Delhi High Court
Inder Singh Bist vs State on 27 April, 2012
Author: Pratibha Rani
Bench: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RESERVED ON: 17th April, 2012
PRONOUNCED ON: 27th April, 2012
+ CRL.Rev.P. 746/2006
INDER SINGH BIST ..... Appellant
Through Mr. Rakesh Kr. Khanna,
Sr. Advocate with Mr. Fazal
Ahmed, Advocate.
Mr. R.P. Khatana, Advocate
Versus
STATE ..... Respondent
Through Mr. Navin Sharma, APP for the
State.
AND
+ CRL.Rev.P. 545/2006
OM PRAKASH @ O.P. Singh ..... Appellant
Through Mr. R.P. Khatana, Advocate
versus
STATE ..... Respondent
Through Mr. Navin Sharma, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
%
1. The present petitions lay a challenge to the impugned orders passed by the learned Addl. Sessions Judge, Delhi, Crl.Rev.Nos.746/2006 & 545/2006 Page 1 of 22 whereby the petitioners were charged for having committed the offences punishable under Sections 302/307/34 IPC. (Criminal Revision No.746/2006 has been filed by the petitioner Inder Singh Bisht impugning the order dated 12.12.2002 and Criminal Revision No.545/2006 has been filed by petitioner O.P.Chaudhary impugning the order dated 25.02.2005, vide which they were separately charged in Sessions Case No. 12/05)
2. The facts of the case which are common to both the petitions, as set out in the impugned order dated 12.12.2002 are as under:-
"Before the application for discharge of accused is considered, it will be appropriate to set out the case of prosecution against him. Prosecution case is that Om Parkash, who is nephew of accused N.P. Singh, along with another person called Choudhary went to the house of Ram Singh and Manoj Kumar in a jeep; put them in jeep, brought them to their kothi in Vasant Kunj and there these two persons were allegedly tortured, apart from injured Manoj Kumar, Ram Singh, Raju, Pardip, Ganga and Nahar Singh were also brought to the same place of accused persons. Deceased Arjun was also brought there. These persons were allegedly confined in the house of accused Om Parkash Choudhary and given beatings by accused persons. Out of the torture allegedly given to Arjun by accused Om Parkash, N.P. Singh; Om Parkash Choudhary and I.S. Bist, Present accused, he died due to multiple injuries present on his body. Other persons also sustained injuries at the hand of accused persons, therefore, present case under above mentioned Sections was filed against accused persons.Crl.Rev.Nos.746/2006 & 545/2006 Page 2 of 22
Role assigned to accused I.S. Bist is that he along with O.P. Choudhary and others was present in the house and he performed the role of recording the confessional statement of the persons allegedly tortured by accused O.P. Choudhary and others. In the statement of Manoj Kumar, Ram Singh, Pardip and others witnesses, it is mentioned that accused persons O.P. Choudhary and N.P. Singh had brought the abovenamed injured and deceased to the house in question where they were beaten with the help of iron rod and steel pipes. Even the freeze water is alleged to have been poured upon them and thereafter they were beaten up. Accused O.P. Singh, N.P. Singh and O.P. Choudhary @ Omi Choudhary collectively gave beating to Arjun and others to extract confession. Apart from that he was made to inhale the smoke produced by burning chillis. The role assigned to accused I.S. Bist is that accused N.P. Singh gave a pen to I.S. Bist and asked him to record the confession for future use which he wrote on a paper and obtained the signature of the persons allegedly tortured. He also asked the injured persons that he had noted down their names and addresses and if any of the injured persons disclosed anything to that person, he will get their parents kidnapped. These witnesses have also stated that accused persons subjected them to severe beatings as a result of which Arjun died."
