Madhya Pradesh High Court
Manish Paliya vs The State Of Madhya Pradesh on 21 January, 2016
MCRC-19943-2014
(MANISH PALIYA Vs THE STATE OF MADHYA PRADESH)
21-01-2016
Shri Parag Chaturvedi, learned counsel for the applicant.
Shri Manoj Kushwaha, learned Panel Lawyer for the
respondent/State.
The petitioner has filed this petition in regard to quashment of the FIR registered vide crime no. 60/2008 against him at Police Station Pipariya for commission of offence punishable under Section 302, 307/34 of the IPC read with Section 25, 27 of Arms Act.
Learned counsel for the applicant has prayed for quashment of the proceedings on the ground that two accused persons have been acquitted from the same offence vide judgment dated 30/09/2011 passed in S.T. No. 146/2008. Hence, the present applicant could not be charged for the same offence. The court passed the following detailed interim order on 20/10/2015 and stayed further proceedings before the trial court:
"Shri P.S. Chaturvedi, learned counsel for the applicant. Shri R.N. Yadav, learned public prosecutor for the respondent/State.
Heard on the admission as well as on I.A. No.24266/2014, an application for stay. Issue notice to the respondent on payment of P.F. within seven days. Notice be made returnable within six weeks. Learned counsel for the applicant has submitted that the application has been prosecuted for commission of offences punishable under Section 302 and 307/34 of I.P.C. r/w Sections 25 and 27 of the Arms Act. It is further submitted by learned counsel for the applicant that their were 3 accused persons, initially against whom the offences were registered. Two accused persons namely Sanjay Paliya and Dinesh Demole, Vide judgment dated 30.9.2011 passed in Sessions Trial No. 146/2008 were acquitted from the charges. It is alleged that the present applicant and Dinesh Demole caught hold the deceased and Sanjay Paliya had fired gun shot which hit on the head of the deceased who was died. Mr. Sanjay also fired at Sudesh Jain and tried to kill them. Both the accused persons have been acquitted from the charges vide judgment. It is further contended that the present applicant has been charged under Section 34 of IPC.
There is no individual act of the present applicant, hence, the applicant cannot be tried for commission of offences punishable under Section 302/34 and 307/34 of I.P.C. In support of his contentions learned counsel relied on the judgment of the Supreme Court in the case of Piara Singh Vs. State of Punjab reported in (1980)2 SCC 401and in the case of Gurdiyal Singh Vs. State of Punjab reported in AIR 1995 SCC 2468.
The allegation as per the FIR against the applicant is that the present applicant and Dimore caught hold the deceased and thereafter Sanjay fired a gun shot which had hit on the head, thereafter, the deceased was taken to the hospital where he was died. The allegation against the present applicant is that he had caught hold the deceased. Two accused persons Dinesh and Sanjay have been acquitted from the offences. They were tried for commission of offences punishable under Section 302/34 and 307/34 of I.P.C. Vide Sessions Trial No. 146/2008 and they have been acquitted vide judgment dated 30.9.2011.
The supplementary charge-sheet has been filed against the present applicant. The supreme Court in the case of Piara Singh (supra) has held that when all the assailants charged for commission of offence punishable under Section 302/34 and accept one, all were acquitted, the other person alone cannot be charged for offences under Section 34 of the IPC, however, he would be liable for his individual act. The same principle has been led down by the Supreme Court in other judgment reported in the case of Gurdial Singh (supra).
The allegation against the present applicant is that he had caught hold the deceased and Mr. Sanjay fired at him who has been acquitted prima facie, there is substance in the arguments of the counsel for the applicant and the applicant cannot be prosecuted for commission of offences punishable under Sections 302/34 and 307/34 of the IPC.
In such circumstances, further proceedings against the present applicant before the trial Court shall remain stayed.
Certified copy as per rules."
The Court relied on the judgments of Supreme Court whereby the Supreme Court has held that person cannot be convicted for the offence punishable under Section 34 of the IPC if other co-accused persons have been acquitted, he would liable to his independent Act.
It is admitted by the counsel that the applicant that the charges have not been framed by the trial court against the applicant. The applicant can very well convince the trial court at the time of framing of charges to the effect that no offence is made out against him. The trial court is at liberty to consider all the evidence and legal position at the time of framing of charges.
With the aforesaid observation, the petition is disposed of. Certified copy as per rules.
(S.K. GANGELE) JUDGE MISHRA