Delhi District Court
Rakesh Kumar S/O Late Sh. Attar Singh vs Smt. Yashwanti D/O Sh. Hazari Lal on 17 December, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
Criminal Revision No. 80/2012
Rakesh Kumar s/o late Sh. Attar Singh
R/o VPO Jatkhor, Delhi
Also at:
Flat o.32, Plot no.6,
Sector12, Dwarka,
New Delhi.
Versus
Smt. Yashwanti d/o Sh. Hazari Lal
w/o Sh. Rakersh Kumar
R/o VPO Rohana, District Sonepat
Haryana.
Date of institution of the case :09102012
Date when final arguments concluded:10.11.2014
Date of pronouncement of judgment :17.12.2014
Appearances: Mr.Pradeep Chaudhary, counsel for revisionist
Mr.Sanjay Rathi, counsel for respondent.
JUDGMENT
1. Petitioner is aggrieved by the order dated 1608 2011 passed by Mr. Ajay Singh Shekhawat Ld. MM, Rohini Court, vide which he was summoned u/s 494 Rakesh Kumar vs Yashwanti Crl.no.80/12 page 1 of15 IPC.
2. Respondent wife was married with petitioner on 09.05.1995 in village Rohna district Sonepat, Haryana. One daughter and a son Nikul were born from wedlock on 10.03.1997 and 11.03.2000 respectively. Their marriage run into rough weathers and litigation started. Respondent had filed the compliant against petitioner and his family members u/s 498/506 IPC on 25.08.2009. Despite lawful marriage in existence with petitioner, petitioner married again with the lady namely Poonam and had a son from the second marriage. On these facts Ld. MM summoned only petitioner and not others who are 7 in number.
3. Ld. counsel for petitioner argued that respondent deliberately withheld from trial court that she had lodged the FIR no. 215 on 08.11.2005 against accused and inlaws u/s 406/498 A/493/494/495/506 IPC in PS Kharkhoda and its trial was conducted in district Sonepat, Haryana. Counsel further argued that respondent had led the evidence of the second marriage of the petitioner but Ld. Magistrate dismissed the Rakesh Kumar vs Yashwanti Crl.no.80/12 page 2 of15 allegations holding that there was no documentary or cogent evidence regarding the fact that accused Rakesh had married with Poonam and that one son was born from that wedlock. The counsel further submitted that respondent had filed appeal against the Judge in the Sessions court, Sonepat against that judgement and the appellant Judge Ms. Jagdeep Singh dismissed the appeal holding that there was no evidence on record, whether documentary or otherwise, regarding the allegations that accused Rakesh had married with Poonam during the subsistence of his marriage with the complainant and that one child was born from that wedlock. The appellate court further held that prosecution could very well have adduced in evidence the birth certificate of the child born out of the wedlock. Ld. Counsel further argued that the maxim issueestoppel is fully applicable in the case in the hand. As per the counsel, the rule of issueestoppel requires following facts:
(a) The parties in the two proceedings must be the same.
(b) The issue that was decided earlier must be identical with that which is sought to be reagitated.
Rakesh Kumar vs Yashwanti Crl.no.80/12 page 3 of15
(c) The issueestoppel arises only when both the earlier and present proceedings are criminal prosecutions.
4. On the other hand Ld. Counsel for respondent argued that the parliament has made it clear in explanation to second 300 Cr.P.C that discharge of accused is not an acquittal for the purpose of second 300 Cr.P.C and hence provisions of second 300 Cr.P.C are not applicable to the present case. He further submitted that though the trial as well as appellate court of Sonepat, Haryana has come to the conclusion that the respondent had failed to prove the second marriage by petitioner with Poonam but that observation is merely a passing reference which was not necessary for the decision of the case u/s 498 A IPC because the charge against the petitioner was not u/s 498 A (a) but it was u/s 498 A (b) IPC. He further submitted that if the trial and appellate courts were to decide that issue, those courts should have framed charge against the petitioner either u/s 494 IPC or 498 A (a) IPC.
