Chattisgarh High Court
Anil Maurya (Petitioner In Person) vs State Of Chhattisgarh on 21 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 30.9.2022
Order Delivered on 21.10.2022
Cr.M.P. No. 363 of 2021
Anil Maurya, S/o Firturam Maurya, presently aged about 50
years, R/o Kapil Nagar, P.S. Sarkanda, District Bilaspur
(C.G.) Mo. No. 9827972971
---- Petitioner
Versus
1. State of Chhattisgarh, Through: the District Magistrate,
Through: the Police Station Chakarbhatha, District Bilaspur
(C.G.)
2. Uttam Pandey, S/o Bhagwat Prasad Pandey, aged about
65 years, R/o Behind Sai Mandir, Shiv Vihar, Tifra, Bilaspur,
Tahsil and District Bilaspur (C.G.)
---- Respondents
For Petitioner : Mr. S.K. Kushwaha, Adv. appears on behalf of Mr. Anil Mourya, appearing in person For Respondent No. 1 : Ms. Madhunisha Singh, Dy. Adv. General For Respondent No. 2 : Mr. Uttam Pandey, appearing in person Cr.M.P. No. 364 of 2021 Rajnish Singh Baghel, S/o Shri Samarjit Singh (in the order impugned name is mentioned as Rajnish Singh, S/o Samarjit Sigh, presently aged about 43 years, R/o Plot No. 22, Shanti Nagar, Police Station - Civil Lines, District Bilaspur (C.G.) Mob. No. 9424296550
---- Petitioner 2 Versus
1. State of Chhattisgarh, Through: the District Magistrate, Through: the Police Station Chakarbhatha, District Bilaspur (C.G.)
2. Uttam Pandey, S/o Bhagwat Prasad Pandey, aged about 65 years, R/o Behind Sai Mandir, Shiv Vihar, Tifra, Bilaspur, Tahsil and District Bilaspur (C.G.)
---- Respondents For Petitioner : Mr. Rajnish Singh Baghel, appearing in person For Respondent No. 1 : Ms. Madhunisha Singh, Dy. Adv. General For Respondent No. 2 : Mr. Uttam Pandey, appearing in person Cr.M.P. No. 366 of 2021 Ramakant Pandey, S/o Gajadhar Prasad Pandey, aged about 48 years (presently), R/o Kapil Nagar, P.S. Sarkanda, District Bilaspur (C.G.) Mob. No. 9806139572
---- Petitioner Versus
1. State of Chhattisgarh, Through: the District Magistrate, Through: the Police Station Chakarbhatha, District Bilaspur (C.G.)
2. Uttam Pandey, S/o Bhagwat Prasad Pandey, aged about 65 years, R/o Behind Sai Mandir, Shiv Vihar, Tifra, Bilaspur, Tahsil and District Bilaspur (C.G.)
---- Respondents For Petitioner : Mr. Ramakant Pandey, appearing in person For Respondent No. 1 : Ms. Madhunisha Singh, Dy. Adv. General For Respondent No. 2 : Mr. Uttam Pandey, appearing in person 3 Hon'ble Shri Justice N.K.Chandravanshi Order [CAV]
1. Since all the three petitions have arisen out of a common order dated 11.02.2021 passed by Second Additional Sessions Judge, Bilaspur in Criminal Revision No. 13/2020 and order dated 17.12.2019 passed by Judicial Magistrate, First Class, Bilha, District Bilaspur (C.G.) in Criminal Case No. 166/2014, therefore, they are being heard analogously and decided by this Common Order.
2. These petitions under Section 482 of the Code of Criminal Procedure, 1973 (for brevity "Cr.P.C.") have been preferred against the order dated 11.02.2021 passed by Second Upper Sessions Judge, Bilaspur in Criminal Revision No. 13/2020, affirming the order dated 17.12.2019 passed by Judicial Magistrate First Class, Bilha in Criminal Case No. 166/2014, whereby, application filed by respondent No. 2/complainant for summoning the Investigating Officer alongwith Rojnamcha-Sanha No. 729, dated 17.09.2012 for getting it exhibited during the course of his examination was allowed.
