Kamal Singh And Anr vs Sumer Singh
2022 Latest Caselaw 12639 P&H

CRM-M-23096-2017                                                   1

          IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

Sr. No.                                    CRM-M-23096-2017 (O&M)
                                           Date of reserve: 29.9.2022
                                           Date of pronouncement:30.9.2022

Kamal Singh and another                                     .....Petitioner(s)

VERSUS

Sumer Singh
                                                      ..... Respondent(s)

CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY


Present:    Mr. Jaivir Yadav, Senior Advocate assisted by
            Mr. Harshvardhan Ranga, Advocate for the petitioners.

            Mr. Shashi Kumar Yadav, Advocate for the respondent.

AMAN CHAUDHARY, J.

Challenge in the present petition filed under Section 482

Cr.P.C. is to the order dated 26.5.2017 passed by learned Sessions Judge,

Rewari allowing the revision petition filed against the order dated

16.11.2016 passed by learned Sub Divisional Judicial Magistrate, Kosli in

complaint case No.144 dated 26.7.2012 under Sections 420, 467, 468, 471,

120-B IPC, whereby the present petitioners were discharged.

Factual aspect:

It is a case where a complaint has been filed by the

respondent/complainant-Sumer Singh against the present petitioners,

namely, Kamal Singh and Satpal Singh and one accused, namely, Smt.

Mamta Yadav, for offences punishable under Sections 420, 467, 468, 471

and 120-B IPC on 26.07.2012. The present petitioners were summoned

vide order dated 14.07.2015 by the Ld. Sub Divisional Judicial Magistrate,

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Kosli for offence punishable under Section 120-B IPC whereas accused

Mamta Yadav was summoned for offences under Sections 420, 467, 468,

471 and 120-B IPC. Thereafter, the pre-charge evidence was led and

charges came to be framed on 16.11.2016, thereby discharging the

petitioners and framing charges against Mamta Yadav for offence

punishable under Section 420 IPC.

The complainant/respondent herein went up in revision against

the aforesaid order of discharge on 28.04.2017, Annexure P-3, which was

allowed vide order dated 26.05.2017, Annexure P-4, whereby the

Revisional Court at Rewari has directed the trial Court to pass an order

afresh on the issue of framing of the charge.

Feeling aggrieved of the said order, the present petitioners have

filed revision petition for setting aside the impugned judgment dated

26.05.2017, Annexure P-4, passed by the Ld. Sessions Judge, Rewari.

At the outset, the learned Senior counsel has stated that the the

complainant- respondent is a co-villagers of the petitioners, who bore a

grudge against them, on account of which, the present complaint was filed

by him. Otherwise, he was neither a candidate for the job that Mamta Yadav

secure nor had he been denied obtaining of any educational qualification as

acquired by Mamta Yadav or the domicile acquired by her. Further, Mamta

Yadav has not challenged either the framing of the charge against her or the

impugned order and is facing the trial.

He also submitted that it may be worth a notice that Mamta

Yadav against whom the charge has been framed had neither challenged the

same before the revisional court nor is a petitioner before this Court.

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Submissions:

