Madhya Pradesh High Court
Santosh vs The State Of Madhya Pradesh on 11 December, 2018
1
IN THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.48066/2018
(Santosh and ors. Vs. State of M.P.)
Jabalpur, dated-11.12.2018
Shri Narendra Nikhare, counsel for the petitioners.
Shri R.S. Shukla, panel lawyer for the respondent/State.
Heard.
This M.Cr.C. has been instituted on an application under Section 482 of the Cr.P.C. filed on behalf of accused persons/ petitioners Santosh, Omkar, Purushottam and Manish. It is directed against the order dated 13.11.2018 passed by the Court of ACJM, Begamganj, District-Raisen in R.T.No.75/2004.
The facts giving rise to this M.Cr.C. may be summarized as hereunder. Petitioners Santosh, Omkar, Purushottam and Manish were tired by the Court of JMFC, Begamganj, Disctrict-Raisen under Sections 294, 323, 452, 506 read with section 34 and 325 of the IPC in criminal case no.75/2004. By judgment dated 14.07.2011, learned JMFC held in paragraph no.20 that the charge under Section 452 of the IPC is not proved against the accused persons/ petitioners. Consequently, in paragraph no.21, they were acquitted of the charge under Section 452 of the IPC but accused person/ petitioner no.1 Santosh was convicted under Sections 325, 294 and 506 (Part-II) of the IPC and remaining accused persons were convicted under Sections 323, 294 and 506 (Part-II) of the IPC.
Accused persons challenged the aforesaid judgment in criminal appeal no.96/2011 before the Learned Second Additional Sessions Judge, Begamganj, District-Raisen. Thereafter, learned Second Additional Sessions Judge by judgment dated 14.03.2018 in paragraph no.12, set the judgment dated 14.07.2011 aside and remitted the case back to the trial Court with a direction to call the witness, who had conducted X-ray examination upon the victim Digitally signed by S HUSHMAT HUSSAIN Date: 11/12/2018 17:29:40 2 IN THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.48066/2018 (Santosh and ors. Vs. State of M.P.) Ajay Kumar Jain, record his statements and pass the judgment in accordance with law, afresh.
After the case was remitted back to the trial Court, learned ACJM, Begamganj, District-Raisen passed the impugned order dated 13.11.2018, whereby it was held that taking Section 325 and Section 452 cumulatively into account, offence under Section 459 of the IPC would be constituted; as such, cognizance of the offence punishable under Section 459 of the IPC was taken against accused persons/ petitioners and they were directed to show-cause as to why they be not taken into custody for the offence punishable under Section 459 of the IPC.
The aforesaid order dated 13.11.2018 is subject matter of challenge in this petition under Section 482 of the Cr.P.C.
Learned counsel for the petitioners submits that the petitioners had been acquitted of the offence punishable under Section 452 of the IPC vide judgment dated 14.07.2011 passed by the learned JMFC, Begamganj, District- Raisen. No appeal against the aforesaid acquittal was filed; as such, this acquittal has become final. In these circumstances, cognizance of the offence under Section 459 of the IPC cannot be taken now by the trial Court. He further submits that limited direction that was made by the Appellate Court by judgment dated 14.03.2018 was to the effect that the trial Court shall record the statement of Medical Witness, who had conducted the X-ray examination upon the victim Ajay Kumar Jain and would pass the judgment, afresh. The trial Court has traveled beyond aforesaid limited direction; therefore, it has been prayed that the order dated 13.11.2018 be set-aside.
Learned panel lawyer for the respondent State on the other hand has supported the impugned order.
Digitally signed by S HUSHMAT HUSSAIN Date: 11/12/2018 17:29:40 3IN THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.48066/2018 (Santosh and ors. Vs. State of M.P.) A perusal of the judgments dated 14.07.2011 and 14.03.2018 reveal that the petitioners had indeed been acquitted of the charge under Section 452 of the IPC and aforesaid judgment has become final. The case was remitted back to the trial Court with a limited direction to examine the Medical witness as aforesaid and pass the judgment afresh. Thus, the trial Court has traversed beyond the direction made by the Appellate Court. In this view of the matter, the impugned order dated 13.11.2018 is not sustainable in the eyes of law and if allowed to continue, would result in abuse of process of the Court.
Consequently, the impugned order dated 13.11.2018 is set- aside and the petition under Section 482 of the Cr.P.C. filed by the petitioners is allowed.
The trial Court is directed to act in accordance with the direction dated 14.03.2018 passed by the learned Second Additional Sessions Judge, Begamganj, District-Raisen in Criminal Appeal No.96/2011.
(C.V. Sirpurkar) Judge Sh Digitally signed by S HUSHMAT HUSSAIN Date: 11/12/2018 17:29:40