3. On behalf of petitioners, it has been submitted that both the co-accused persons namely N.P.Singh and O.P.Chaudhary have been acquitted by the learned Trial Court for the reason that none of the prosecution witnesses to the occurrence as well as the complainant, who is the wife of the injured Ram Singh, supported the case of prosecution resulting in acquittal Crl.Rev.Nos.746/2006 & 545/2006 Page 3 of 22 of the two accused persons facing trial at that time. The evidence to be produced by the prosecution in case these two accused are also made to face trial, would remain the same and ultimately the case will result in acquittal of these petitioners also which will be at the cost of wastage of precious time of the Court. It has been submitted that once the witnesses have been examined by the Court during the trial against co-accused, charge cannot be framed merely on the basis of complaint and statement of witnesses recorded under Section 161 Cr.P.C., but the statements of witnesses made during trial. If the statements made during trial by the prosecution witnesses are considered the case is to ultimately result in acquittal and in these circumstances it is necessary that the order framing charge be quashed. It has also been submitted on behalf of the petitioners that in both the impugned orders, the learned ASJ specifically mentioned that the inherent powers to quash the charge are vested only in High Court and due to this handicap proceedings against the petitioners could not be quashed by the learned ASJ.
4. It has also been submitted on behalf of the petitioners that the manner in which the witnesses have not identified the persons facing trial at that time, the same may happen if these petitioners are also made to face trial, as basically none of the witnesses have named these petitioners during their statements before the Court as offenders and even the role assigned to I.S.Bisht is minimal i.e. allegedly extracting Crl.Rev.Nos.746/2006 & 545/2006 Page 4 of 22 confession at the behest of N.P.Singh, who already stands acquitted. In support of their contention, learned counsel for the petitioners have relied upon the decisions of (i) Urmila Devi vs. State 2006 (91) DRJ 341; (ii) Sunil Kumar vs. State 2000 (1) Crimes 73 (Delhi); (iii) Jaswinder Singh vs. State of Punjab Crl. Misc. No.M-15621/2011 decided on 03.02.2012; (iv) Gurpreet Singh @ Khinder vs. State of Punjab 1995(2) CLR 100 (P & H); (v) Amarjit vs. State 1996 (1) C.C. Cases 465 (Delhi); (vi) Santosh Kumar Maity vs. State of Orissa 2006 (4) Crimes 417 and (vii) Central Bureau of Investigation vs. Akhilesh Singh 2005(1) SCC 478.
5. The judgment of Sunil Kumar (supra) lays down that where the evidence relied against all the accused is inseparable and indivisible and if some of the accused have been acquitted, the remaining accused cannot be treated differently on the basis of the same evidence.
6. The decision of Jasvinder Singh (supra) is also on identical footing i.e. where the evidence against all the accused persons is inseparable and indivisible and if some of the accused persons have been acquitted, the remaining accused persons cannot be treated differently on the basis of same evidence.
7. In Amarjit‟s case (supra), it was held that where the co- accused stand acquitted on the ground that the prosecution witness is not worthy of reliance, then on the same evidence Crl.Rev.Nos.746/2006 & 545/2006 Page 5 of 22 the other accused, who was declared P.O, cannot be permitted to undergo ordeal of a trial.
8. The decision of Santosh Kumar vs. State of Orissa (supra) is on the point that where the principle accused having already faced trial and having been acquitted, continuance of criminal proceedings against co-accused would amount to abuse of process of law.
9. In CBI vs. Akhilesh Singh (supra), it was held that once the main accused, who is alleged to have hatched the conspiracy was discharged and matter had attained finality, no purpose would be served in further proceedings against co-accused.
10. Mr.Navin Sharma, learned APP for the State submitted that at the stage of framing of charge, the Court has to consider the statements of witnesses recorded under section 161 Cr.P.C. and other material collected by the prosecution to prove its case. It has been further submitted that the statements of the witnesses recorded during trial against co- accused can at the most be treated as under Section 299 Cr.P.C. against these two petitioners and the same can be read against them only in the contingency viz. (i) the witness is not available being dead or incapable of giving evidence or (ii) his personal presence cannot be procured without an amount of delay, expense or inconvenience, only then such circumstances should be taken into consideration and the evidence recorded Crl.Rev.Nos.746/2006 & 545/2006 Page 6 of 22 under Section 299 Cr.P.C. may be accepted in evidence to be used against such accused persons.
11. Learned APP for the State further submitted that these two petitioners were absconding during trial and the witnesses have mainly deposed only against the accused persons facing trial at that time. The witnesses had no occasion to identify these petitioners and depose about their role in the alleged occurrence. Hence, acquittal of the co-accused is no bar to the trial of these petitioners who were absconding at that time in view of the fact that the evidence to be produced against them is separable and divisible. In support of his submissions, learned APP has relied upon (i) Urmila Sahu v. State of Orissa 1998 Crl.L.J 1372; (ii) Mohammed Moinuddin vs. The State of Maharashtra 1971 SCC Crl.L.J 617; (iii) Sat Kumar v. State of Haryana AIR 1974 S.C. 294; (iv) Ranbir Yadav v. State of Bihar AIR 1995 S.C 1219; (v) Nirmal Singh v. State of Haryana AIR 2000 S.C 1416 and (vi) Har Prasad v. State of Madhya Pradesh AIR 1971 S.C. 1450.