5. On issueestoppel counsel for petitioner relied upon Lalta & Ors v. State of Uttar Pradesh AIR Rakesh Kumar vs Yashwanti Crl.no.80/12 page 4 of15 1970 SC 1381. In that case:
"The appellant, Lalta filed a money suit no. 54 of 1955 in the Court of Civil Judge, Gonda against Swami Nath on the basis of a pronote and receipt dated July 1, 1952 on the allegation that Swami Nath had taken a loan of Rs. 250 from him and executed a promisory note and a receipt in lieu thereof. Swami Nath filed a written statement in that suit denying to have taken any loan or to have executed any pronote and receipt in favour of Lalta. It appears that prior to the institution of this suit Swami Nath had filed a complaint on January 24, 1955 against Lalta and others alleging that they had forcibly taken his thumb. impressions on a number of blank forms of pronotes and receipts.. The case arising out of the Criminal complaint came to be heard by a Magistrate Second Class who by his judgment dated May 31, 1956 acquitted Lalta and the other persons complained against. The Criminal case against Swami Nath proceeded on the. charges framed under ss. 342 and 384, Indian Penal Code. In the Civil Suit which was filed by Lalta, the defendant Swami Nath moved an application for a report being called from the Superintendent, Security Press, Nasik regarding the year of the revenue. stamps affixed on the pronote and the receipt. The matter was accordingly referred to the Superintendent, Security Press, Nasik and the report received was that the stamps in question had been printed on December 21, 1953 and were issued for the first time on January 16, 1954 to the Treasury. Subsequent to the receipt of the report Lalta did not put in appearance and the suit was dismissed for default on June 1, 1956. The Civil Judge was moved for filing a complaint against the appellants for committing forgery. The Rakesh Kumar vs Yashwanti Crl.no.80/12 page 5 of15 Civil Judge Gonda actually filed a complaint on, November 9, 1956 against Lalta for offences under ss. 193, 194, 209, 465, 467 and 471, Indian Penal Code and against Tribeni and Ram Bharosey for'an offence under s. 193, Indian Penal' Code. The complaint was enquired into by a First Class Magistrate who committed the appellants to the Court of Sessions. By his judgment dated November 27, 1963, the Assistant Sessions Judge, Gonda convicted Tribeni and Ram Bharosey under s. 467 read with s. 109, Indian Penal Code and sentenced them to 3 years rigorous imprisonment. He found Lalta guilty under s. 467, Indian Penal Code and sentenced him to 3 years rigorous imprisonment. Lalta was also convicted under s. 471, Indian Penal Code and sentenced to 2 years rigorous imprisonment. He was also found guilty under s. 193, Indian Penal Code and sentenced to rigorous imprisonment for two years. The appellants took the matter in appeal to the Sessions Judge, Gonda who by his order dated October 17, 1964 set aside the conviction of Lalta under s. 193, Indian Penal Code but maintained the conviction of the appellants under the other sections. Tribeni, Lalta and Ram Bharosey filed Revision Applications before the Allahabad High Court which by its order dated June 3, 1966 affirmed the order of the Sessions Judge, Gonda and dismissed the Revision Applications.
Hon'ble Supreme held that if the rule of issue estoppel is applied to the present case, it follows that the charge with regard to forgery must fail against all appellants. The reason was that the case of Swami Rakesh Kumar vs Yashwanti Crl.no.80/12 page 6 of15 Nath is solely based upon the allegation that his thumb impressions were obtained on blank forms of promissory notes and receipts on 07011955 by the use of force. If the finding of the second class registered on that issue was final and cannot be reopened, the sub strata of the present case fails and the charges of forgery u/s 467,471 IPC cannot be established against any of the appellants.
6. Another relied upon case is Manipur Administration v. Thokchom,Bira Singh AIR 1965 SC
87. In that case:
3. "there was an agitation by certain political parties and groups in Manipur in April, 1960 for establishing responsible Government in the Manipur area. The agitation took the form of picketing of Government offices and the residences of Government servants and blocking roads in order to paralyse the administration. After this form of agitation continued for some time, the District Magistrate of Manipur promulgated orders under s. 144, Criminal Procedure Code on the morning of April 25, 1960 banning public meetings and processions and these orders were proclaimed and communicated to the public through loudspeakers.
Not withstanding this order, crowds continued to collect and move on the streets shouting slogans. Bira Singhthe respondentwas said to have been leading this mob. A lathi charge by the police took Rakesh Kumar vs Yashwanti Crl.no.80/12 page 7 of15 place but it is stated that because of this the crowd moved a little away and began to pelt stones. The crowd was thereupon directed to disperse, its attention being drawn to the promulgation of the order under s. 144, Criminal Procedure Code and to the fact that the gathering in a public place in violation of the order made it an unlawful assembly; but this command was not heeded and the stonethrowing continued. There was firing by the police which resulted in injuries to certain persons including some of the police personnel. The first information report in regard to the incident and the offences committed during its course was lodged at the Imphal Police station at about 7 p.m. that day in which the informant specified the name of the respondentBira Singh as the leader of this mob. On this a case was registered under ss. 114/149/332/342 and 307 of the Indian Penal Code and s. 7 of the Criminal Law Amendment Act, and a few days later the respondent was arrested. Charges were framed against the respondent who was placed before the Magistrate and the charge sheet stated that the respondent was in the crowd between 3 and 5 p.m. on that day, that the crowd was an unlawful assembly, that he was among those who pelted stones which caused grievous hurt to one person and simple hurt to others and also caused damage to the InterState Police Wireless Station. Along with (1) A.I.R. 1956 S.C. 415.
