Allahabad High Court
Baccha Lal @ Vijay Singh vs State Of U.P. And Another on 4 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 69 Case :- CRIMINAL APPEAL No. - 6502 of 2018 Appellant :- Baccha Lal @ Vijay Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Dharmendra Singh,Tiwari Abhishek Rajesh Counsel for Respondent :- G.A. Hon'ble Rajeev Misra,J.
1. This Criminal Appeal under Section 14-A(1) of the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 2015 has been preferred against judgement and order dated 19.09.2018 passed by IInd Additional District and Sessions Judge/ Special Judge, SC/ST Act, Kaushambi in Sessions Trial No.192 of 2014 (State Vs. Sunil Kumar and another) under Sections 304, 308, 323, 504 I.P.C. and Sections 3 (2) (V) SC/ST Act, Police Station-Kokhraj, District-Kaushambi.
2. By means of the aforesaid impugned order dated 19.09.2018, court below has allowed the application dated 02.03.2017 (Paper No. 17 Kha) filed by first informant/opposite party-2 under Section 319 Cr.P.C. and simultaneously summoned the appellant to face trial in aforementioned sessions trial.
3. I have heard Mr. Tiwari Abhishek Rajesh, the learned counsel for appellant and the learned A.G.A. for State. In spite of service of notice upon opposite party-2 as is explicit from the office report dated 20.12.2018, no one has put in appearance on behalf of opposite party-2 to oppose the present appeal.
4. Instant appeal came up for admission on 13.11.2018 and this Court passed the following order:-
" Heard learned counsel for the appellant and the perused the record.
Admit.
Summon the certified copy of lower court record.
Learned A.G.A. has accepted notice on behalf of opposite party no.1.
Issue notice to the opposite party no.2 by Fax through the Chief Judicial Magistrate concerned.
Learned A.G.A. is also hereby directed to ensure the service upon opposite party no.2 and to file complete report.
List on 20.12.2018. "
5. Pursuant to above order dated 13.11.2018, the certified copy of lower court record has been received.
6. Record shows that in respect of an incident, which is alleged to have occurred on 18.03.2014, a prompt F.I.R. dated 18.03.2014 was lodged by first informant/opposite party-2 Himmatlal, which was registered as Case Crime No. 118 of 2014 under Sections 308, 323, 504 I.P.C. and Sections 3 (1) (X) SC/ST Act, Police Station-Kokhraj, District-Kaushambi.
7. In the aforesaid F.I.R., three persons namely Raj Lal, Baccha Lal (Appellant herein) and Sunil have been nominated as named accused.
8. In brief, the prosecution story as unfoled in the F.I.R. is to the effect that Sunil Kumar son of first informant/opposite party-2 Himmatlal, aged about 6 years was playing with the son of Mahesh Kumar Vishwakarma. Subsequently, they had a scuffle. At this juncture, Rajlal, Bacchalal and Sunil came on the spot. They thereafter used abusive language with caste denoting words. First informant/opposite party-2 objected to their aforesaid conduct. On this, aforesaid persons are alleged to have assaulted the first informant with Lathi, Danda and also used their fist and legs, on account of which, first informant sustained injuries on his head and body. Father of first informant, namely, Natthu Saroj also sustained injuries.
9. After aforesaid F.I.R. was registered, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C.. The injured were referred for medical examination. As per the Medico Legal Report of injured Natthu Saroj, he sustained following injureis:
(1) Incised wound present over left side of head 4.5 x 1.5 cm. in size, bone deep.
(2) Incised wound of 2.5 x 0.5 cm. in size present left to med of scalp.
10. The injured Bharosia sustained following injuies as per his Medico Legal Report:-
(1) Complain of pain in left shoulder.
(2) Complain of pain in right shoulder.
(3) Complain of pain in wrist left side.
(4) Complain of pain in a wrist right side.
(5) Abrasion 0.5 cm. x 0.5 cm. on right leg, 12 cm. below patella.
(6) Abrasion 0.5 cm. x 0.5 cm. on right leg, 14 cm. below patella.
11. Injured Sunita also sustained injury, which is explicit from her Medico Legal Report as under:
(1) Contusion 13 cm. x 7 cm. on left side of back, 5 cm. from middle at T3-T5 clavicle.