3. The imperative facts required to be noticed for adjudication of these petitions are as under:
3.1. The petitioners-in-person are facing trial in connection with Criminal case No. 166/14 (State of Chhattisgarh v. Rajnish Singh & others) before the court of Judicial Magistrate First Class, Bilha, 4 District Bilaspur, which is pending at the stage of evidence for prosecution. Respondent No. 2 is complainant/victim in the aforesaid criminal case. He filed an application on 14.08.2019 before Judicial Magistrate First Class, Bilha, District Bilaspur for summoning the Investigating Officer alongwith Rojnamcha Sanha of 17.09.2012 of Police Station Chakarbhata. He (respondent No. 2) had filed one other application on the same day, under Section 301 read with Section 302 of the Cr.P.C. for allowing him to represent the prosecution in aforesaid criminal case.
3.2 After considering aforesaid applications, vide order dated 21.8.2019, learned Judicial Magistrate First Class, Bilha dismissed both the applications, holding therein that it is not permissible under the law. Criminal Revision No.175/2019 preferred against that order was party allowed by Learned Additional Sessions Judge, Bilaspur, by which, the respondent No. 2/complainant was permitted to assist Additional Public Prosecutor during course of trial and he was also permitted for filing written arguments after closing of evidence, but declined to allow prayer to summon Investigating Officer along with Rojnamcha Sanha of the date of incident for getting it exhibited during course of his examination.
3.3. Being aggrieved & dissatisfied with the aforesaid order, respondent No. 2/complainant preferred Cr.M.P. No. 2409 of 2019 (Uttam Pandey v. State of Chhattisgarh & others) before this Court, 5 wherein following prayer was made by him, which reads thus:-
"P R A Y E R It is, therefore, prayed that this Hon'ble Court may kindly be pleased to quash the impugned orders (annexure P/1 & P/2), be pleased to allow the petitioner to prosecute Criminal Case No. 166/2014 pending in the Court of J.M.F.C. Bilha and further be pleased to direct the learned Trial Court to call the Investigating Officer of the case with Rojnamcha-sanha No. 729 dated 17.09.2012 for the purpose of adducing evidence, in the interest of justice."
3.4 Vide order dated 11.11.2019, aforesaid petition filed by respondent No. 2/complainant herein was finally disposed of at motion stage itself. Operative part of the order is extracted below :-
"11.11.2019
1. Learned counsel for the petitioner/complainant would submit that he has filed the copy of Rojnamcha- Sanha before the trial Magistrate, but it has yet not been exhibited without the original.
2. Be that as it may, the petitioner is at liberty to file application for filing the Rojnamcha-Sanha before the trial Court and that application will be considered by the trial Court, in accordance with law.
3. With the aforesaid observations, the petition finally stands disposed off."
3.5 After passing of the aforesaid order dated 11.11.2019 passed by this Court, respondent No. 2 / complainant filed an application 6 dated 14.11.2019 praying therein to summon the Investigating Officer with Rojnamcha Sanha No. 729, dated 17.09.2012 of Police Station, Chakarbhatha for getting it exhibited during course of his examination, photo-copy of the said Rojnamcha Sanha was also filed alongwith the said application, which he has obtained through RTI. Pursuant to the liberty granted to respondent No. 2/complainant by this Court vide order dated 11.11.2019, Judicial Magistrate First Class, Bilha, Bilaspur vide order dated 17.12.2019 allowed an application filed by respondent No.2/complainant and Criminal Revision No. 13/2020 filed against that order preferred by the petitioners-in-person was rejected by learned Second Upper Sessions Judge, Bilaspur vide order dated 11.02.2021. Against which, instant petition under Section 482 of the Cr.P.C. has been preferred questioning the same.
