Chattisgarh High Court
Jawahar Yadav vs State Of Chhattisgarh And Ors. on 13 February, 2006
Equivalent citations: 2006CRILJ2078
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
ORDER Dilip Raosaheb Deshmukh, J.
1. Being aggrieved by the order dated 12-2-2004 passed by Shri A. K. Gaikwad, 2nd Additional Sessions Judge, Ambikapur, Surguja whereby the judgment of acquittal order under Section 376, I.P.C. delivered on 24-1 -1997 in Sessions Case No. 381 /96 by Shri Anees Abbas, 2nd Additional Sessions Judge, Ambikapur in State v. Jawahar Yadav was suo motu set aside and a retrial was ordered, the applicant Jawahar Yadav has preferred Criminal Revision No. 392/2004.
2. Being further aggrieved by a similar order dated 12-2-2004 passed, in enquiry proceedings initiated on an application dated 7-2-1997 by the prosecutrix Situ alias Sitwa, by Shri A.K. Gaikwad, 2nd Additional Sessions Judge, Ambikapur whereby after passing the order mentioned in para 1 above, the learned Judge ordered issuance of warrant of arrest against the applicant and directed the concerned Station House Officer to inform the applicant that the Sessions Trial No. 381/96 has been re-opened and if he desired he may seek stay from the Hon'ble High Court within a period of one month, failing which, the S.H.O, was directed to arrest and produce the applicant before the Court on 1-4-2004, the applicant has preferred Criminal Revision No. 170/2004.
3. Pursuant to the aforesaid orders and on being directed by the Superintendent of Police, Ambikapur vide letter dated 28-6-2004, F.I.R. was registered against the applicant in Police Station Ambikapur, District Surguja on 9-7-2004 under Sections 419, 420, 467 and 468, I.P.C. in Crime No. 417/ 04. Being aggrieved, the applicant preferred M. Cr. C. No. 2543/05 under Section 482 Cr. P.C. for quashing the aforesaid F.I.R.
4. On an allegation of being arrested by Police Station Ambikapur, District Surguja on 23-9-2005 in Crime No. 417/04 for alleged offences under Sections 419, 420, 467 and 468, I.P.C., the applicant further preferred M. Cr. C. No. 2495/05 under Section 439 of the Code of Criminal Procedure for grant of bail.
5. This order shall govern the above-mentioned Criminal Revision 392/2004, Criminal Revision 170/2004, Misc. Cr. Case No. 2495/2005 and Misc. Cr. Case No. 2543/2005.
6. Brief facts are as under :
In Sessions Case No. 381/96, on 10-12-96 the applicant-accused-Jawahar Yadav was charged under Section 376, I.P.C. for committing rape on one Situ alias Sitwa Bai, aged about 14 years on 17-10-96 at about 6.00 p.m. in village Chandeshwarpur, Police Station Dhourpur. Summons were ordered to be issued to prosecution witnesses. The accused-applicant-Jawahar Yadav was in judicial custody during trial. On 21-1-97 the prosecution examined the prosecutrix Situ alias Sitwa Bai (P.W. 7) and her father Punnu Yadav (P.W. 2). Both the aforesaid witnesses turned hostile and did not support the prosecution story. No further evidence was recorded on 22-1-1997 and 24-1-97 since summons issued were not returned after service. On 24-1-97 the then Assistant Public Prosecutor Shri Bajpai closed the prosecution evidence since the prosecutrix and her father had turned hostile. Shri Anees Abbas, 2nd Additional Sessions Judge, Ambikapur delivered judgment of acquittal on the same day i.e. 24-1-1997 and acquitted the accused-applicant-Jawahar Yadav of the charge under Section 376, I.P.C.
6A. A few days thereafter on 7-2-1997, the prosecutrix Situ alias Sitwa Bai accompanied by her father Punnu Yadav appeared before Shri Anees Abbas, 2nd Additional Sessions Judge, Ambikapur and made an application for re-opening the Sessions Case No. 381/96 on the ground that Maini alias Lotan Yadav, the father of the applicant-accused had produced his daughter Phulmati Bai and one Ramdhani Yadav in the Court on 21-1-1997 who had impersonated as the prosecutrix Situ alias Sitwa Bai and her father Punnu Yadav while testifying before the Court. The applicants were identified by Shri R. K. Gupta, Advocate. An enquiry was conducted and the matter was referred to the finger print expert, Police Headquarter (Finger Print Branch), M.P., Bhopal. Affidavit dated 5-11-1996 purporting to have been sworn by Situ alias Sitwa Bai, having been presented in support of application for bail and bearing her thumb impression was also sent for examination. The finger print expert (Finger Print Branch), Police Headquarter, M.P., Bhopal opined that the finger print on the affidavit dated 5-11-96 did not tally with the thumb impression of Situ alias Sitwa Bai on the order sheet dated 7-2-1997 which was attested by one Advocate R. P. Gupta. It only showed that someone had impersonated as Situ alias Sitwa Bai while swearing-in-affidavit on 5-11-1996 which was filed in support of the application for bail during investigation.