12. The main thrust of arguments of both the petitioners is on the judgment of this Court in Urmila Devi vs. State (supra). The facts of the said case were that Urmila Devi, mother-in-law; Banarasi Das, father-in-law and Mahesh Kumar, husband were sent to face trial for having committed the offences punishable under Sections 498-A/304B/34 IPC. The three accused were acquitted by the learned ASJ and when the petitioner Urmila Crl.Rev.Nos.746/2006 & 545/2006 Page 7 of 22 Devi joined the proceedings she was charged for having committed the offences punishable under Sections 498- A/304B/34 IPC which order was challenged before this Court on the ground that no useful purpose would be served by subjecting the petitioner to a full-fledged trial.
13. The learned Single Judge considered the facts and circumstances of the case and the conclusion arrived at by the learned ASJ while acquitting the three accused recorded in the order of acquittal dated 24.09.2003, extracted in para-18 of the judgment is as under:-
18. The order of acquittal dated 24.9.2003 passed by the learned Additional Sessions Judge in respect of other accused clearly records that it is doubtful as to whether the deceased (Meenu) was subjected to cruelty or harassment for the sake of dowry by any of the accused persons. The learned Additional Sessions Judge, therefore, concluded that the prosecution has not been able to prove its case against any of the accused persons and that it would not be safe to act upon the testimony of the prosecution witnesses. When such a finding has been recorded in respect of the co-accused and where the evidence against the present petitioner is neither separable nor divisible from that against the co-accused, it would not be in the interest of justice to permit the present petitioner to be subjected to a trial when the end result is more than clear.
Subjecting the present petitioner to trial would be an exercise in futility."
Crl.Rev.Nos.746/2006 & 545/2006 Page 8 of 2214. A bare reading of the above judgment makes it ample clear that it was only in view of the finding that a doubt had been created in the case of prosecution whether the deceased was subjected to cruelty for the sake of dowry by the accused persons that the learned Single Judge came to the conclusion that the allegations against the petitioner Urmila Devi were not inseparable and indivisible resulting in quashing of charge against petitioner Urmila Devi.
15. Sofar as reliance placed by counsel for the petitioners on the aforesaid decisions is concerned, these are of no help to the case of petitioners, as these judgments do not lay down any straitjacket formula that whenever any principal accused or some of the accused are acquitted, co-accused must also be acquitted, as trial against them would amount to abuse of process of law. It is the facts and circumstances of each case that have to be considered by the Court while dealing with the effect of acquittal of the principal accused or some of the other accused at some subsequent stage when the absconding accused persons join the proceedings to face the trial.
16. The apparent conflict in the rulings of Division Bench and Single Bench of the Kerala High Court on the issue led to reference to the Full Bench in the circumstances detailed in para-1 of the report Moosa vs. Sub Inspector of Police 2006 Crl.L.J 1922, as under:-
Crl.Rev.Nos.746/2006 & 545/2006 Page 9 of 22"1. The above Criminal Miscellaneous Cases are filed under Section 432 of the Code of Criminal Procedure seeking to quash the criminal proceedings initiated against the petitioners herein on the ground that the co-accused in the respective cases were acquitted on trial. The case of the petitioners who were absconders were separated and are now proceeded with in their respective cases. The co-accused against whom case was proceeded with earlier were finally acquitted on appreciation of the evidence in each of the cases above. It was contended that as the prosecution failed to prove the guilt of any of them, no useful purpose will be served by conducting trial against them and it will be an abuse of process of the court and to secure the ends of justice further proceedings against the petitioners is to be quashed. In support thereof reliance was placed on the decision of a Division Bench of this Court in Arun Kumar v. State of Kerala Crl.M.C.Nos.1053, 1067 & 1078/2005 came up for consideration before a Learned Judge of this Court who after referring to the decisions in Joy v. State of Kerala 2002(3) KLT 425, Chellappan v. State of Kerala 1992(1) KLT 609, Balakrishna Pillai v. State of Kerala 1971 KLT SN.3, Felix v. State and Ors. 1980 KLT 612 and also Arun Kumar‟s case cited supra, was of the view that there is apparent conflict in the Division Bench and Single Bench rulings of this Court and the matter required to be referred to a Full Bench.