4. The question of law that arises in this case is by reason of a prior prosecution of the respondent in which he was acquitted. That prosecution was founded on a complaint against him filed on May Rakesh Kumar vs Yashwanti Crl.no.80/12 page 8 of15 12, 1960 under s. 188, Indian Penal Code in connection with his participation is a member of the same crowd in regard to which the charge which is the sub ject matter of the present proceedings is concerned. In that complaint the District Magistrate alleged that the respondent had disobeyed the order passed under s. 144 by forming himself along with 2,000 other persons into an unlawful assembly between the hours of 3 and 5 p.m. on April 25, 1960 by shouting slogans and pelting stones at police officers and this was stated to be oil the road in front of the Police Wireless station. This complaint by the District Magistrate was registered and taken cognizance of by the Magistrate. The respondent pleaded in his defence that he was not present at the scene of the occurrence at all and that he had been falsely implicated by the police. The Magistrate rejected the defence and accepting the prosecution case that the respondent was present as the head of the mob on that occasion convicted him of the offence charged and sentenced him by his order dated July 8, 1960 to rigorous imprisonment for six months. Ten days thereafter on July 18, 1960 the charge sheet in the present case was filed."
5. During the pendency of the prosecution from which the present appeal arises the respondent appealed to the learned Sessions judge against his conviction by the Magistrate on the charge under s. 188, Indian Penal Code. The learned Sessions Judge allowed the appeal holding that the prosecution had not established that the respondent was present at the place and at the time where the occurrence took place at which he was said by the Rakesh Kumar vs Yashwanti Crl.no.80/12 page 9 of15 prosecution to have been present or that he disobeyed the order under s. 144, Criminal Procedure Code. In the course of his judgment delivered on July 30, 1960 the learned Sessions Judge observed after referring to the delay in the filing of the complaint after the occurrence:
"This delay: in the filing of the complaint and in the naming of the appellant.................. throws considerable doubt on the presence of the appellant among the agitators on 254
60............... if the P. Ws. did not know the appellant from before no reliance can be placed on their identification of the appellant during the trial because that identification was not tested in a test identification parade. This also confirms my suspicion that the appellant might not have been present in the incident of 254
60......... The important position which the appellant had in organising the agitation in my opinion, afforded sufficient motive for the P.Ws. to come to a conclusion that the appellant might have been present in the agitation. But that erroneous impression on conclusion would not prove the presence of the appellant among the agitators on 25460......... For reasons given above the appeal is allowed and the conviction and sentence of the appellant under s. 188 I.P.C. are set aside and he is acquitted."
6. This acquittal was confirmed by the Judicial Commissioner on April 29, 1961. Meanwhile, to proceed with the narrative of the proceedings which has given rise to the present appeal, the learned Magistrate committed the respondent and 5 others to take their trial before the Sessions Judge, Manipur on a charge in respect of the offences we have set out earlier. Before the learned Sessions Judge an objection was raised on behalf of the respondent that the trial was barred by s. 403, Criminal Procedure Code by reason of the acquittal of the accused under s. 188, Indian Penal Code on July 30, 1960. The learned Sessions Judge, however, held, that the terms of the section were not satisfied, in that the ingredients of the two offences with which the accused was charged in the two prosecutions were different and rejected that submission. On the evidence adduced before him be found that it had been established Rakesh Kumar vs Yashwanti Crl.no.80/12 page 10 of15 to his satisfaction that the respondent as well as the others were present at the scene of the occurrence and held the accused guilty of the offences under ss. 333, 323 and 440 all read with s. 149, Indian Penal Code and sentenced him to 4 years R.I. All the six accused filed appeals against their conviction and sentences before the Judicial Commissioner, Manipur and the learned Judicial Commissioner after making some variations in the sentences as regards certain of the accused directed the acquittal of the respondent on the ground that the finding of fact recorded by the learned Sessions Judge in his trial for the offence under s. 188, Indian Penal Code that he was not present at the scene of the occurrence on April 25, 1960 between the hours of 3 and 5 p.m. was final and conclusive and binding upon the prosecution and that no evidence could be led to establish a contrary state of affairs in the present proceedings. In so holding the learned the Judicial Commissioner followed the decision of this Court in Pritam Singh v. State of Punjab(1) and certain other decisions and held that the principle of res judicata applicable to criminal proceedings was not confined to cases falling within the bar of s. 403, Criminal Procedure Code but was of wider application. It is the correctness of this view of the law that calls for consideration in this appeal.
