Kumari Rinki Vs State of U.P. and Others

Imtiyaz Murtaza and R.M. Chauhan, JJ.@mdashChallenge in the present petition is to the F.I.R. dated 20.9.2007 registered at case crime No. 2331 of 2007 u/s 498A, 304B IPC and 3/4 of the Dowry Prohibition Act P.S. Kotwali District Mainpuri dovetailed with the submission in the forefront that the trial of co-accused has already ended in acquittal and there is no prospect of the case ending in conviction against the petitioner.

2. The abridged version of the F.I.R. lodged by the complainant that her daughter was constantly persecuted for bringing less dowry and she narrated her plight on various occasions whenever she happened to talk on phone with the deceased daughter. On the day of occurrence i.e. 27.6.2007, the deceased was beaten black and blue and on being tipped, the complainant went to take her daughter and found injuries on her daughter''s entire body. It is further alleged that the accused persons declined to send her daughter with the complainant. She also approached the police station concerned with the complaint but her daughter was not sent. Again it is alleged, the complainant went to take her daughter but she (complainant) was also given beating. It is also alleged that her daughter disclosed to the complainant that the accused persons were demanding money for the marriage of their daughter Rinki (petitioner in the instant case) and wanted that the complainant should sell the land to meet the demand of further dowry. On 19.9.2007 she received information that the accused persons had killed her daughter by hanging her. Upon receipt of information, she immediately rushed to the place where she came to know that post mortem of the body of deceased Arti had already been conducted. Thereafter she lodged the F.I.R in the case.

3. It would appear from the record that in all 10 accused persons were nominated in the F.I.R. namely Dadiya, Janki Devi mother in law, Mehesh, Surendra, Virendra, Anil, Km. Rinki, Shashi, Sunita and Neeraj out of which the present petitioner was related as the sister-in-law of the deceased. It would further appear that after submission of the charge sheet. Smt. Janki Devi and Neeraj, mother-in-law and husband of the deceased were tried separately qua the other co-accused. It is alleged that the witnesses including complainant turned hostile and the trial in the aforesaid case culminated in acquittal of both the accused persons vide judgement dated 11.6.2008 rendered by learned Sessions Judge Mainpuri.

4. It is argued by the learned Counsel for the petitioner that since the co-accused have already been acquitted in the trial by the court below their involvement having been found to be not beyond suspicion, there is no prospect of the case against the petitioner ending in conviction and if the case against the petitioner is allowed to continue, it will be a sheer wastage of valuable time of the court and in the circumstances, relief has been sought for quashment of the F.I.R. It is prayed that during pendency of the present petition, the arrest of the petitioner be stayed. On further arguments, the learned Counsel stated that even if the accused persons are tried separately, the role of the petitioner is not worse off qua the co-accused, who have already been acquitted and therefore, it would be sheer drought on court''s precious time besides being an empty formality and futile exercise in the void.

5. It is obvious in the present case that the petitioner has not yet surrendered to face the trial and therefore, the learned Counsel has prayed for stay of arrest of the petitioner during pendency of the present petition in this Court.

6. We have heard learned Counsel for the petitioner and also Sri A.K. Sand, learned A.G.A appearing for the State authorities.

7. It is settled principle of the law that every case turns on its own facts and evidence as may be adduced and acquittal of a co-accused in the trial emanating from self same case crime does not necessarily entail acquittal of the other co accused who are yet to be put on trial.

