CRIMINAL MISCELLANEOUS No.1761 OF 2001
In the matter of an application under Section 482 of the Code of
Criminal Procedure
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GYANDEO SHARMA, SON OF SHRI SHUK DEO SHARMA,
RESIDENT OF BORING ROAD, P.S. SHRI KRISHNA PURI,
DISTRICT-PATNA ———– PETITIONER
Versus
THE STATE OF BIHAR
————-
For the petitioner: S/Sri Ajay Kumar Thakur and
Anupama Sharma
For the State: Smt. Indu Bala Pandey, A.P.P.
————–
PRESENT
THE HON’BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction
of this Court under Section 482 of the Code of Criminal Procedure, has
prayed for quashing of an order dated 21.12.2006, passed by the learned
Chief Judicial Magistrate, Patna in G.R. No.980 of 1999/ Tr.No.82 of
1996, whereby it was ordered to frame charge under Section 147 of the
Indian Penal Code. The petitioner has also prayed for quashing of the order
dated 27.11.2000 passed by the learned Chief Judicial Magistrate, whereby
the petition filed on behalf of the petitioner under Section 300(1) of the
Code of Criminal Procedure was rejected.
2. Short fact of the case is that on 10.3.1990, three F.I.Rs
were lodged in Shri Krishna Puri Police Station almost in a connected
occurrence. The first case i.e. S.K. Puri P.S. Case No.31 of 1990 was
registered for the offences under Sections 146, 148, 149, 323, 307, 336,
353 of the Indian Penal Code, Section 27 of the Arms Act and Sections 3
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and 5 of the Damage to Public Property Act against Satya Narayan
Mishra and 10 others including the petitioner and 20-25 unknown persons.
On the same day, the second F.I.R. vide S.K. Puri P.S. Case No.32 of
1990 was registered against Satya Narayan Mishra, in which the petitioner
was the informant and in third case i.e. S.K. Puri P.S. Case No.33 of 1990,
the petitioner was made accused and Satya Narayan Mishra was the
informant.
3. The present case is in relation to S.K. Puri P.S. Case
No.31 of 1999, in which 11 persons were named in the F.I.R. along with
20-25 unknown persons. The said F.I.R. was lodged on the self-statement
of the Officer Incharge of Shri Krishna Police Station, wherein it was
disclosed by the informant that on the same day i.e. on 10.3.1999 at 9.00
P.M. he heard a rumour that there was tension in between the parties over a
disputed land and both the parties variously armed with fire-arms had
assembled there and there was apprehension of causing blood-shed. After
getting the said information, the informant i.e. the Officer Incharge of Shri
Krishna Puri Police Station along with police force proceeded to the place
of occurrence through Police Mobile No.BPZ 8973. As he proceeded
towards the place of occurrence i.e. Plot No.901, Khata No.50, situated
adjacent to the north of Tapasya Market, over which there was already a
proceeding under Section 144 of the Code of Criminal Procedure between
the petitioner and one Satya Narayan Mishra, the informant noticed that
both the parties along with their men variously armed with fire arms had
assembled and were throwing brick bats upon each other. On chase, the
police apprehended two persons armed with loaded rifle and gun and they
disclosed their names and both the persons, who were apprehended, were
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men of Satya Narayan Mishra . The police also apprehended Satya
Nartayan Mishra in injured condition at the place of occurrence. The
petitioner was also apprehended. However, the men of the petitioner fled
away. It was disclosed by the informant that while the apprehended
persons including the petitioner were being carried by the police in the
police Jeep, 25-30 rioters (associates of Satya Narayan Mishra) again
assembled there and started pelting stones and brick-bats on the Police
Jeep, wherein the glass of the Jeep was broken and the driver of the said
Jeep received serious injuries, whereby he became unconscious. All the
rioters were challenging for releasing the accused Satya Narayan Mishra.