The First plank of arguments of the learned Senior counsel

representing the petitioner is that the complainant had earlier filed a similar

complaint with same set of allegations against the present petitioners and

one Mamta Yadav on 28.08.2007, which was withdrawn vide order dated

11.06.2009, Ex. D/3, without seeking liberty to file afresh. As such, the

complaint filed on 26.07.2012 by the complainant-respondent was not

maintainable. Learned Senior counsel further submits that the learned

Revisional Court has recorded a finding that as per the record, the objection

regarding the second complaint not being maintainable, was not taken

before the learned Trial Court, which he submits, is contrary to the finding

which was returned by the trial Court, which was to the effect that no

person can be allowed to misuse the process of law and if once a criminal

complaint was instituted and withdrawn without any liberty to file fresh on

same facts, and if such complaint is re-instituted, then there would be no

end to the litigation. In this regard he has taken this Court through para 25

of the impugned judgment and the finding of the trial Court in para 8 in this

regard, which reads thus:-

"8. Coming to culpability of accused No.1, question of double qualification and taking advantage thereof cannot be gone into because earlier criminal complaint Ex.D1 has been withdrawn by present complainant vide order Ex.D3. Similar allegations were levelled and after two yaers of it being pending in the Court, same was duly withdrawn vide statement of complainant Ex.D2. No reason is given in said statement why that complaint was withdrawn. No person can be allowed to misuse the process of law. If once a criminal complaint was instituted and it has been withdrawn, then complainant cannot be given any liberty to file fresh complaint on same facts. If such a complainant is allowed to keep on withdrawing the complaints as and when he deem fit and

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re-institute fresh criminal complaints, then there would be basically no end to litigation. Further, reliance in this regard can be placed upon ratio laid down by Hon'ble Punjab and Haryana High Court in Supinder Singh versus Provident Fund Inspector 1997(4) RCR (Criminal) 449 (P&H)."

As regard the maintainability of the second complaint is

concerned, the learned Senior counsel makes a reference to Section 257 of

the Cr.P.C. to submits that in case the complaint has been withdrawn, the

same amounts to acquittal of the accused. He further refers to Section 300

Cr.P.C, to contend that once a person is acquitted, he cannot be tried again

for the same offence. To buttress this submission, learned Senior counsel

relies upon a judgment passed by a coordinate Bench of this Court in the

case of "Supinder Singh Vs. Provident Fund Inspector" 1997(4) R.C.R.

(Criminal) 449.

Second plank of argument as raised by the learned Senior

counsel is that the scope of the Revisional Court was limited and the

evidence before the trial Court could not have been re-appreciated. He

further contends that the trial Court had rightly considered the very aspect

and the evidence, only then had come to a just conclusion to discharge the

petitioners of the charge under Section 120-B IPC. He further contends that

the Revisional Court while remitting the matter to the trial Court for

deciding afresh the sole fact that has weighed with the Court is that as

petitioner No.1-Kamal Singh and petitioner No.2-Satpal Singh, are father

and husband of Mamta Yadav, respectively, therefore, without their help

she could not have either got prepared the domicile certificate or get the

admission in double education in the same academic session in two courses

i.e. B.A 2nd year and B.A. 3rd year as well as two years' course of JBT.

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Insofar as the limited scope of revisional jurisdiction is

concerned, the learned Senior counsel refers to a judgment of Hon'ble the

Superme Court of India in the case of Hydru Vs. State of Kerala 2004 (12)

SCC 374, and a Coordinate Bench of this Court in the case of "Ram

Sarup Vs. State of Punjab" 2010(15) R.C.R. ( Criminal) 965.

Per contra, learned counsel for the respondent-complainant

submits that Section 300 Cr.P.C. would not be attracted in this case for the

reason that the previous complaint filed by the complainant was withdrawn

at the stage of preliminary evidence and the subsequent complaint, based on

which the present proceedings have been initiated was filed with some

additional facts, as such, he further submits that no proceedings had been

initiated pursuant to the first complaint, therefore, the second complaint

would not amount to double jeopardy and Section 300 of Cr.P.C. is not

attracted. He further submits that the learned trial Court did not dismiss the

second complaint filed by the complaint on the ground of it being not

maintainable. Rather, summons were issued and charge was framed against

Mamta Yadav, however, petitioners were discharged, though wrongly. The

second contention of the learned State counsel is that insofar as the amount

is concerned, the Court has not appreciated any additional evidence as has

been submitted by the learned State counsel, rather it has considered the

evidence that was already on record, based on which the matter has been

remanded back for a decision afresh to properly consider the evidence,

already available on record. He further contended that the petitioners and

Mamta Yadav were in conspiracy with each other in procuring the Domicile

Certificates, both from Haryana and Rajasthan. On the basis of domicile

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obtained from the State of Haryana, Mamta Yadav had secured the