In the reference order, Ramkumar, J expressed his feeling that granting relief to an absconder accused may give a wrong message to a law abiding co-accused who stood trial that it was foolish on his part to attend the process of trial and its result will be that like-minded accused persons also will be tempted to adopt elucive Crl.Rev.Nos.746/2006 & 545/2006 Page 10 of 22 tactics for the eventual report to such short-cut method. Subsequently, Crl.M.C.Nos.3102-3300, 3460 and other connected matters which came up for consideration before a Division Bench of this Court also were referred to the Full Bench."
17. The Full Bench of Kerala High Court after detailing brief history of the legislation behind the incorporation of a provision like Section 482 Cr.P.C., discussed its object and details, and the extent of the powers and circumstances under which it is generally exercised. The Full Bench referred to the various judgments delivered by the Apex Court, Kerala High Court and other High Courts detailed hereunder:-
1. Joy v. State of Kerala 2002 (3) KLT 425
2. Chellappan vs. State of Kerala 1992(1) KLT 609
3. Emperor v. Sukh Dev 1929 Lahore 705
4. State of U.P. (1959 Allahabad 69)
5. Dr.Raghubir Saran v. State of Bihar
6. Madhavarao J. Scindia v. Sambhajirao C. Angre 1988 SCC (Crl.) 234
7. State of Karnataka v. L.Muniswamy
8. Karpoori Tahkur v. Baikunth Nath Dey 1990 SCC (Crl.) 642
9. Chand Dhawan v. Jawahar Lal 1992 SCC (Crl.) 636
10.State of Haryana v. Ch.Bhajan Lal
11.Minakshi Bala v. Sudhir Kumar 1994 SCC (Crl.) 1181
12.State of Bihar v. Rajendra Agrawalla 1996 SCC (Crl.) 628 Crl.Rev.Nos.746/2006 & 545/2006 Page 11 of 22
13.Satish Mehra v. Delhi Administration
14.Pepsi Foods Ltd. v. Special Judicial Magistrate
15.Ashok Chaturvedi v. Shitul H. Chanchani
16.Arun Shankar Shukla v. State of U.P. 1999 SCC (Crl.) 1076
17.Dinesh Dutt Joshi v. State of Rajasthan
18.State of Karnataka v. M.Devendrappa
19.B.S.Joshi v. State of Haryana
20.State of M.R. v. Awadh Kishore Gupta 2004(1) KLT (SC)(SN) 35: (2004) SCC (Crl.) 353
21.State of A.P v. Golconda Linga Swamy 2004 (3) KLT (SC)(SN) 95: 2004 SCC (Crl.) 1805
22.Central Bureau of Investigation v. Akhilesh Singh
23.Subramanium Sethurainan v. State of Maharashtra 2005 SCC (Crl.) 242
24.Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Hague 2005 SCC (Crl.) 283
25.Rupan Deol Bajal v. Kanwar Pal Singh Gill 1995 SCC (Crl.) 1059
26.In Pritam Singh v. The State of Punjab
27.Manipur Administration v. Thokchom Bira Singh (1964) 7 SCR 123
28.Kharkan v. State of U.P. 1965 (1) Crl.L.J. 116
29.State of Andhra Pradesh v. Kokkiliagada Meerayya
30.Gopal Prasad Sinha v. State of Bihar
31.Masud Khan v. State of Uttar Pradesh
32.Amritlal Ratilal Mehra v. State of Gujarat
33.Mcllkenny v. Chief Constable (1980) 2 All ER 227 Crl.Rev.Nos.746/2006 & 545/2006 Page 12 of 22
34.North West Water Ltd. v. Binnie & Partners (1990) 3 All ER 547
35.Banwari Godara v. The State of Rajasthan (Crl.A.141/1960
36.Lalta and Ors. v. The State of U.P. Crl.A.185/1966
37.The Assistant Collector of Customs and Anr. v. LR.Malwani and Anr.