In the meanwhile, Special Mobile and Mobile of Budha Colony arrived
there and with the help of other Force, the police party could arrested some
of the accused persons and also seized one motorcycle of the accused,
which was left by the accused persons, while fleeing away. On the basis of
the self-statement of the Officer Incharge of Shri Krishnapuri Police
Station an F.I.R. vide S.K. Puri P.S. Case No.31 of 1990 was registered
and the police, thereafter, investigated the case. Similarly, on the basis of
fardbeyan of the petitioner one another F.I.R. vide Shastri Nagar P.S. Case
No.32 of 1990 was registered against Satya Narayan Mishra and others and
third F.I.R. was lodged on the basis of the fardbeyan of Satya Narayan
Mishra against the petitioner and others.
4. In S.K. Puri P.S. Case No.31 of 1999, after
investigation Chargesheet was submitted against all the eleven accused
persons including the petitioner for the offences under Sections
147,148,149,307, 323/426 of the Indian Penal Code. After the order of
cognizance and supply of police papers, the case was committed to the
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Court of Session. However, at the stage of charge, the learned 11th Addl.
Sessions Judge,Patna considered that no case under Section 307 of the
Indian Penal Code was made out and, as such, the learned Addl.Sessions
Judge remitted back the matter to the court of Magistrate for trial . At the
stage of charge, a discharge petition was filed on behalf of the petitioner,
which was rejected on 4.8.2005 by the learned Chief Judicial Magistrate,
Patna.
5. The petitioner aggrieved with the rejection of
discharge petition approached this Court by filing a quashing application
vide Cr.Misc.No.12954 of 1995 and a Bench of this Court vide its order
dated 31.10.1995 ( Annexure-6) quashed the order of rejection of
discharge petition passed by the learned Chief Judicial Magistrate and
remitted back the matter to the learned Magistrate with a direction to pass
afresh order in accordance with law after giving opportunity of hearing
to the petitioner. Accordingly, the quashing application was allowed. After
the case was remitted back to the learned Magistrate, the petitioner filed a
detailed discharge petition. However, by the impugned order i.e. the order
dated 21.12.1996 again rejected the discharge petition and direct for
framing of the charge under Section 147 of the Indian Penal Code.
6. The petitioner while pressing the discharge petition
before the learned Chief Judicial Magistrate had argued that in relation to
the same occurrence, the petitioner was also made accused in S.K. Puri
P.S.Case No.33 of 1990 , which was registered for offences under Sections
147,323, 337 , 338 , 426 of the Indian Penal Code. In that case the police
had submitted chargesheet under Section 307 and other allied Sections of
the Indian Penal Code and after cognizance and completion of processes
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under Section 207 of the Code of Criminal Procedure the case was
committed to the court of Session and the petitioner was put on trial vide
Sessions Trial No.442 of 1999 and the petitioner after full-fledged trial was
acquitted from all the charges. Since the learned trial Judge was of the
opinion that the petitioner had purchased the suit land and it was proved
that he had only resisted the attempt of the informant ( Satya Narayan
Mishra ) to forcibly occupy the land in the right of his private defence of
his property and the learned trial Judge also found that the force used was
not excessive keeping in view the evidence on record relating to the
injuries , which were itself doubtful and finally by Judgment dated
25.1.1992 the petitioner got a clean acquittal. Accordingly, it was prayed
on behalf of the petitioner that for the same offence, the petitioner may not
be put on second trial. However, the learned Chief Judicial Magistrate by
its order dated 21.12.1996 again rejected the petition for discharge. Even
after rejection of discharge petition in the year 1996, there was no progress
in the trial and, thereafter, on behalf of the petitioner one another petition
was filed in the court of learned Chief Judicial Magistrate, in view of
Section 221 (2) and Section 300 (1) of the Code of Criminal Procedure for
discharging the petitioner on the ground that for the same offence the
petitioner was put on trial and, thereafter he got an order of acquittal.
However, the learned Chief Judicial Magistrate vide its order dated
27.11.2000 rejected the said petition merely on the ground that the learned
Magistrate was not having jurisdiction to review or recall its earlier order
keeping in view the fact that the petitioner’s discharge petition was already
rejected finally by his order dated 21.12.1996.