12. Subsequently, the injured Natthu Pasi succumbed to the injuries sustained by him. The post-mortem of the body of deceased Natthu Pasi was conducted on 19.03.2014. In the opinion of Autopsy Surgeon, the cause of death of deceased was due to shock and as a result of head injuries. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
1- Stiched wound (Lt.) side skull 5cm. long 4 stichen 2- Stiched wound (Lt. Side forehead 2cm. 2 stichen.
3- lacerated wound 1 x 1. 00 cm. below Rt. Thumb 4- Abrasion 2 x 1 cm. front of Rt. Knee.
5- Abrasion 5 x 4 cm. frontal Rt. Knee.
6- Fracture of left frontal temporal bone
13. During course of investigation, Investigating Officer examined the following witnesses under Section 161 Cr.P.C.:- Ramdhani Pasi, Himmatlal Pasi (first informant), Smt. Sunita Devi (eye witness), Smt. Bhrosia (eye witness), Indrajeet Yadav, Dinesh Kumar Yadav, Nathan Singh, Subba Pasi, Samanta Devi, Ram Lakhan Dhobi and Hira Lal Kesarwani.
14. On the basis of above and other material collected by Investigating Officer during course of investigation which is substantially adverse to some of the accused, he opined to submit a charge-sheet but only against named accused Sunil Kumar Lodh @ Ashok. He, accordingly, submitted the charge-sheet dated 30.05.2014, whereby named accused Sunil Kumar Lodh @ Ashok was charge-sheeted under Sections 304, 308, 323, 504 I.P.C. and Sections 3 (2) (V) SC/ST Act, whereas named co-accused Bacchalal Yadav was exculpated.
15. Subsequently, named accused Ram Lal Yadav was also charge-sheeted under Sections 304, 308, 323, 504 I.P.C. and Sections 3 (2) (V) SC/ST Act, vide supplementary charge-sheet dated 21.06.2014.
16. After submission of charge-sheet dated 30.05.2014, cognizance was taken upon same, vide Cognizance Taking Order dated 18.06.2014 passed by Additional Chief Judicial Magistrate, Kaushambi. Similarly upon submission of supplementary charge-sheet dated 21.06.2014, cognizance was taken upon same, vide Cognizance Taking Order dated 10.07.2014 passed by Chief Judicial Magistrate, Kaushambi.
17. As offence complained of is exclusively triable by Special Judge, SC/ST Act, the case was committed to the court of Special Judge, SC/ST Act, Kaushambi. Resultantly, Sessions Trial No. 192 of 2014 (State Vs. Sunil Kumar and another) under Sections 304, 308, 323, 504 I.P.C. and Sections 3 (2) (V) SC/ST Act, Police Station-Kokhraj, District-Kaushambi came to be registered in the court of Special Judge, SC/ST Act, Kaushambi.
18. During course of trial, concerned Sessions Judge framed charges against charge-sheeted accused, who pleaded innocence. Resultantly, trial procedure commenced.
19. Prosecution in discharge of its burden to bring home the charges so framed against charge-sheeted accused adduced P.W.-1, Himmatlal (first informant), P.W.-2 Sunita (injured witness) and P.W.-3, Ramdhani (brother of deceased).
20. After the statements-in-chief/examination-in-chief of aforesaid witnesses were recorded, first informant/opposite party-2 filed an application dated 26.10.2016 under Section 319 Cr.P.C. praying therein that since evidence has come against named but not charge-sheeted accused Bacchalal, therefore, he be also summoned to face trial. This application was registered as paper no. 16 kha.
21. However, aforesaid application (paper no. 16 Kha) was got dismissed as not pressed. Accordingly, court below passed the following order dated 14.02.2017:-
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22. Subsequently, first informant/opposite party-2, filed another application dated 02.03.2017 under Section 319 Cr.P.C. on the same ground praying therein that named but not charge-sheeted accused Bacchalal be also summoned to face trial. Same was registered as paper no. 17 Kha.
23. It transpires from the record that no written objection was filed by charge-sheeted accused to the application dated 02.03.2017 (paper No. 17 Kha).