4. The petitioners appearing in person would submit that earlier application filed by respondent No. 2 on 14.8.2019 for appearance of Investigating Officer before the trial Court along with Rojnamcha Sanha was rejected by Judicial Magistrate First Class, Bilha vide order dated 21.8.2019, which was duly affirmed by the revisional Court vide order dated 23.10.2019. Thereafter, respondent No.2/complainant preferred Cr.M.P. No. 2409/2019 before this Court wherein by order dated 11.11.2019, this petition was disposed of finally at motion stage without noticing petitioners -in- person herein by this Court granting liberty in favour of respondent No. 2 [petitioner in that petition] to file application for filing 7 Rojnamcha Sanha before the trial Court and the trial Court was directed to consider the said application in accordance with law. It is further submitted by petitioners in person that during the course of hearing of that petition, counsel for respondent No.2 herein (petitioner in that petition) had made wrong submission that he has filed copy of Rojnamcha Sanha before the trial Magistrate and in pursuance of that submission, aforesaid liberty had been granted to the respondent No. 2 herein (petitioner in that petition), whereas, copy of said Rojnamcha Sanha had not been filed by him before the trial Magistrate. Thus, respondent No. 2 has secured that order by making false submission before this Court. It is next submitted by petitioners appearing in person that vide order dated 11.11.2019 liberty to file application for filing Rojnamcha Sanha before the trial Magistrate had been granted to respondent No. 2/complainant (petitioner in that petition) but under the guise of that order, respondent No. 2 filed an application on 14.11.2019 for directing the Investigating Officer to bring original rojnamcha sanha dated 17.9.2012 for adducing in evidence, whereas, in the order dated 11.11.2019 such liberty was not granted to him by this Court, despite that learned trial Magistrate has not only acted beyond the direction given to it by this Court but both the courts below have reviewed their earlier order, which is not permissible in law, whereas order passed by both the courts below were not set aside by this Court. It is next submitted that concerned Rojnamcha Sanha sought for by respondent No. 2 is not a part of challan, 8 therefore, respondent No. 2/complainant by filing aforesaid application cannot be permitted to usurp the power of prosecution/police for compelling them to produce concerned rojnamcha sanha, that too, after completion of examination/evidence of respondent No. 2/complainant, which amounts to make efforts to fill-up the lacuna brought by petitioners in his (respondent No. 2) evidence, which is also not in accordance with law. The reference was made by petitioners appearing in person in cases of Hari Singh Mann v. Harbhajan Singh Bajwa and others 1, Adalat Prasad v. Rooplal Jindal and others 2, Narayan Prasad v. State of Bihar 3 and Mohammed Zakir v. Shabana and Ors. 4 in support of their submissions.
5. Respondent No. 1/State & respondent No. 2/complainant have filed their return. Respondent No. 2/complainant has also filed written submissions in form of synopsis.
6. Respondent No. 2/complainant appearing in person while referring his return would submit that, he and petitioners are practicing advocates in the High Court of Chhattisgarh, Bilaspur. On 17.9.2012 petitioners assaulted upon him, abusing in filthy language and also threatened to his life. On the same day, he reported the matter at Police Station, Chakarbhatha, but his F.I.R. was not lodged by the Police and only brief facts were reduced 1 AIR 2001 Supreme Court 43 2 2004 AIR SCW 5174 3 AIR 2017 SC (Supp) 252 4 AIR 2018 SC (Supp) 2483 9 in writing in rojnamcha sancha No. 729. He made complaint on 20.9.2012 to the Superintendent of Police, thereafter, in consequence of the direction, police station Chakarbhatha registered offence under crime No. 250/2012 under Sections 294, 506, 323/34 of the IPC against petitioners on 12.10.2012. It is further submitted that without recording the fresh statement in connection with FIR, the complaint / report made to Superintendent of Police, Bilaspur was converted into FIR, which was not containing all the facts of the incident.