7. Aggrieved with the order dated 27.11.2000 as well as
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the order dated 21.11.1996 passed by the learned Chief Judicial Magistrate,
the petitioner approached this Court by filing the present petition, which
was admitted for hearing on 20.11.2001. While admitting, it was directed
that during the pendency of this application further proceeding in G.R.
Case No.980 of 1990/ T/R.No.82 of 1996, pending in the court of Chief
Judicial Magistrate, Patna, shall remain stayed. The order of stay is still
continuing.
8. Sri Ajay Kumar Thakur, learned counsel for the
petitioner, while challenging both the orders submits that the learned
Chief Judicial Magistrate in its order dated 21.12.1996 has grossly erred in
observing that the petitioner was not earlier charged or tried for the
offence under Section 147 of the Indian Penal Code . It was submitted by
Sri Thakur, learned counsel for the petitioner that for the same occurrence,
three F.I.Rs were lodged. Amongst them, one of the case was S.K. Puri
P.S. Case No.33 of 1990, in which the petitioner was put on trial and
finally, the petitioner got a Judgment of acquittal on 25th January,1992 in
Sessions Trial No.442 of 1990( S.K. Puri P.S. Case No.33 of 1990) passed
by the learned Second Addl. Sessions Judge, Patna. It was argued that in
one occurrence if the petitioner was already put on trial and finally got
order of acquittal, there was no ground for the learned Chief Judicial
Magistrate for rejecting the petition filed on behalf of the petitioner under
Section 300 (1) of the Code of Criminal Procedure. Sri Thakur, learned
counsel for the petitioner has emphasized that the provision under Section
300 (1) of the Code of Criminal Procedure is mandatory, which says that
once a person is tried by a court of competent jurisdiction for an offence
and acquitted of such charge and, such, acquittal remains in force, he shall
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not be liable to be again tried for the same offence and for the same facts
for any other offence. Sri Thakur, learned counsel for the petitioner has
elaborately argued that offence in one occurrence permits only one
prosecution and once the petitioner was prosecuted for an occurrence in the
same transaction at subsequent stage, he cannot be directed to face trial for
any offence for the same transaction. In support of his arguments , learned
counsel for the petitioner has heavily relied on Judgments reported in AIR
1954 SC 375, ( S.A.Venkataraman Vs. Union of India and Anr.), AIR
1961 SC 583 ( Surajpal Singh Vs. State of Uttar Pradesh) and AIR 1962
SC 1246 ( Jawala Ram & others Vs. The State of Pepsu (now Punjab) and
others. It was also submitted by Sri Thakur, learned counsel for the
petitioner that after the Judgment of acquittal dated 27.10.1990 passed by
the learned Second Addl. Sessions Judge, Patna in Sessions Trial No.442
of 1990, the informant of the case, namely, Satya Narayan Mishra had
preferred a revision vide Cr.Revision No.103 of 1992, which too stood
dismissed by this Court on 17.7.1992 (Annexure-4). According to Sri
Thakur, learned counsel for the petitioner acquittal of the petitioner in
Sessions Trial No.442 of 1990 ( S.K. Puri P.S. Case No.33 of 1990) had
attained its finality and thereafter no prosecution of the petitioner for the
same offence would be permissible and both the impugned orders as well
as entire criminal proceeding so far as petitioner is concerned, is liable to
be set aside.
9. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor,
appearing on behalf of the State has strongly opposed the prayer of the
petitioner. It was submitted by Smt. Pandey, learned Addl.Public
Prosecutor that it was a serious case, in which while the police after
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apprehending the accused persons including the petitioner was carrying
them on police Jeep, the Police party was attacked by the rioters that too
for getting the apprehended accused persons released and as such, keeping
in view the seriousness of the offence, this Court may not interfere with
either of the orders. It was further submitted that so far as the order dated
27.11.2000 passed by the learned Chief Judicial Magistrate is concerned, it
was passed in accordance with the statutory provisions contained in the
Code of Criminal Procedure. It was submitted that there is restriction for
reviewing or recalling any order under the Code of Criminal Procedure
and, as such, the learned Magistrate has rightly not passed an order for
recalling the earlier order.