24. Court below examined the application (paper no. 17 Kha) in the light of the oral testimonies of P.W.-1 Himmatlal, P.W.-2 Sunita and P.W.-3 Ramdhani and opined that complicity of appellant is also established in the crime in question. Accordingly, court below by means of order dated 19.09.2018 allowed aforementioned application and simultaneously summoned the appellant for trial in above-mentioned sessions trial.
25. Thus feeling aggrieved by the order dated 19.09.2018 passed by court-below, appellant has now approached this Court by means present appeal under Section 14-A (I) Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act.
26. Learned counsel for appellants contends that order impugned in present appeal is patently illegal and without jurisdiction. It is an undisputed fact that first informant/opposite party-2 filed an application dated 26.10.2016 (paper no. 16 Kha) under Section 319 Cr.P.C. Aforesaid application was got dismissed as not pressed without obtaining the leave of the Court to file fresh. However, irrespective of above, first informant/opposite party-2 filed subsequent application dated 02.03.2017 under Section 319 Cr.P.C. (paper no. 17 kha). It is this application, which has been allowed by court below by means of the impugned order.
27.According to learned counsel for appellant, though no specific bar is contained in the Code i.e. Cr.P.C. regarding filing of second application under Section 319 Cr.P.C. but public policy prohibits the filing of second application.
28. Per contra, the learned A.G.A. has opposed the present appeal. He contends that second application under Section 319 Cr.P.C. filed by first informant/opposite party-2 was maintainable as the first application under Section 319 Cr.P.C. filed by first informant/opposite party-2 was got dismissed as not pressed in view of inherent mistake in the application. Since the first application under Section 319 Cr.P.C. filed by first informant/opposite party-2 was not decided on merits, as such, no legal bar can be attached to the second application under Section 319 Cr.P.C. The issue as to whether complicity of appellant is there or not in the crime in question can be decided appropriately only during the course of trial. Since prima-facie something more than mere complicity of appellant is established in the crime in question, no illegality has been committed by court below in allowing the appeal. As scuh, no indulgence be granted by this Court in favour of appellant.
29. Before proceeding to consider the veracity of the order impugned in present appeal, this Court is to initially required to examine the maintainability of the application dated 02.03.2017 (paper no. 17 Kha) under Section 319 Cr.P.C. filed by first informant/opposite party-2.
30. Since the present appeal arises out of proceedings under Section 319 Cr.P.C., it is, therefore, desirable to reproduce Section 319 Cr.P.C. For ready reference same is extracted herein-under:-
"319. Power to proceed against other persons appearing to be guilty of offence.
(1)Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section(1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
31. From perusal of Section 319 Cr.P.C., it is apparent that there are no riders by way of proviso attached to Section 319 Cr.P.C. Therefore, Court has to examine the maintainability of the subsequent application under Section 319 Cr.P.C. in the light of law laid done by this Court/Apex Court with reference to the Code i.e. Cr.P.C.. Section 319 Cr.P.C.particularly when the first application filed by first informant/opposite party under Section 319 Cr.P.C. was got dismissed by first informant/opposite party-2 as not pressed without obtaining the leave of the court to file fresh.
32. To begin with the Code of Criminal Procedure (hereinafter referred to as the Code) does not contain any provision, which bars the filing of a subsequent application under the Code.
33. Therefore, of necessity the Court has to examine the case in hand in the light of conclusions rendered by Apex Court/ this Court in similar circumstances.
34. In Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and others (1987) 1 SCC 5, it was held by Court in paragraph 8 of the report as follows:
"The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in subrule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII. The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or sub- stantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudi- cation of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court."
35. Aforesaid judgement was re-affirmed by Apex Court in Upadhyay and Company Vs. State of U.P. and others (1999) 1 SCC 81. Paragraph 13 of the judgement is relevant for the controversy in hand. Accordingly same is extracted herein-under:-
" The aforesaid ban for filing a fresh suit is based on public policy. This Court has made the said rule of public policy applicable to jurisdiction under Article 226 of the Constitution (Sarguja Iransport Service vs. State Transport Appellate Tribunal, Gwalior, 1987 1 SCC 5). The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The following observations of E.S. Venkataramiah, J. (as the learned chief Justice then was) are to be quoted here:
"We are of the view that the principle underlying Rule 1 of Order 233 of the code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art.32of the constitution since such withdrawal does not amount to res judicata, the remedy under Art.226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission."