6.1 It is further submitted by respondent No. 2/complainant appearing in person that during course of his cross-examination, he has stated that names of accused persons was mentioned in the Rojnamcha Sanha of the date of occurrence reduced in writing by the police, but that rojnamcha sanha was not filed by the police with the charge-sheet , whereas, that rojnamcha sanha ought to have been filed by the police alongwith the charge-sheet, therefore, to bring that rojnamcha sanha on record and for getting it exhibited, he had moved an application, which was earlier rejected but subsequently in view of order dated 11.11.2019 passed by this Court, his subsequent application was allowed by learned Judicial Magistrate First Class, Bilha, Bilaspur vide order dated 17.12.2019, which was duly upheld by the Revisional Court vide order dated 11.02.2021. It is next submitted that earlier order and subsequent order are only interlocutory orders, which are neither judgment nor final order and those orders also have not touched any of the 10 important rights of the petitioners, therefore, impugned order passed by learned both the courts below cannot be considered as review of their earlier orders.
6.2 It is next submitted by respondent No. 2 appearing in person that he did not make any wrong submissions before this Court on 11.11.2019 about filing of copy of rojnamcha sanha before the trial Court, because granting liberty by this Court to him to file application for filing rojnamcha sanha before the trial Court itself speak that such submission was not made and, therefore, aforesaid liberty was granted to him by this Court. Respondent No. 2 appearing in person while referring the judgments delivered by the Supreme Court in the matter of Anant Prakash Sinha alias Anant Sinha v. State of Haryana and another 5, Sheila Sebastian v. R. Jawaharaj and another 6, Munshi Prasad and others v. State of Bihar 7, & Rekha Murarka v. State of West Bengal and another 8 would further submit that he himself is victim in the aforesaid criminal case and his complaint was reduced in Rojnamcha Sanha dated 17.9.2012 of Police Station, Chakarbhatha, which was not filed by the police along with the charge-sheet, despite being the same was important piece of evidence. It is further submitted that in afore-cited cases, Hon'ble Supeme Court has held that if there is any lacuna left by police / prosecution, then bringing notice by victim/his counsel assisting to 5 (2016) 6 SCC 105 6 (2018) 7 SCC 581 7 (2002) 1 SCC 351 8 (2020) 2 SCC 474 11 the prosecution may be permitted to bring that fault/defect in the notice of the Court, which could also be done by the Court, and such right of victim/his counsel assisting to the prosecution has been recognized by Hon'ble Supreme Court in the aforesaid decisions. It is further submitted that since, vide order dated 11.11.2019, liberty was granted in his favour to file application for filing rojnamcha Sanha before the trial Court and the trial Court was also directed to consider the said application in accordance with law and after considering the application filed by him, the same was allowed by learned courts below under the strength of order dated 11.11.2019 passed by this Court, therefore, neither impugned orders are review of earlier order nor suffers any illegality or perversity, warranting interference by this Court in the instant petitions, hence, the petitions filed by the petitioners-in- person are liable to be dismissed.
7. Learned counsel for the State while referring the return filed by it would submit that order passed by the courts below are well reasoned order based on proper findings and reasoning mentioned therein and there is no illegality or infirmity in the same, therefore, instant petitions are liable to be dismissed.
8. Heard learned counsel for the parties and perused the material available / brought on record including impugned orders with utmost circumspection.
9. The main issue in this case is an application dated 12 14.11.2019, which was subsequent application, filed by respondent No. 2/complainant praying therein to summon Investigation Officer along with Rojnamcha Sanha No. 729, dated 17.9.2012 of Police Station Chakarbhata for getting it exhibited during course of his examination. Earlier such application was dismissed by learned Judicial Magistrate First Class, Bilha, District Bilaspur vide order dated 21.8.2019 holding therein that respondent No. 2/complainant is not a competent person for making such prayer, though if prosecution files such application, then it could be considered. Criminal revision preferred against that order was also dismissed by affirming the order of trial Magistrate.