10. Besides hearing learned counsel for the parties, I have also
perused the materials available on record. So far as argument advanced by
Sri Thakur, learned counsel for the petitioner that for the same offence the
petitioner was put on trial and thereafter acquitted and, as such, he may not
be put on trial so far as the second case is concerned, the Court is of the
opinion that in view of the facts and circumstances of the present case, the
said argument has got no force. In the present case, three F.I.Rs. for
distinct offence were lodged. In S.K. Puri P.S. Case No.32 of 1990, the
petitioner himself was the informant, in which Satya Narayan Mishra and
others were made accused on an allegation that the accused persons being
aggressors had assembled unlawfully and committed the offence.
Similarly, in S.K. Puri P.S. Case No.33 of 1990, the petitioner was made
accused on the basis of fardbeyan of Satya Narayan Mishra that the
petitioner and others had formed unlawful assembly and attacked the
informant of that case. So far as the present case i.e. S.K. Puri P.S. Case
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No.31 of 1990 is concerned, there is specific allegation that while the
apprehended accused persons were being carried in the Police Jeep, the
Police Party was attacked by the men of accused persons i.e. rioters and, as
such, after examining the fact of three cases, the present case cannot be
categorized as a case of same offence or committed in same transaction.
The present occurrence was entirely different and distinct, in which police
party was attacked by the accused persons. Accordingly, the plea of the
petitioner that he was already put on trial has got no relevance for just
adjudication in the present case. However, after going through the facts
and material of the present case, the Court is of the opinion that on merit
the petitioner deserves some relief from this Court. In the present case, i.e.
S.K. Puri P.S. Case No.31 of 1990, the informant/ Officer Incharge had
made a categorical statement that while he approached the place of
occurrence, accused persons, who were indulged in throwing stones and
brick-bats on each other over a land over which proceeding under Section
144 of the Code of Criminal Procedure was going on, all the accused
persons after noticing the police started fleeing away. However, some of
the accused persons including the petitioner were apprehended by the
police and, thereafter, they were kept in the Police Jeep and were being
carried to the Police Station. It was categorical stand of the Officer
Incharge that in the occurrence, all the men of the petitioner had fled away
and number of accused persons, who were arrested, were men of Satya
Narayan Mishra and all were kept in the Jeep. Thereafter, 20-25 men of
accused Satya Narayan Mishra started pelting stones on the police jeep
challenging for release of Satya Narayan Mishra. This fact indicates that
while the petitioner was already in custody, he had not indulged in any
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type of occurrence in relation to S.K. Puri P.S. Case No.31 of 1990. On
merit, the Court is of the opinion that involvement of the petitioner was
doubtful. Of course, while hearing a petition under Section 482 of the
Code of Criminal Procedure, it is not desirable or permissible for this
Court to record such opinion, but keeping in view the over all facts and
circumstances, particularly the fact that in one case, the petitioner was
already tried and acquitted and the fact that in the present case alleged
occurrence had taken place about 20 years back in the year 1990 , without
any progress in the trial, it would not be appropriate for this Court to direct
that the petitioner to appear before the Court below for framing of the
charge and face trial.
11. In view of the facts and circumstances of the present case,
the Court is of the opinion that allowing the proceeding before the court
below in S.K.Puri P.S. Case No.31 of 1990 would amount to allowing
abuse of the process of the Court and, as such, it is a fit case for
interference with the impugned orders. Accordingly, both the orders i.e.
order dated 21.12.1996 and order dated 27.11.2000 passed by the learned
Chief Judicial Magistrate in G.R. Case No.980 of 1990/ T.R. No.82 of
1996 are hereby set aside so far as petitioner is concerned and the petition
stands allowed.
( Rakesh Kumar, J.)
Patna High Court,Patna
Dated : the 11th February,2011
Nawal Kishore Singh/ N.A.F.R.