appointment, which was prepared on the basis of mis-information given to

the authorities concerned. It is also submitted by him, that similarly the dual

educational qualification that Mamta Yadav had acquired with the

signatures of her father, petitioner No.1, on the form of admission and the

domicile from the State of Rajasthan was based on the documents of her

husband, petitioner No.2. Similarly, the domicile which was procured from

the State of Haryana, was without she having resided in the village

Nehrugarh as per the statement of Sarpanch-Hoshiyar Singh as CW-3,

Annexure P-5. So the domicile from the State of Haryana was procured by

Mamta Yadav based on the documents of her husband. Thus, the learned

counsel has submitted that the judgment passed by the Revisional Court is

well reasoned and requires no interference.

Heard the arguments advanced by the learned counsel for the

parties at a considerable length.

Discussion:

Admitted fact between the parties is that the complainant

-respondent had filed a complaint in the year 2007, Ex.D1, which was

withdrawn on his statement vide Ex.D2, order which was passed permitting

him to withdraw was dated 11.6.2009, vide Ex.D3.

Thereafter, the 2nd complaint came to be filed by him on

26.7.2012 on the same set of allegations against Mamta Yadav, her father,

Kamal Singh, petitioner No.1 and her husband, Satpal Singh petitioner No.2

herein, wherein vide order dated 14.7.2015, Mamta Yadav was summoned

to face the trial under Section 420, 467, 468, 471 and 120-B IPC, whereas

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petitioners herein under Section 120-B IPC. It is noticeable that the charge

was framed vide order dated 16.11.2016 only against Mamta Yadav wife of

Satpal under Section 420 IPC. However, vide order of even date, the

petitioners herein were discharged holding that as no prima facie case was

found to be made out against them, which if unrebutted could warrant their

conviction.

Relevant para in this regard requires to be reproduced

hereunder:-

"7. Having heard the arguments raised by learned counsels for both the parties, indeed there seems to be no evidence of any conspiracy between accused No.2 and 3. Mere fact that accused No.2 happens to be father of accused No.1 and accused No.3 happens to be the husband of accused No.1 cannot ipso-facto imply that they had any role to play in commission of any offence at all. If any wrong information was indeed furnished or any wrong certificate was issued or job was obtained by showing wrong particulars, then it cannot be deemed that it in conspiracy with accused No.2 and 3. There has no positive and cogent evidence against said accused No.2 and 3 to show that prima facie any criminal conspiracy was committed. As no prima facie case against accused No.2 and 3 is made out which, if unrebutted could warrant their conviction, accused No.2 and 3 stand discharged."

A perusal of the said order reveals that a specific objection had

been taken on behalf of the petitioners that in view of a similar complaint

filed by the complainant-respondent, having been withdrawn in the year

2009, the second complaint on the same cause of action was not

maintainable in view of the judgment of this Court in the case of Supinder

Singh (supra). A categoric finding was returned by the trial Court to the

effect that no person can be allowed to misuse the process of law and if

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once, criminal complaint was withdrawn, the complainant cannot be

permitted to reinstitute a fresh complaint, else there would be no end to

litigation.

In the revision whereby the Revisional Court has set aside the

order and remitted the matter to pass a order afresh on the issue of framing

of charges, it is relevant to note that with regard to the objection of 2nd

complaint not being maintainable, it has so been recorded it ought to have

been taken before the trial Court, which it seems has not so been done and

thus, the said objection was held to be not tenable at the revisional stage, is

contrary to the record.

Analysis:

In the case of Supinder Singh (supra), a Coordinate Bench of

this Court had considered the same very issue as regard the maintainability

of 2nd complaint, after the first having been withdrawn and had held that the

withdrawal of the complaint amounts to acquittal of the accused in terms of

Section 257 Cr.P.C., even if in the order permitting withdrawal, it is not

specifically mentioned that the accused stands acquitted. It was further held

that a fresh complaint would not be maintainable in view of provision in

Section 300 Cr.P.C. as well as Article 20(2) of the Constitution of India. A

coordinate Bench of this Court in the case of Ram Sarup (supra) had also

held that re-appreciation of evidence at the revisional stage is not

permissible and the power of this Court to interfere at such a stage is very

limited. It is thus, the considered opinion of this Court that the aforesaid

judgment on all fours, applies to the facts of the present case.