10. It is stated by respondent No. 2/complainant appearing in person that pursuant to his complaint, FIR was not lodged on 17.09.2012 at Police Station Chakarbhatha but on that day his complaint was reduced in writing in Rojnamcha Sanha No. 729 and his FIR was lodged on 12.10.2012 only after making complaint by him to the Superintendent of Police, Bilaspur on 20.9.2012. Thus, that Rojnamcha Sanha is the first documentary evidence in respect of Criminal Case No. 166/2014 pending against petitioners and, therefore, that Rojnamcha sanha is very much important piece of evidence for that case.
11. It is pertinent to mention here that Section 91 of the Cr.P.C. empowers the Court to summon to produce documents or other thing, which are necessary or desirable for the purpose of enquiry, 13 trial or other proceedings under the Cr.P.C. before such Court, which are considered to be decided for just decision of the case. Hence, considering the aforesaid provisions of law, learned courts below have not committed any error to allow an application filed by respondent No. 2/complainant for calling such first documentary evidence i.e. rojnamcha sanha in respect of aforesaid criminal case, rather this was the duty of the Investigating Officer to file that Rojnamcha Sanha alongwith the charge-sheet.
12. In case of Sheila Sebastian (supra), their Lordships of the Supreme Court has held in paragraph 29 as under :-
"29. ....................... It is the duty of the Investigating Officer, prosecution as well as the courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice.
13. In case of Rekha Murarka (supra), Hon'ble Supreme Court has observed that victim/his counsel may draw attention of the Court in respect of some mistake or lacuna left by Public Prosecutor, so that, no inconsistency be left for just decision in the case and held in paragraphs 11.3 & 11.5 as under :-
"11.3 ........ A victim-centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim's counsel can make up for any oversights or deficiencies in the 14 prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim's counsel while assisting the prosecution.................
11.5 However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim's counsel, the victim's counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim's counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872."
14. In the instant case, respondent No. 2/complainant, who is practicing Advocate, himself is victim in Criminal Case No. 166/2014 pending before the Judicial Magistrate First Class, Bilha and since the concerned Rojnamcha Sanha dated 17.9.2012 has not been filed alongwith the charge-sheet, therefore, considering the importance of that document, he had moved an application for bringing it on record and got exhibited also, hence, in view of the 15 provisions contained in Section 91 of the Cr.P.C., the application ought to had been allowed but that was rejected earlier only on the technical ground stating that he is not a competent person for making such prayer, and if prosecution would file such application, then it can be considered, which was not in accordance with law. But subsequently, that prayer made by respondent No. 2/complainant was allowed by the trial Cout vide order dated 17.12.2019 and upheld by Revisional Court vide impunged order 11.02.2021. Since, respondent No. 2 is victim/complainant himself, therefore, looking to the observations made by Hon'ble Supreme Court in the afore-cited cases and provisions contained in Section 91 of the Cr.P.C., it cannot be said that only by filing aforesaid application, respondent No. 2/complainant has usurped the power of prosecution by compelling the police to produce Rojnamcha- Sanha and the submissions made by petitioners appearing in person in this regard is not found to be correct. Likewise, since examination of Investigating Officer has not been conducted yet, as stated by respondent No. 2 in his submission, therefore, objection raised by petitioners with regard to delay in filing such application is also not sustainable.
15. Main contention of the petitioners appearing -in-person in these cases are that since vide earlier order same application was rejected by both the courts below and later on the same application was allowed, therefore, allowing subsequent application for the same relief is amount to review of earlier orders passed by both the 16 courts below, which is not permissible in law. It has further been contended that vide order dated 11.11.2019 passed by this Court, earlier order passed by both the courts below were not set aside and liberty was granted to respondent No. 2/complainant (petitioner in that petition) only to file application for filing the Rojnamcha Sanha before the trial Court, that too, without entering into the merits of the case, except that no other liberty was granted in his favour. Thus, learned both the Courts below have committed illegality in exceeding the liberty granted by this Court by allowing the aforesaid application filed by respondent No. 2/complainant, which amounts to review of earlier order passed by both the courts below.