36. Learned A.G.A. has referred to the judgement of Supreme Court in V. Ravi Kumar Vs. State represented by Inspector of Police, District Crime Branch, Salem Tamilnadu and others (2019) 14 SCC 568, wherein the Court has held that second complaint in respect of the same cause of action is maintainable. Observation made in paragraphs 16 to 20 of the report are relevant for the controversy in hand. Accordingly same are reproduced herein below:
"16. There is no provision in the Criminal Procedure Code or any other statute which debars a complainant from making a second complaint on the same allegations, when the first complaint did not lead to conviction, acquittal or discharge. In Shiv Shankar Singh v. State of Bihar and Anr., this Court held:
"18. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit."
17. As held by this Court in Jatinder Singh and Others v. Ranjit Kaur, it is only when a complaint is dismissed on merits after an inquiry, that a second complaint cannot be made on the same facts. Maybe, as contended by the respondents, the first complaint was withdrawn without assigning any reason. However, that in itself is no ground to quash a second complaint. 1 (2012) 1 SCC 130 2 2001 (2) SCC 570
18. In Pramatha Nath Talukdar and Anr. v. Saroj Ranjan Sarkar, this Court dealt with the question whether the second complaint by the respondent should have been entertained when the previous complaint had been withdrawn. The application under Section 482 Cr.P.C. was allowed and the complaint dismissed by the majority Judges observing that an order of dismissal under Section 203Cr.P.C. was no bar to the entertainment of second complaint on the same facts, but it could be entertained only in exceptional circumstances, for example, where the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint or the order passed was manifestly absurd, unjust or foolish or where there were new facts, which could not, with reasonable diligence, have been brought on record in previous proceedings.
19. In Poonam Chand Jain and Anr. v. Fazru, this Court relied upon its earlier decision in Pramatha Nath (supra) and held that an order of dismissal of a complaint was no bar to the entertainment of second complaint on 3 AIR 1962 SC 876 4 (2010) 2 SCC 631 the same facts, but it could be entertained only in exceptional circumstances, such as, where the previous order was passed on incomplete record, or on a misunderstanding of the nature of the complaint or was manifestly absurd, unjust or foolish or where there were new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
20. In Poonam Chand Jain (supra) this Court further held that:-
"...this question again came up for consideration before this Court in Jatinder Singh v. Ranjit Kaur. There also this Court by relying on the principle in Pramatha Nath held that there is no provisions in the Code or in any other statute which debars a complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are "exceptional cirumstances". This Court held in para 12, if the dismissal of the first complainant then there is no bar in filing a second complaint on the same facts. However, if the dismissal of the complaint under Section 203 of the Code was on merit the position will be different."
37. The judgement relied upon by learned A.G.A. is clearly distinguishable. The Court in V. Ravi Kumar (supra) concluded that the second complaint shall be maintainable if the contingencies specified therein are satisfied.
38. In the case in hand, the earlier application filed by first informant/opposite party-2 was got dismissed as not pressed but without liberty to file fresh. Consequently the ratio laid down in Sarguja Transport (Supra) as applied in Upadhyay and Company (Supra) is clearly attracted in the present case.
39. In view of the aforesaid discussion, this Court has no hesitation to conclude that since the first application under Section 319 Cr.P.C. filed by first informant/opposite party-2 was got dismissed as not pressed without liberty to file fresh, the second application under Section 319 Cr.P.C. filed first informant/opposite party-2 was clearly not maintainable
40. As a result present appeal succeeds and is liable to be allowed.
41. It is accordingly allowed.
42. The impugned order dated 19.09.2018 passed by IInd Additional District and Sessions Judge/ Special Judge, SC/ST Act, Kaushambi in Sessions Trial No.192 of 2014 (State Vs. Sunil Kumar and another), under Sections 304, 308, 323, 504 I.P.C. and Sections 3 (2) (V) SC/ST Act, Police Station-Kokhraj, District-Kaushambi is hereby quashed.
43. Cost made easy.
Order Date :- 04.11.2022 YK