In so far as, the impugned order is concerned, the Court has

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come to the decision that the petitioners herein were wrongly discharged for

the solitary reason that the petitioners herein being father and husband of

Mamta Yadav without whose knowledge and active support the cheating

allegedly committed by her could not have been done. Such conclusion

having been drawn is ex facie perverse. The mere signature of father of

petitioner No.1 on the application, whereby Mamta Yadav had sought

admission, wherein it was mentioned that in case any fact was found to be

incorrect the admission could be cancelled and the fact that she not having

resided in village Nehrugarh or having a voter card or ration card, has been

found to be the basis of conclusion that the husband of Mamta Yadav must

have helped her in getting her domicile certificate issued does not prima

facie attract Section 120-B IPC to them.

The submission of learned counsel for the complainant-

respondent that Section 300 Cr.P.C. would have been attracted only, if the

previous complaint filed by the complainant was withdrawn after the

preliminary evidence had been recorded, is not tenable in view of the

judgment of in the case of Supinder Singh (supra), wherein also the

complaint had been withdrawn at the initial stage itself and the ground

mentioned therein was that accused firm had shifted to Calcutta and thus,

the complainant did not want to proceed with the complaint.

In this regard, it is imperative to make a specific reference to

paras 11, 13 and 14 of the Supinder Singh (supra),which read thus:-

"11.The learned counsel for the petitioners contends that similarly when a complaint is withdrawn by the complainant, the Magistrate has to permit him to withdraw the same and shall thereupon acquit the accused in view of Section 257 of the Criminal Procedure Code. He, therefore, contends that even

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though the learned Additional C.J.M. has not mentioned that he was acquitting the petitioners herein, he should be taken to have done in view of the provisions of Section 257.

12. xx xx xx

13. The learned counsel for the petitioners also relied upon another decision of this Court in Surjit Kaur Vs. State of Punjab, 1984(1) R.C.R. 169, in support of his contention that once the complaint is dismissed as withdrawn by the Magistrate, a fresh complaint on the same facts and cause of action is not competent. What happened was, the respondent (before the High Court) in that case filed a complaint before the Judicial Magistrate Ist Class under Sections 419, 420 465, 466, 467 and 471 Indian Penal Code against the petitioner. The complaint was dismissed as withdrawn in view of the statement given by the complainant. The Court had even given liberty to the complainant to file a fresh complaint after collecting the documents. On the very next day, a fresh complaint was filed by the respondent against the petitioner, which was challenged by the petitioners before the High Court as incompetent on the ground that it was on the same facts and cause of action. It was held that the second complaint is not competent.

14. In the light of the above discussions, the position that emerges is this: Though, a complaint is dismissed merely as withdrawn, the accused in the complaint should be considered to have been acquitted in view of the provisions contained in Section 257 Criminal Procedure Code, 1973 since this section mandates that while the Magistrate permits the complainant to withdraw the complaint, he shall acquit the accused against whom the complaint is so withdrawn. So even if in the final order of the learned Magistrate, it is not mentioned that the accused is/are accquitted, but the complaint is simply dismissed as withdrawn, we have to take the order to its legal consequence, i.e. we have to consider that the accused have been acquitted. Once the accused is acquitted, no fresh complaint is competent on the basis of the same facts and cause of action in view of the provisions contained in Section 300 Criminal Procedure Code, 1973 as well as the provisions contained in clause (2) of the Article 20 of the Constitution of India. Therefore, the contention of the learned counsel for the respondent that the complaint has been merely dismissed as withdrawn and that the accused have not been acquitted, will be of no avail."

It, thus was held, that though, a complaint was dismissed as

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withdrawn, the accused in the complaint should be considered as acquitted.