38.Mst. Harkori v. State of Rajasthan AIR 1998 SC 1491
39.Sealfron v. United State (1948) 332 US Rep. 575
40.Ali Hasan v. State 1975 Crl.L.J 345
41.Raja Ram v. State of M.P. 1994 SCC (Crl.) 573
42.Ramaswami Goundan v. Subbaraya Goundan AIR (35) 1948 Madras 388
43.Gangadhar Behera v. State of Orissa 2003 SCC (Crl.) 32
44.Gurcharan Singh v. State of Punjab
45.Bijoy Singh v. State of Bihar 2003 SCC (Crl.) 1093
46.Sucha Singh v. State of Punjab
47.Megh Singh v. State of Punjab 2004 SCC (Crl.)
48.Gorle Section Naidu v. State of A.P. AIR 2004 SC 1169
49.Raju Rai v. State of Bihar 2006 (1) KLT (SC) (SN) 8: 2005(7) Supreme 459
50.Arunkumar v. State of Kerala
18. After considering the above mentioned fifty judgments, the Full Bench of Kerala High Court summarized the legal position as under:-
" 53. In the light of the above discussions, we may summarise the legal position as follows:Crl.Rev.Nos.746/2006 & 545/2006 Page 13 of 22
(i) The inherent powers of the High Court reserved and recognized under Section 482 Cr.P.C. of the Code of Criminal Procedure are sweeping and awesome; but such powers can be invoked only
(a) to give effect to any order passed under the Code of Criminal Procedure or
(b) To prevent abuse of process of any court or (c ) otherwise to secure the ends of justice.
Such powers may have to be exercised in an appropriate case to render justice even beyond the law.
(ii) considering the nature, width and amplitude of the powers, it would be unnecessary, inexpedient and imprudent to prescribe or stipulate any straight jacket formula to identify cases where such powers can or need not be invoked.
(iii) But such powers can be invoked only in exceptional and rare cases and cannot be invoked as a matter of course. Where the Code provides methods and procedures to deal with the given situation, in the absence of exceptional and compelling reasons, invocation of the powers under Section 482 of the Code of Criminal Procedure is not necessary or permissible.
(iv) The fact that an accused can seek discharge/dropping of proceedings/acquittal under the relevant provisions of the Code in the normal course would certainly be a justifiable reason, in the absence of exceptional and compelling reasons, for the High Court not invoking its extraordinary powers under Section 482 Cr.P.C.
(v) In a trial against the co-accused the prosecution is not called upon, nor is it expected to adduce evidence against the absconding co-accused. In such trial the prosecution cannot be held to have the opportunity or obligation to adduce all evidence against the absconding co-accused. The fact that the testimony of a witness was not accepted or acted upon in the trial against the co-accused is no reason to assume that he shall not tender incriminating evidence or that his evidence will not be accepted in such later trial.
Crl.Rev.Nos.746/2006 & 545/2006 Page 14 of 22(vi) On the basis of materials placed before the High Court in proceedings under Section 482 of the Code of Criminal Procedure (which materials can be placed before the court in appropriate proceedings before the subordinate courts) such extraordinary inherent powers under Section 482 of the Code of Criminal Procedure cannot normally be invoked, unless such materials are of an unimpeachable nature which can be translated into legal evidence in the course of trial.
(vii) The judgment of acquittal of a co-accused in a criminal trial is not admissible under Sections 40 to 43 of the Evidence Act to bar the subsequent trial of the absconding co-accused and cannot hence be reckoned as a relevant document while considering the prayer to quash the proceedings under Section 482 Cr.P.C. Such judgments will be admissible only to show as to who were the parties in the earlier proceedings or the factum of acquittal.
(viii) While considering the prayer for invocation of the extraordinary inherent jurisdiction to serve the ends of justice, it is perfectly permissible for the court to consider the bona fides - the cleanliness of the hands of the seeker. If he is a fugitive from justice having absconded or jumped bail without sufficient reason or having waited for manipulation of hostility of witnesses, such improper conduct would certainly be a justifiable reason for the court to refuse to invoke its powers under Section 482 of the Code of Criminal Procedure.
(ix) The fact that the co-accused have secured acquittal in the trial against them in the absence of absconding co-accused cannot by itself be reckoned as a relevant circumstance while considering invocation of the powers under Section 482 of the Code of Criminal Procedure.