The Apex Court held that rule of issueestoppel was fully applicable.
7. Revision petition fails due to following reasons:
I. Though the respondent had got registered FIR against petitioner and his family members u/s 494 and other section of IPC in PS Kharkhoda and though the chargesheet was also filed in that section including others but ordersheet dated 21102009 passed by the Rakesh Kumar vs Yashwanti Crl.no.80/12 page 11 of15 Judicial Magistrate, Ist Class, trying the case arising from dowry FIR clearly shows that the petitioner was discharged u/s 494 IPC. As per explanation to Section 300 Cr. PC, the discharge of the accused is not an acquittal for the purpose of that section. So provisions of section 300 are not applicable to the present case.
II. Counsel for petitioner argued that the respondent had led evidence u/s 494 IPC and the trial Court has given observation that there was no documentary or cogent evidence regarding the averments that the accused Rakesh had remarried with some Poonam and one son had born from that wedlock. Counsel further submitted that respondent had preferred an appeal in Sessions Court, Sonepat against that judgement and the appellant court dismissed the appeal observing that the complainant had merely alleged in her complaint that on 25062005 her husband Rakesh and Poonam had stayed with them while they were going to Manali on vacation ... however, again there is no evidence on record, where documentary or otherwise regarding the allegations that accused Rakesh had married with said Poonam during the subsistence of his marriage with the Rakesh Kumar vs Yashwanti Crl.no.80/12 page 12 of15 complainant. Arguments of the counsel for respondent is that the observation of the trial Court and appellant court is merely passing reference and it was not required for the decision of the case. Arguments of the counsel for petitioner is that issue of second marriage of the petitioner with Poonam was necessary to be decided to decide the charge u/s 498 A as that allegation could have caused cruelty to the respondent. III. As per section 498 A IPC, there are two types of cruelties. The first type is mentioned in section 498A(a) and second type has been mentioned in section 498A (b). In the case arising from FIR No.215 dt. 08112005 u/s 498 A IPC etc. PS. Kharkhoda, the charge against petitioner and coaccused was as under: "That during the year 1995 to 2005, you Rakesh Kumar s/o Attar Singh being husband, Smt. Savitri Devi w/o Attar Singh being motherinlaw, Anita w/o Karan Singh being sisterinlaw of complainant, subjected to her cruelty by coercing her to meet your unlawful demand of more dowry i.e Motorcycle, colour T.V and Rs.50,000/ in cash and thereby you committed an offence punishable u/s 498A of IPC and within my Rakesh Kumar vs Yashwanti Crl.no.80/12 page 13 of15 cognizance".
IV. The charge itself shows that it was for causing cruelty in connection with dowry which is covered u/s 498A (b) IPC. For deciding that charge, the Magistrate was concerned only if any cruelty was caused to respondent in connection with dowry. At that time he was not dealing with the cruelty as defined in 498A(a) IPC. If the Magistrate was of the opinion that cruelty as defined in 498A (a) had already been committed upon the respondent, the Magistrate should have framed charge under that section also after evidence being led by the respondent but the charge was never altered during trial. So it is held that observations of the Magistrate and appellant Court were not necessary for deciding the charge u/s 498 A based upon cruelty caused for more dowry.
8. In both cited cases, the main issue (from which issue estoppal arises), was decided after framing the charge. It means that first the charge in the form of main issue and was formed in the first litigation thereafter the evidence was led and after conclusion of evidence from both sides, the court had decided that Rakesh Kumar vs Yashwanti Crl.no.80/12 page 14 of15 main issue in favour of a particular party for which that particular party was again prosecuted for which the Hon'ble Supreme Court forbade the trial Court from prosecuting that party. Such are not the facts of the case in hand because the main issue i.e. charge was never framed against the petitioner in the case arising from FIR No.215.
9. In view of above discussion, the revision petition is dismissed. Trial Court record be sent back with the copy of this order. Revision file be consigned to recordroom. Announced in the Open Court On the 17th day of December, 2014 (UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi Rakesh Kumar vs Yashwanti Crl.no.80/12 page 15 of15