8. The decision in S.P.E., Madras Vs. K.V. Sundravelu, is a decision of pivotal significance in which the Apex Court held that the commitment once made u/s 213 Cr.P.C. by a competent Magistrate the same could be quashed only on a point of law. The facts in that case were that the respondent was carrying on business as an exporter of hand-loom cloth in Madras and he was alleged to have committed offences u/s 420, 471 read with Section 466 IPC and Section 132 of the Customs Act relating to certain bales of goods covered by two invoices. The Court before commitment, split his case in two, covered by each of the two invoices. The respondent in the first case was acquitted by the High Court on 9.3.1974. The second case was then taken up for trial. The respondent applied to the High Court for quashing the proceedings. The High Court quashed the proceedings pending in the court of Asstt. Sessions for three reasons namely, (i) the evidence in both the cases being similar and one case having ended in acquittal, further prosecution in the present case would amount to abuse of the process of the court; (ii) even otherwise, the alleged offences were committed somewhere in 1955 and it would be unfair if not unjust to put the petitioner on trial after about 10 years; and (iii) the charge was not likely to stand. The Apex Court further ruled that merely because the trial in the second case had not started, there was no justification for taking the view that evidence in both the cases was similar. Moreover, it was not the requirement of law that if one case had ended in acquittal prosecution in another case would be illegal. It could not also be said that it would be illegal to commence the trial in a case after a period of 10 years or so. So also, it could not be said that the High Court''s opinion that the charge was not likely to stand the trial was on a point of law within the meaning of Section 215. The Apex Court further held that the judgment in the first case was clearly irrelevant and could not be taken into consideration for making the order in the second case. Para 5 being relevant is quoted below.

5. The High Court has in fact taken its earlier judgment in Sessions Case No. 34 of 1968, which ended in acquittal, into consideration in the present case, and has reached the conclusion that the present appeal is "not likely to stand." Here again, the High Court lost sight of the provisions of Sections 40 to 44 of the Evidence Act which state the circumstances in which previous judgment are relevant in civil and criminal cases. Thus Section 40 states the circumstances in which a previous judgment may be relevant to bar a second suit or trial, and has no application to the present case for the obvious reason that no judgment, order or decree is said to be in existence in this case which could in law be said to prevent the Sessions Court from holding the trial. Section 41 deals with the relevancy of certain judgements in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. Section 42 deals with the relevancy and effect of judgements, orders or decrees other than those mentioned in Section 41 in so far as they relate to matters of a public nature, and is again inapplicable to the present case. Then comes Section 43 which clearly states that judgements, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act. As it has not been shown that the judgment in Sessions Case No. 34 of 1968 could be said to be relevant under the other provisions of the Evidence Act, it was clearly "irrelevant" and could not have been taken into consideration by the High court for the purpose of making the impugned order. The remaining Section 44 deals with fraud or collusion in obtaining a judgment, or incompetency of a court which delivered it, and can possibly have no application in the present case. It would thus appear that the High Court not only lost sight of the above facts, but also ignored the provisions of Section 215 of the Code of Criminal procedure and thus committed an error of law in basing the impugned judgment on a judgment which was clearly irrelevant.

9. Yet another decision on the point is K.G. Premshanker Vs. Inspector of Police and Another, . The quintessence of what the Apex Court held therein is that the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act in civil suits between the same parties. Principle of res judicata may apply, in a criminal case. Section 300 of Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied. Moreover, if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. Further, the judgment, order or decree passed in a previous civil proceedings, if relevant, as provided under Sections 40 to 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Hence, in each and every case, first question which would require consideration is - whether judgment, order or decree is relevant? If relevant - its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case. It was further observed by the Apex Court that where the complainant in a criminal case had also filed a civil suit for damages against the accused in criminal case and the trial Court dismissed the suit, the criminal prosecution would not be required to be dropped on that ground because under the Evidence Act to what extent judgements given in the previous proceedings are relevant is provided and therefore it would be against the law if it is held that as soon as the judgment and decree is passed in a civil suit the criminal proceedings are required to be dropped if the suit is decided against the plaintiff who is the complainant in the criminal proceedings.