(x) A judgment not interparties cannot justify the invocation of the doctrine of issue estoppels under the Indian law at present.
(xi) Conscious of the above general principles, the High Court to consider in each case whether the powers under Section 482 of the Code of Criminal Procedure deserve to be invoked. Judicial wisdom, sagacity, sobriety and circumspection have to be pressed into service to identify that rare and exceptional case Crl.Rev.Nos.746/2006 & 545/2006 Page 15 of 22 where invocation of the extraordinary inherent jurisdiction is warranted to bring about premature termination of proceedings subject of course to the general principles narrated above. "
19. In the case of Rajan Rai vs. State of Bihar (2006) 1 SCC 191, the investigating officer submitted charge sheet against six accused on which basis the trial proceeded but one accused (Rajan Rai) absconded. Consequently, his trial was separated and the trial against five other accused persons proceeded but out of them, one accused died before the commencement of the trial, therefore, trial was held against four accused persons, who were convicted and sentenced by the trial court. The four convicted accused persons filed appeal in the High Court against their conviction, which was allowed by the High Court and all four of them were acquitted. The acquittal judgment attained finality.
20. It may be mentioned that during the pendency of the appeal preferred by the aforesaid four accused, the absconded accused Rajan Rai was apprehended and his trial was held separately, who was ultimately convicted by the trial court. He also preferred an appeal in the High Court but his appeal was taken up after disposal of the first appeal filed by four other accused persons and his Learned Counsel argued that four co- accused persons had already been acquitted, therefore, Appellant Rajan Rai was also entitled to the benefit of that judgment. The Apex Court held that the judgment of acquittal rendered by the High Court in appeal arising out of the earlier Crl.Rev.Nos.746/2006 & 545/2006 Page 16 of 22 sessions trial was not relevant under the other provisions of the Evidence Act and was clearly irrelevant and could not have been taken into consideration by the High Court. The Apex Court opined that the decision in the case had to turn on the evidence led in it. The case of the accused, who was tried subsequently had to be decided only on the basis of evidence led during the course of his trial and the evidence led in the case of previously tried accused persons was irrelevant. The Apex Court while propounding the aforesaid principles, relied upon the decision of Privy Council in Hui Chi-ming v. R. (1991) 3 ALL.ER 897. In that case, the Privy Council held that evidence of the outcome of an earlier trial arising out of the same transaction was irrelevant and therefore inadmissible since the verdict reached by a different jury, whether on the same or different evidence, in the earlier trial amounted to no more than evidence of the opinion of that jury. Further, it was laid down that a person could properly be convicted of aiding and abetting an offence even though the principal offender had been acquitted and accordingly, the trial Judge had rightly excluded evidence of the principal offender's acquittal of murder.
21. In the instant case, during trial of co-accused N.P.Singh and O.P.Chaudhary, no doubt, the prosecution witnesses have not fully supported the case of prosecution. But it was mainly on the identity of the persons facing trial at that time i.e. N.P.Singh and O.P.Chaudhary not being proved that they have Crl.Rev.Nos.746/2006 & 545/2006 Page 17 of 22 been acquitted. So far as the incident is concerned, except PW
- Pradeep, who stated that he received the injuries in factory, but admitted that he was also removed to hospital along with other injured persons by the police, others have deposed about the incident in which Arjun died and others suffered injuries.
Here, it is necessary to refer their version that they could identify the persons involved in the incident.
"PW2 Ram Singh deposed that "I cannot tell the names of the persons who gave beatings but I can identify them if shown to me."
PW1 Neelam Devi deposed about her husband being taken by two persons from the house for making some inquiry and that next day she had approached the police by visiting the police station in connection with the occurrence. She has stated that "I can identify the person who took away my husband, if shown to me".
PW6 Raju, another injured, deposed that "I do not know who were the person who made me sit in the vehicle or the persons who were already sitting in the vehicle. I do not know the name of other two labourers who were already present there. Then four persons started giving beatings to me, Badal and two labourers with dandas."
I do not know who took me from my house or gave beatings to me but I may identify them if shown to me."
22. It is necessary to mention here that so far as the complainant Neelam is concerned, she is a witness only to the incident of her husband Ram Singh and one Manoj being taken from the house after the midnight and on their failure to return, Crl.Rev.Nos.746/2006 & 545/2006 Page 18 of 22 her contacting the police for their rescue. She also stated that she could identify the person who took away her husband.
