Madhya Pradesh High Court
Rakesh Kumar Pandey vs State Of M.P. on 1 March, 2018
THE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR
(Single Bench - Rajendra Mahajan J.)
CRIMINAL REVISION No. 536 of 2013
Rakesh Kumar S/o Shri Ram
Pandey aged about 64 years
Occupation - Teacher R/o Van
Khandeshwar Road Jhansi Mohalla,
Bhind Distt. Bhind (M.P.) Applicant
Versus
1. The State of Madhya Pradesh
through Police Station Kumbhraj
district Guna (M.P.).
2. Arvind Kumar S/o Bateshwar
Dayal Mishra aged about 57
years R/o 34, Vankhandeshwar
Road Jhansi Mohalla, Bhind
Distt. Bhind (M.P.).
3. Gopal Krishna S/o Shri
Ramesh Datt Dixit aged about
54 years R/o Vankhandeshwar
Road Jhansi Mohalla, Bhind
Distt. Bhind (M.P.).
4. Jabar Singh S/o Shri Laxmi
Singh aged about 54 years
R/o P.S. Manpura Dehat
Distt. Bhind (M.P.). Non-Applicants
_______________________________________________
For applicant :- Shri Rajesh Shukla, Ld.
Counsel assisted by Shri B.S.
Gour, Ld. Counsel.
2
CrR.536/2013
For Non-Applicant No. :- Shri Shiraz Quraishi, Ld.
1/State Public Prosecutor.
For Non-Applicant Shri Prashant Sharma, Ld.
:-
No.2/complainant Counsel assisted by Shri
S.L. Dixit, Ld. Counsel.
For Non-Applicant Nos.
:- Proforma non-applicants.
3 and 4
__________________________________________
ORDER
(Pronounced on the 1st day of March 2018) The applicant has filed this criminal revision under Section 397 read with 401 of the CrPC challenging the legality and correctness of the impugned judgment and order dated 11/6/2013 passed by the Fifth Additional Sessions Judge Bhind in Criminal Appeal No. 47/2012 setting aside the order of acquittal dated 19/12/2011 passed by the Judicial Magistrate First Class Bhind under Sections 468, 471 and 420 of the IPC in Criminal Case No. 1578/2006 thereby directing the learned JMFC to hold retrial by framing a charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 of the IPC giving opportunities to the parties concerned to adduce further evidence and to decide the case afresh.
2. The facts and circumstances giving rise to this 3 CrR.536/2013 revision are given below in brief:-
(2.1) Non-applicant No. 2/complainant lodged the written complaint at Police Station Kotwali Bhind against the applicant and non-applicant Nos. 3 and 4 stating that Munni Bai was her Tai (Aunt). She died in his residence at Bhind on 27/5/1991. Her younger brother and he performed her last rites as per customs. He has alleged in the complaint that non-applicant No. 3 Gopal had forged a will of Munni Bai bearing date 25/2/1988. Upon which, applicant Rakesh and non-applicant No. 4 Jabar Singh put their signatures as witnesses. On the basis of the forged will, applicant No. 3 had got 1/3 share of Munni Bai in the agricultural lands concerned mutated in his name. This fact has come into his knowledge in a case bearing No. 28A-6/98-99 then pending on the file of Assistant Settlement Officer Bhind. On the basis of the complaint, on 4 CrR.536/2013 4/7/2001, the police recorded the FIR and registered a case at Crime No. 290/2001 against the applicant and non- applicant Nos. 3 and 4 for an offence punishable under Section 420 IPC. (2.2) Upon completion of the investigation in the case, on 31/7/2002, the police filed a charge-sheet against the applicant and non-applicant Nos. 3 and 4 in the JMFC court concerned for their prosecution under Sections 420, 467, 468, 471 and 120-B IPC.
(2.3) On 26/7/2003, the trial court framed charges against the applicant and non- applicant Nos. 3 and 4 for the offences punishable under Sections 420, 468 and 471 IPC. They denied the charges and opted for trial. Thereupon, the trial court held trial in accordance with law.
