRA LODHI Vs THE STATE OF MADHYA PRADESH AND ANOTHER)