Madhya Pradesh High Court
Bhagwandeen Bais vs Ghanshaym Singh Bais @ Ankit on 7 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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1 M.Cr.C. No.11579/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 7th OF JANUARY, 2025
MISCELLANEOUS CRIMINAL CASE No. 11579 of 2024
BHAGWANDEEN BAIS
Versus
GHANSHAYM SINGH BAIS @ ANKIT AND ANOTHER
............................................................................................................................................
Appearance:
Shri R.N. Singh - Senior Advocate with Shri Narunaditya Singh -
Advocate for the petitioner.
Shri Rakesh Dwivedi - Advocate for respondent No.1.
Shri A.S. Baghel - Public Prosecutor for respondent No.2/State.
............................................................................................................................................
ORDER
This petition under Section 482 of Cr.P.C. has been filed seeking
following reliefs:-
i. Direct the Judicial Magistrate First Class
Majhauli, Distt. Sidhi to proceed with the trial
of R.C.T. no.614/2022 pending against the
accused persons in accordance with law.
ii. Direct the Judicial Magistrate First Class
Majhauli, Distt, Sidhi to withhold the
proceedings of RCT No.921/2020 till the
pendency of CRR 65/2022 before III Additional
District and Sessions Judge, Sidhi.
iii. Direct the III Additional District And Sessions
Judge, Sidhi to decide the CRR 65/2022 within
a stipulated period of time in accordance with
law.
iv. Grant any other relief deemed fit in the facts and
circumstances of the present case.
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2. It is the case of petitioner that on 23/08/2020 at about 13:20,
respondent No.1 came to the house of the petitioner and invited his son
Anup Singh Bais (deceased) for dinner at the house of Kamlesh Singh
Bais at village Tala. The deceased accompanied the respondent No.1
along with Vipul and Avnish for dinner. At about 9:00 PM, brother of
deceased made a video call to the deceased wherein he has informed
that he is going to have dinner at basement of house of Kamlesh Singh
at Tala. At about 10:00 PM, respondent No.1 asked Gaurav, friend of
the deceased, to leave the party and have dinner elsewhere as the party
is specially for deceased Anup. Accordingly, Gaurav left the party. As
soon as Gaurav left the party, accused on account of enmity with
deceased, murdered him brutally. Thereafter with an intention to destroy
the evidence, they carried the dead body of deceased in a bearing
registration No.MP19CC0443 and took it to an adjoining jungle.
However, on the way, vehicle met with an accident and the respondent
No.1 was shifting the dead body from said car to another vehicle. At the
relevant time, one Bhupal Singh asked the accused persons about the
accident and when he enquired about the deceased, he was threatened by
the accused persons. However, Bhupal Singh made a call to 100 dial and
intimated the Police Authorities and made an attempt to video graph the
entire episode. Thereafter, matter was reported to the Police Authorities.
On receiving information, Police Authorities have registered a criminal
case at Crime No.618/2020 for offence under Section 304-A of IPC and
after completion of investigation, final report has been placed before
learned JMFC Majhauli under Section 173 of Cr.P.C.
3. Petitioner made several complaints to the Authorities time and
again to point out that it is not a case of accident, rather it is a case of
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murder which has been converted into an accident. When the
representations submitted by the petitioner were not considered, under
compelling circumstances, he knocked the doors of this Court by filing a
Writ Petition under Article 226 of Constitution of India seeking a writ of
mandamus for fair investigation through independent agency. The said
petition was dismissed as withdrawn with liberty to file a complaint/
application under Section 156(3) of Cr.P.C. Thereafter, petitioner
preferred a complaint under Section 156(3) of Cr.P.C. before learned
JMFC and JMFC after going through the complaint and recording
statements under Section 200 of Cr.P.C. has taken cognizance in the
matter and has observed that there are several lapses on the part of the
Police Authorities in carrying out the investigation and they have not
considered the matter in proper perspective which is reflected from the
impugned order. It was further observed that the case clearly falls under
the category of Section 302 of IPC, therefore further directed for
initiation of prosecution for offence under Sections 420, 467, 468, 471,
472 of IPC against Police Authorities and Doctors. The said order is put
to challenge by filing Criminal Revision No.65/2022 which is pending
consideration.
4. It is the case of petitioner that proceedings of RCT No.921/2020
for offence under Section 304-A of IPC as well as proceedings of
complaint made under Section 156(3) of Cr.P.C. are pending
consideration before two different Courts. There is no interim relief
granted by the Revisional Court in pending Cr.R. No.65/2022 but
despite of same, Trial Court is not proceeding in the matter for offence
under Section 302 of IPC in RCT No.614/2022. It is submitted that the
Authorities as well as accused persons are hand in gloves including the
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Police Authorities and Doctors who have conducted post-mortem or
medical examination of the dead body, therefore this petition is being
filed seeking fair investigation in the matter by the Authorities or for a
direction to club both the cases together and decide the same in
accordance with law by common order. He has placed reliance on the
order passed by Hon‟ble Supreme Court in the case of Harjinder Singh
Vs. State of Punjab and Others reported in (1985) 1 SCC 422. It is
argued that in pursuance to Section 223 of Cr.P.C, the matter should
have been clubbed together and consolidated hearing should have been
given to the matter. The matter should have been considered and dealt
with by the senior or superior Court.