(2.4) On 19/12/2011, the learned JMFC passed the judgment whereby he acquitted the applicant and non-applicant Nos. 3 and 4 5 CrR.536/2013 of the charges under Sections 420, 468 and 471 IPC giving them benefit of doubt.
(2.5) Feeling aggrieved by the order of
acquittal, non-applicant No. 2/
complainant filed the appeal under the provisions of Section 372 of the CrPC.
The appeal came to be registered as Criminal Appeal No. 47/2012. The appeal was decided by the learned Fifth Additional Sessions Judge Bhind vide the impugned judgment and order, whereby he has held that the main allegations against the applicant and non-applicant Nos. 3 and 4 are that they forged "Will"
of deceased Munni Bai, therefore, the trial court ought to have framed a charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC and tried to them thereunder in addition to the charges already framed against them. In this view of the matter, the 6 CrR.536/2013 learned ASJ has set aside the order of acquittal dated 19/12/2011 passed by the learned JMFC. Having exercised the power under Section 386 of the CrPC, the learned ASJ has directed the trial court to frame a charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC and to give the parties concerned opportunities to adduce their evidence, and thereafter it shall decide the case de novo under Sections 467, 468, 471 and 420 IPC. In this connection, para 14 of the impugned judgment is relevant.
3. Feeling aggrieved by the impugned judgment and order, the applicant has filed this criminal revision.
4. Learned counsel for the applicant submitted that the trial court had framed charges against the applicant and non-applicant Nos. 3 and 4 under Sections 468, 471 and 420 IPC vide order dated 26/7/2003. Against that order, neither non-applicant No.1/the prosecution nor non-applicant No.2/the complainant, as an aggrieved 7 CrR.536/2013 person, filed a criminal revision alleging that the trial court had erred in not framing a charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC, although there is prima facie evidence on record against them for having committed the offence thereunder. On the other hand, the applicant and non- applicant Nos. 3 and 4 filed the criminal revision being No. 139/2003 against the order of framing of the charge. In the course of hearing of the revision, non-applicant No.1 had not raised an objection that the trial court ought to have framed a charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC. However, the revisional court dismissed the revision filed by the applicant and non-applicant Nos. 3 and 4, affirming the order of framing of charge. After referring to the petition of appeal filed by non-applicant No. 2 under Section 372 CrPC, he submitted that non-applicant No. 2 had not averred therein that the trial court had committed an error by not framing a charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC. After further referring to the impugned judgment and order, he submitted that the learned ASJ 8 CrR.536/2013 suo motu held that the trial court had to frame charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC. He submitted that vide the MP Act 2 of 2008 w.e.f. 14/2/2008, the offence under Section 467 IPC along with other IPC offences is made triable by the court of Sessions and as per the law laid down by the Supreme Court in the case of Ramesh Kumar Soni v. State of M.P., (2013) 14 SCCC 696, the amendment has a retrospective effect, therefore, the trial court having the status of the Judicial Magistrate First Class is now incompetent to hold trial under Section 467 IPC, and the trial under said Section will be ab initio invalid. He submitted that the learned JMFC has held in its judgment that the prosecution has failed to prove beyond reasonable doubt that the applicant and non- applicant Nos. 3 and 4 had committed the offences punishable under Sections 468, 471 and 420 IPC. That is why the learned JMFC had acquitted them of the charges of said offences giving benefit of doubt. Therefore, the learned ASJ has also made a legal mistake by directing the trial court to reconsider its finding by re-appreciating and reanalyzing the evidence. Thus, there are legal 9 CrR.536/2013 impediments of grave nature in the case. He submitted that the trial court took near about a decade to decide the case on merits. During this long period, the applicant and non-applicant Nos. 3 and 4 suffered pangs of trial to a great extent mentally as well as monetarily. He submitted that if they are put to retrial, they will have to suffer agonies of retrial for years together in view of the tedious procedure of conducting trial. He submitted that it is a settled law that a retrial is not a weapon to harass an accused or a sort of bounty on the prosecution to enable it to do something which did not and could not have been asked for by it. He submitted that it is well settled in law that an order of retrial of a criminal case is passed in an exceptional case when the appellate court is satisfied that the court trying the case has no jurisdiction to try it or the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings. But none of these factors exists in the present case. Thus, the learned ASJ has no justification to order retrial of the case directing the trial court to frame a charge against the applicant and non- applicant Nos. 3 and 4 under Section 467 IPC and to give 10 CrR.536/2013 fresh findings in respect of the charges under Sections 468, 471 and 420 IPC. Upon these submissions, he prayed that the impugned judgment and order is perverse in law and it is liable to be set aside with a direction to the appellate court to decide the appeal filed by non-applicant No.2 in accordance with the provisions of Section 372 CrPC on merits.