16. This Court is not impressed from the submissions made by petitioners appearing - in - person because in this regard prayer made by respondent No. 2/complainant in the earlier Cr.M.P. No. 2409 of 2019 filed by him, are required to be looked into, which has been noted in preceding paragraph No. 3.3 of this order.
17. Prayer made by respondent No. 2/complainant in that Cr.M.P. No. 2409/2019 clearly shows that relief was sought for by him, to direct the learned trial Court to call Investigating Officer of the case along with Rojnamcha Sanha No. 729, dated 17.9.2012 to bring the original for adducing in evidence. On perusal of the petition i.e. Cr.M.P. No. 2409 of 2019 (Annexure R-2/1), it appears that respondent No. 2/complainant has filed copy of that Rojnamcha 17 Sanha alongwith aforesaid petition. Vide order dated 11.11.2019 while granting liberty to the petitioner (respondent No. 2 herein) to file application for filing Rojnamcha Sanha before the trial Court, itself shows that concerned Rojnamcha Sanha had not been filed before the trial Court, therefore, such liberty was granted to him and trial Court was directed to consider the said application in accordance with law and with these observations, petition was disposed of finally. If respondent No. 2/complainant would not have been permitted for making prayer to call the Investigating Officer alongwith concerned Rojnamcha Sanha, then granting him liberty to file application for filing Rojnamcha Sanha before the trial Court would have become worthless.
18. It is also pertinent to mention here that granting aforesaid liberty in favour of respondent No. 2/complainant in that petition also implied to permit him to make further prayer in respect of aforesaid Rojnamcha Sanha and, therefore, order to set aside the order dated 21.8.2019 and 23.10.2019, passed by Judicial Magistrate First Class, Bilha and Upper Sessions Judge, Bilaspur, respectively was implied in order dated 11.11.2019 and under the strength of that order passed by this Court, learned Judicial Magistrate First Class, Bilha has considered and allowed the application, which has duly been upheld by the Revisional Court, therefore, it cannot be said that while passing the impugned orders, both the courts below have reviewed their earlier order. 18
19. In the case of Hari Singh Mann v. Harbhajan Singh Bajwa and others (supra), earlier, High Court has disposed of the petition directing the SSP, to look into the allegations of the petitioner and if he comes to the conclusion that some cognizable offence has been committed by respondents 7 or 8 or anybody else, he shall order for the registration of the case. If the allegations of the petitioner are found to be false, the petitioner shall be prosecuted u/s 182 IPC. Later on, that order passed by the High Court was recalled in subsequent petition filed by the same petitioner. In that view of the matter when subsequent order was challenged before Hon'ble Apex Court, then it was observed by the Hon'ble Apex Court that "There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code."
20. In the case of Adalat Prasad (supra), vide subsequent order Magistrate has recalled his earlier order of registration of complaint case wherein Hon'ble Supreme Court has held that the Code of Criminal Procedure does not contemplate the review of order passed earlier by the Magistrate, but in the instant case subsequent order has been passed by the Magistrate in view of the liberty granted by this Court to respondent No. 2/complainant and the direction given by this Court to learned trial Court to consider the application filed by respondent No. 2/complainant (petitioner in 19 Cr.M.P. No. 2409/2019) in accordance with law. Therefore, facts of the aforesaid case law and other case law cited by the petitioners appearing in person are not similar to the facts of the instant case. Hence, they do not get any support from afore-cited case laws in the instant case.
21. It is also pertinent to mention here that considering the liberty granted by this Court in paragraph 2 of the order dated 11.11.2019 and the pleadings made by respondent No. 2/complainant in Cr.M.P No. 2409/2019, this Court is not concurred with the submissions made by petitioners appearing in person that pursuant to the wrong submissions made by respondent No. 2/complainant in that petition, aforesaid liberty was granted to him.
22. As a fallout and consequence of the aforesaid discussion, all the petitions filed under Section 482 of the Cr.P.C., being devoid of substance, are liable to be and are hereby dismissed. No order as to costs.
Sd/-
(N.K. Chandravanshi) Judge D/-
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