Therefore, even if in the final order of the learned Magistrate, it does not

find mentioned that the accused is/are acquitted but the complaint is simply

dismissed as withdrawn, the legal consequence would remain the same.

In so far as the submission of the learned counsel for the

complainant-respondent that the Revisional Court had not appreciated any

additional evidence rather had considered the evidence that was already on

record, the same is permissible in the revisional jurisdiction, is flawed for

the reason that the conclusion drawn by this Court based on the judgments

of the Hon'ble Supreme Court of India and this Court is on the ground that

the revisional Court does not have the power to even re-appreciate the

existing evidence and can only interfere in an order passed by the

subordinate Court if there is any procedural irregularity or material

evidence has been overlooked or misread by the subordinate Court, which

was not the basis made out in the impugned order for purpose of setting

aside the order passed by the trial Court whereby the petitioners had been

discharged.

As per law laid down in a revision filed against acquittal by a

private party, the Court exercising its power under Section 397 and 401

Cr.P.C. can interfere only if there is any procedural irregularity or if any

material evidence has been overlooked or misread by the subordinate Court.

In this regard, a specific reference to para 3 in the case of Hydru (supra)

requires to be made, which reads thus:-

"From the bare perusal of the impugned order, it would appear that the High Court upon reappraisal came to a conclusion different from the one recorded by the appellate court. It is well settled that in revision against

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acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower. No procedural irregularity has been found by the High Court in the order of the Sessions Court whereby the appellant was acquitted. Therefore, we are of the view that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional powers, as such the same is liable to be interfered with by this Court. "

Still further, a reference requires to be made to para 10 to 14 of

the judgment in the case of Ram Sarup (supra), which reads thus:-

"10. Even otherwise, the scope of interference at the revisional stage is very limited in nature. It has been observed by the Apex Court in case Duli Chand vs. Delhi Administration, AIR 1975 SC 1960 that the jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon a re-appreciation of evidence. Further, on the issue, it held as under :-

"Now, it is obvious that the question whether the appellant was guilty of negligence in driving the bus and the death of the deceased was caused on account of his negligent driving is a question of fact which depends, for its determination, on an appreciation of the evidence. Both the learned Magistrate trying the case at the original stage and the learned Additional Sessions Judge hearing the appeal arrived, on an assessment of the evidence, at a concurrent finding of fact that the death of the deceased was caused by negligent driving of the bus by the appellant. The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct."

11. Similarly, while discussing the scope of revision, the Apex Court in case State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, AIR 1999 SC 981 held

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as under :-

"Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re[1]appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."

12. In any case, the re-appreciation of the evidence at the revisional stage is not permissible and the power of this Court to interfere at such a stage is very limited. It was so observed in case State of Maharashtra vs. Sanjay Mangesh Poyarekar 2008 (4) RCR (Crl.) 555.

13. Similarly, the Apex Court in Bindeshwari Prasad Singh alias B.P. Singh and others vs. State of Bihar (Now Jharkhand) and another, AIR 2002 SC 2907 observed that in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there is no justification for the High Court to interfere in exercise of its revisional jurisdiction.

14. The records of the instant case transpire that the courts below have returned a finding of fact on proper appreciation of the evidence and the impugned judgment sans any perversity, irregularity or illegality. The sentence awarded also commensurates with the offence committed. Thus, there is no ground to interfere in the impugned judgments."

Conclusion:

In view of the peculiarity of the facts and circumstances of the

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case as also in view of the law laid down referred to above, the present

petition is allowed. The impugned order dated 26.5.2017, Annexure P-4, is

set aside.

Nothing herein shall be treated as an expression on the merits

of the case and the trial court shall proceed and decide the matter,

independent of any observation made in the present judgment, which was

only for the purpose of adjudicating the present petition.

30 .9.2022                                        (AMAN CHAUDHARY)
gsv                                                    JUDGE

Whether speaking/reasoned                   :        Yes / No

Whether reportable                          :        Yes / No




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