5. On notice being issued, respondents have marked their presence
before the Court. Learned counsel appearing for respondent No.1 has
submitted that it is the right of accused person to file a criminal revision
against the order taking cognizance by the Trial Court. There is no
dispute to the aforesaid proposition. They are having legal right to
challenge the said order before the Revisional Court. The fact remains
that Revisional Court has not granted any interim relief or stay in the
matter, despite of the same Trial Court is not proceeding in the matter.
At this stage, learned counsel appearing for the State has pointed out
that the Trial Court could not proceed in the matter owing to the fact
that record was called by the Revisional Court.
6. Heard learned counsel for the parties and perused the record.
7. The relief which has been claimed by the petitioner is regarding
clubbing and consolidating two cases, one based upon police challan
and another on the private complaint.
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8. The aforesaid aspect was considered by Hon‟ble Supreme Court
in the case of Harjinder Singh (supra) and it has been held as under:-
"2. The short point involved in this appeal is whether
under Section 223 of the Criminal Procedure Code,
1973 it is permissible for the Court to club and
consolidate the case on a police challan and the case
on a complaint where the prosecution versions in the
police challan case and the complaint case are
materially different, contradictory and mutually
exclusive. The question is whether the Court should
in the facts and circumstances of the case direct that
the two cases should be tried together but not
consolidated i.e. the evidence be recorded separately
in both cases and they may be disposed of
simultaneously except to the extent that the witnesses
for the prosecution which are common to both may
be examined in one case and their evidence be read
as evidence in the other.
* * *
8. In the facts and circumstances of this particular
case we feel that the proper course to adopt is to
direct that the two cases should be tried together by
the learned Additional Sessions Judge but not
consolidated i.e. the evidence should be recorded
separately in both the cases one after the other except
to the extent that the witnesses for the prosecution
who are common to both the cases be examined in
one case and their evidence be read as evidence in
the other. The learned Additional Sessions Judge
should after recording the evidence of the
prosecution witnesses in one case, withhold his
judgment and then proceed to record the evidence of
the prosecution in the other case. Thereafter he shall
proceed to simultaneously dispose of the cases by
two separate judgments taking care that the judgment
in one case is not based on the evidence recorded in
the other case. In Kewal Krishan case [1980 Supp
SCC 499 : 1981 SCC (Cri) 438 : AIR 1980 SC
1780], this Court had occasion to deal with a
situation as the present, where two cases exclusively
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triable by the Court of Session, one instituted on a
police report under Section 173 of the Code and the
other initiated on a criminal complaint, arose out of
the same transaction. The Court observed that to
obviate the risk of two courts coming to conflicting
findings, it was desirable that the two cases should be
tried separately but by the same court. The High
Court was largely influenced in upholding the order
of the learned Additional Sessions Judge by the
fundamental right of the accused guaranteed by
Article 20(2) of the Constitution and Section 300 of
the Code which provides that no person shall be
prosecuted and punished for the same offence more
than once. If there is no punishment for the offence
as a result of the prosecution, sub-clause (2) of
Article 20 has no application. The constitutional right
guaranteed by Article 20(2) against double jeopardy
can still be reserved if the two cases are tried together
but not consolidated i.e. the evidence be recorded
separately in both cases and they be disposed of
simultaneously. Further, the second prosecution must
be for the „same offence‟. If the offences are distinct,
there is no question of the rule as to double jeopardy
being applicable."
9. After perusal of aforesaid settled legal proposition of law by the
Hon‟ble Supreme Court as well as provisions of Section 223 of Cr.P.C,
this Court deems it appropriate to dispose of the matter with a direction
to the Trial Court to club both the proceedings i.e. RCT No.921/2020
(based upon police challan) and RCT No.614/2022 (based upon private
complaint) together and initiate common trial for the same taking note
of the guidelines issued by Hon‟ble Supreme Court in paragraph 8 of the
order passed in the case of Harjinder Singh (supra).
10. As far as pendency of Criminal Revision before the Revisional
Court is concerned, this Court deems it appropriate to direct the
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Revisional Court to consider and decide Cr.R. No.65/2022
expeditiously.
11. It is expected that the Revisional Court will dispose of the case
within a period of 90 days from the date of receipt of certified copy of
this order and the Trial Court will club the proceedings and expedite the
proceedings of criminal case. The Trial Court may take note of the fact
and observations made by the Court in the complaint case with respect
to dereliction of duties by respective Police Officers and Doctors at
appropriate stage of the proceedings.
12. With aforesaid observations, petition stands disposed off.
13. Let a copy of this order be communicated to the Trial Court and
Revisional Court and records of RCT No.614/2022 and RCT
No.921/2020 be returned back to the Trial Court immediately.
(VISHAL MISHRA)
JUDGE
Shbhnkr