5. Per contra, learned counsel for the non-applicant No.1/the prosecution and non-applicant No. 2/the de facto complainant defended the impugned judgment and order by placing reliance upon the decisions rendered by the Supreme Court in the cases of Patel Jethabhai Chatur v. State of Gujarat, AIR 1977 SC 294 and Criminal Appeal No. 165/2018 case title Issac @ Kishore v. Ronald Cheriyan and ors. date of order 23/1/2018.
6. I have given my full consideration to the submissions raised on behalf of the parties by their counsel at the Bar and perused the judgments rendered by the learned JMFC and the learned ASJ and the material on record in its entirety.
7. From perusal of record of the trial court, I find that in the course of trial of the case, neither non-applicant 11 CrR.536/2013 No.1 nor non-applicant No.2 had ever raised an objection that the trial ought to have been conducted against the applicant and non-applicant Nos. 3 and 4 by framing a charge against them under Section 467 IPC in addition to the charges which have been already framed. Moreover, neither non-applicant No. 1 nor non-applicant No. 2 had filed an application under Section 216 of the CrPC to add a charge of Section 467 IPC before the judgment was pronounced by the trial court. Upon the perusal of the petition of appeal filed by non-applicant No. 2 under the provisions of Section 372 CrPC, I find that he has not averred that the trial court ought to have conducted the trial against the applicant and non-applicant Nos. 3 and 4 by framing a charge under Section 467 IPC in addition to the charges which had been already framed against them. I am of the considered opinion that in view of the provisions of aforestated MP Act 2 of 2008 w.e.f. 14/2/2008 and the law laid down by the Supreme Court in the case of Ramesh Kumar Soni (supra), the trial court is incompetent to hold the trial against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC in the changed circumstances, therefore, the trial will be invalid 12 CrR.536/2013 ab initio. As per the record, the applicant and non- applicant Nos. 3 and 4 had suffered agonies of trial in terms of mental and financial for about ten years and that if the impugned judgment and order is allowed to stand, then they would certainly have to face the retrial years together with no fault of theirs. Moreover, I find that the trial court has not committed any grave illegalities or irregularities or both warranting the retrial of the case and that the facts of the cases of Patel Jethabhai Chatur (supra) and Issac @ Kishore (supra) are absolutely different from the present case. Therefore, the law laid down in the said case laws are not applicable in the instant case. For the said reasons, I hold that the learned ASJ has wrongly exercised the power under Section 386 CrPC by setting aside the order of acquittal passed by the learned JMFC and by directing the trial court to frame a charge against the applicant and non-applicant Nos. 3 and 4 under Section 467 IPC and to decide the charges under Sections 468, 471 and 420 IPC by re-appreciating and reanalyzing the evidence on record.
8. For the foregoing reasoning and discussion, this 13 CrR.536/2013 revision is allowed. The impugned judgment and order together with the directions are set aside. The appellate court concerned or the successor court as the case may be is directed to decide the appeal filed by non-applicant No. 2 under Section 372 CrPC in accordance with law preferably within six months from the date of receipt of this order along with records of the trial court and the appellate court. The interim order dated 17/7/2013 passed by this Court shall stand vacated with immediate effect.
(Rajendra Mahajan) Judge AKS Digitally signed by ALOK KUMAR Date: 2018.03.07 12:26:29 +05'30'