23. This Court cannot ignore that the nature of incident is such that all the persons suspected to be behind the theft allegedly committed at the house of N.P.Singh were huddled at the house of N.P.Singh and allegedly tortured to enquire and interrogate into the incident of theft. Due to the extreme torture given in most inhuman manner, Arjun was found dead at the spot by the police. His post mortem report speaks of the degree of the torture he was subjected to. At that time, all the persons allegedly involved in the occurrence were named by all the injured in their statements before the I.O. so there was hardly any need for getting the TIP conducted. The Court would appreciate the credibility and truthfulness of the witnesses on overall consideration of the events without being swayed by the fact that the witness does not support the prosecution version in its entirety.
24. It is pertinent to record here that the learned ASJ, who acquitted the co-accused persons N.P.Singh and O.P.Chaudhary had also heard arguments on the point of charge when the petitioner I.S.Bisht joined the proceedings and vide his detailed and well reasoned order, the petitioner I.S.Bisht was charged for the offence punishable under Sections 302/307/34 IPC. The legal position is well settled that acquittal can be in absentia. Power to discharge the accused is also vested in the learned Crl.Rev.Nos.746/2006 & 545/2006 Page 19 of 22 ASJ. There was nothing to prevent the learned ASJ to acquit all the accused persons chargesheeted by the police while disposing of the cases vide his judgment, on which the petitioners are now relying to seek quashing of order on charge and the charge. The learned ASJ, who conducted the trial and decided the case of co-accused, was satisfied that the petitioner I.S.Bisht had to stand trial in view of the material available on record. In the facts and circumstances, the case of another co-accused O.P.Chaudhary who joined the proceedings even after I.S.Bisht, was on no separate footing. Thus, the successor Court ordered to frame charge against him also.
25. The evidence led by the prosecution at the time when the co-accused N.P.Singh and O.P.Chaudhary were being tried, and to be adduced qua these two petitioners is separable and divisible, thus distinguishing the facts of this case from the facts of the cases relied upon by the petitioner.
26. Merely because some of the accused are acquitted in a trial separately held, the other accused is not entitled to benefit of acquittal order in all cases. It is settled law that where the evidence is inseparable and indivisible and on the same set of evidence the co-accused have been acquitted then the remaining accused need not face trial. However, if the evidence is separable and divisible and there are specific allegations and accusations against the accused who were not there in the case at the time of trial of co-accused who were acquitted, then it would be a subject matter of trial.
Crl.Rev.Nos.746/2006 & 545/2006 Page 20 of 2227. This Court should not meticulously analyze the case before the trial takes place to find out whether the case would result in conviction or acquittal. It is also trite that when a party approaches the Court for quashing of charge, this Court is not required to embark upon sifting the entire evidence and judge whether the accused is guilty or not. The only consideration before this Court should be whether there is prima facie indication of the involvement of the accused alleged in the cases or not.
28. So far as the quashing of the order on charge and the charge is concerned, the inherent power should not be exercised to stifle a legitimate prosecution case in exercise of power under Section 482 Cr.P.C. Reliance in this regard can be placed on the decision of Santosh De and Anr. vs. Archna Guha and Ors. 1994 (1) SCALE 423 wherein it was observed as under:-
"15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. Any and every single interlocutory order is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 Cr.P.C. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior Crl.Rev.Nos.746/2006 & 545/2006 Page 21 of 22 courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system."
29. Having noted the proposition of law and the facts and the material available on record against these two petitioners and taking into consideration the nature of evidence which is clearly separable and divisible and that the witnesses have to be given an opportunity to identify the offenders, I find that there is no jurisdictional error or illegality committed by the learned ASJ while passing the impugned orders. Power vested in this Court under Section 397/401 Cr.P.C. is a limited power to be exercised in exceptional circumstances which do not exist in the instant cases.
30. Both the petitions are devoid of any merit and the same are hereby dismissed.
31. Trial Court record be sent back forthwith. Both the petitioners are directed to appear before the concerned Trial Court on 14.05.2012.
(PRATIBHA RANI) JUDGE APRIL 27, 2012 „dc‟ Crl.Rev.Nos.746/2006 & 545/2006 Page 22 of 22