10. The recent decision on the point is Rajan Rai Vs. State of Bihar, In this case, the Apex ''Court elucidating his view on Section 40 of the Evidence Act observed on the same lines as contained in para 5 of the decision of the Apex Court in S.P.E., Madras Vs. K.V. Sundravelu, The Apex Court expatiated that Section 40 of the evidence Act states the circumstances in which a previous judgment may be relevant to bar a second suit or trial. Section 40 has no application to the present case for the obvious reasons that no judgment, order or decree is said to be in existence in this case which could in law be said to prevent the Sessions Court from holding the trial. The Apex Court further expatiated on Section 41 of the Evidence Act observing that this Section deals with the relevancy of certain judgements in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. The Apex Court also observed that as it has not been shown that the judgment of acquittal rendered by the High Court in appeals arising out of earlier sessions trial could be said to be relevant under the other provisions of the Evidence Act it was clearly irrelevant and could not have been taken into consideration by the High Court while passing the impugned judgment. Further the Apex Court observed that Section 44 of the Evidence Act deals with fraud or collusion in obtaining a judgment or incompetency of a court which delivered it and can possibly have no application in the present case. In ultimate analysis, the Apex held that it would thus appear that the High Court was quite justified in ignoring the judgment of acquittal rendered by it which was clearly irrelevant. The Apex Court in the said decision placed credence for the view on the decision of Karan Singh Vs. State of Madhya Pradesh, in which the Apex Court held as under:

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''s case and the decision there arrived at on that evidence would be wholly irrelevant in considering the merits of the appellant''s case.

11. In the ultimate analysis, the Apex Court held that in view of the foregoing discussion, we are clearly of the view that the judgment of acquittal rendered in the trial of other four accused persons is wholly irrelevant in the appeal arising out of trial of appellant Rajan Rai as the said judgment was not admissible under the provisions of Sections 40 to 44 of the Evidence Act. It was further observed that every case has to be decided on the evidence adduced therein. It was also observed that the case of the four acquitted accused persons was decided on the basis of evidence led there while case of the present appellant has to be decided only on the basis of evidence adduced during the course of his trial. Para 8 of the judgment being relevant on the point is quoted below.

8. Coming to the first submission very strenuously canvassed by Shri Mishra, it would be necessary to refer to the provisions of Sections 40 to 44 of the Indian Evidence Act, 1872 [in short ''the Evidence Act''] which are under the heading ''Judgements of Courts of justice when relevant'', and in the aforesaid Sections the circumstances under which previous judgements are relevant in civil and criminal cases have been enumerated. Section 40 states the circumstances in which a previous judgment may be relevant to bar a second suit or trial and has no application to the present case for the obvious reasons that no judgment, order or decree is said to be in existence in this case which could in law be said to prevent the Sessions Court from holding the trial. Section 41 deals with the relevancy of certain judgements in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. Section 42 refers to the relevancy and effect of judgements, orders or decrees other than those mentioned in Section 41 in so far as they relate to matters of a public nature, and is again inapplicable to the present case. Then comes Section 43 which clearly lays down that judgements, order or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Evidence Act. As it has not been shown that the judgment of acquittal rendered by the High Court in appeals arising out of earlier sessions trial could be said to be relevant under the other provisions of the Evidence Act, it was clearly "irrelevant" and could not have been taken into consideration by the High Court while passing the impugned judgment. The remaining Section 44 deals with fraud or collusion in obtaining a judgment, or incompetency of a court which delivered it, and can possibly have no application in the present case. It would thus appear that the High Court was quite justified in ignoring the judgment of acquittal rendered by it which was clearly irrelevant.

12. The learned Counsel for the petitioners to vindicate his stand cited various decisions of this Court including decision in Smt. Zahrun Nisa v. state of U.P. 2005 (3) JIC 505 All, Sant Ram Master v. State of U.P. 2005 (3) JIC 391 (LB), Prem Kumar alias munna Rai and Anr. v. state of U.P. and Anr. 2005 (3) JIC 781 (All), Crl. Misc. Application No. 9462 of 2003 Hayat Mohammad and Anr. v. State of U.P. and Anr. rendered by a learned Single Judge on 12.11.2003, Pradeep @ Bhondu @ Bantoo v. state of U.P. (51) 2005 ACC 955, Rashim v. State of U.P. and Anr. 2005 (3) JIC 726 (All), Vijai Sahagal v. State of U.P. and Ors. 2006 (1) JIC 145 (All), Virendra Pawar v. state of U.P. and Anr. 2004 (1) JIC 173 (All), Sanju @ Sanjeev Kumar v. State of U.P. and Anr. 2005 (3) JIC 243 (All), Darshan Singh and Ors. v. State of U.P. and Anr. 2006 (1) JIC 165 (All), Kalamuddin Khan v. State of U.P. and Anr. (53) 2005 ACC 305, Muneshwar Singh v. State of U.P. 2006 (1) JIC 974 (All) (LB), Narayan Rai v. State of U.P. and Anr. 2004 (1) JIC 508 (All) and lastly Vijay Sahagal v. state of U.P. and Anr. (53) 2005 ACC 819 . In almost all the cases, the learned Single Judge exercising its inherent jurisdiction u/s 482 Cr.P.C. quashed the proceeding observing that there is no prospect of the case ending in conviction against the applicant and further if the trial is allowed to continue it will amount to wastage of valuable time of the court and will only be a hallow formality and the entire exercise will be rendered futile. Having considered the matter in all its ramification, we do not propose to delve into the details of all the cases cited across the bar and it would suffice to say that the said decisions have been rendered sans consideration whether the judgements of acquittal cited across the bar would be admissible under the provisions of Sections 40 to 44 of the Evidence Act and therefore, considering the ratio flowing from the decision in S.P.E., Madras Vs. K.V. Sundravelu, K.G. Premshanker Vs. Inspector of Police and Another, Karan Singh Vs. State of Madhya Pradesh, and lastly, Rajan Rai Vs. State of Bihar, the aforesaid decisions do not lay down correct law and therefore, cannot be taken aid of for the relief of quashing the proceeding in exercise of power u/s 482 Cr.P.C. or under Article 226 of the Constitution of India in a situation as obtaining in the case in hand.

13. The inference that is deducible from discussion of the above decisions that the judgement of acquittal rendered in the trial of other co accused is wholly irrelevant as the said judgement would not be admissible under the provisions of Sections 40 to 44 of the Evidence Act. It also leaves no manner of doubt that every case has to be decided on the evidence adduced therein and therefore, the case of the petitioner has to be decided on the basis of evidence which may be adduced during the course of trial.

14. The principles that are distilled from the discussion of the above decisions are:

(i)the acquittal of a co-accused in a separate trial cannot be made basis for quashing the proceedings against another co accused who is being separately tried on the principle that each case has to be decided on the evidence adduced in that case;

(ii) judgment of acquittal rendered in one case is not relevant in the case of co-accused separately tried inasmuch as Sections 40 to 44 of the evidence Act deal with relevancy of certain judgements in probate, matrimonial, admiralty and insolvency jurisdiction and therefore inapplicable to a criminal case.

15. In so far as prayer for stay of arrest is concerned, in this connection, attention is drawn to the Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P. and Ors. (56) 2006 ACC 433 in which this Court reiterated the view taken by the earlier Full Bench in Satya Pal and Others Vs. State of U.P. and Others, that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case as laid down by the Apex Court in various decisions including State of Haryana and others Vs. Ch. Bhajan Lal and others, attended with further elaboration that observations and directions contained in Joginder Kumar''s case Joginder Kumar Vs. State of U.P. and others, contradict extension to the power of the High Court to stay arrest or to quash an F.I.R. under Article 226 and the same are intended to be observed in compliance by the Police, the breach whereof, it has been further elaborated, may entail action by way of departmental proceeding or action under the contempt. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the constitution as an alternative to anticipatory bail which is not invocable in the State of U.P. attended with further observation that what is not permissible to do directly cannot be done indirectly.

16. The learned Counsel for the petitioner has not brought forth anything cogent or convincing to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the F.I.R. or that there was any statutory restriction operating on the police to investigate the case.

17. Having scanned the allegations contained in the F.I.R. the Court is of the view that the allegations in the F.I.R. do disclose commission of cognizable offence and therefore no ground is made out warranting interference by this Court.

18. In the conspectus of the above discussions, the petition is accordingly dismissed.