7. On 23-10-1997 Phulmati Bai, daughter of Maini alias Lotan Yadav who was alleged to have Impersonated Situ alias Sitwa Bai on 21-1-1997 while testifying before the 2nd Additional Sessions Judge, Ambikapur, appeared before the Court and her thumb impressions were taken and were ordered to be sent to the finger print expert for opining whether thumb impressions on affidavit dated 5-11-1996 were identical with the thumb impression of Phulmati Bai. However, it appears that this memorandum sent by Shri Anees Abbas never reached the Superintendent of Police, Surguja. On 27-10-97 and 4-11-1997 letters were sent by the Superintendent of Police, Surguja and the A.I.G. Finger Print Branch, Bhopal respectively to 2nd Additional Sessions, Ambikapur to send a specimen thumb impression of Phulmati Bai but the 2nd Addl. Sessions Judge never took cognizance of the matter and the order sheets from 1-12-1997 to 31-12-2003 only mentioned that the report of finger print expert be called after sending a memo through the Superintendent of Police, Surguja. Thus, despite there being a request not only from the Superintendent of Police, Surguja on 27-10-1997 but also by the finger print expert (Finger Print Branch), Bhopal, M.P. dated 4-11-1997, the then 2nd Addl. Sessions Judge never cared to look into the matter as to why the direction dated 23-10-97 of the Court had not been complied with and why the specimen finger prints of Phulmati Bai had not been sent to the finger print expert through Superintendent of Police, Surguja.
8. It appears from order sheet dated 9-11-2004 written by Shri A. K. Galkwad. the then 2nd Addl. Sessions Judge, Ambikapur, Surguja that a complaint was made to the District Judge in this matter to which he had sent a para-wise reply. Shri A. K. Gaikwad directed that the original record of Sessions Case No. 381/96 be called. On 29-1-2004 the original record of Sessions case No. 381/96 was received and on 12-2-2004 Shri A. K. Gaikwad after perusing the record passed the impugned order. In para 6 of the order, he observed that the report of the hand-writing expert indicated that the thumb impression of the lady who had impersonated as Situ alias Sitwa Bai on 5-11-96 while swearing-in affidavit to support the application for bail did not tally with the thumb impression of the prosecutrix available on record of Sessions Case No. 381/ 96. On this basis, he jumped to the conclusion that the same lady must have impersonated as Situ alias Sitwa on 21-1-1997 while testifying before the Court. On these premises, he also observed that after a lapse of about 7 years he was not in a position to request the Hon'ble High Court for giving direction to reopen the trial. He also observed that since he had information that the prosecutrix Situ alias Sitwa had committed suicide and the other prosecution witnesses were not available, yet in para 20 of the Order, Shri A. K. Gaikwad proceeded to suo motu set. aside the judgment dated 24-1-97 and to order retrial in Sessions Case No. 381/96. He further ordered that a warrant of arrest be issued against the accused Jawahar and sent to S. H. O. of the concerned Police Station. He further directed the concerned S. H. O. to inform the accused regarding the order passed by the Court to re-open the trial in Sessions Case No. 381/ 96 and that if he desired he could seek stay from the Hon'ble High Court within a period of one month. It was also directed that if the accused did not produce the stay order from the Hon'ble High Court within a period of one month, the S.H.O. should arrest the accused-Jawahar Yadav and produce him before the Court. The case was fixed for 1-4-2004 for the appearance of the accused.
9. The accused-Jawahar preferred Criminal revision No. 170/2004 on 9-3-2004 and preferred application M. Cr. P. No. 755/2004 for stay. Vide order dated 9-7-2004 the operation of the impugned order 12-2-2004 was stayed. It was further directed that the Sessions Court shall not proceed with the trial until further orders. This criminal revision was preferred against the order dated 12-2-2004 passed in the enquiry proceedings initiated on the application of Situ alias Sitwa Bai on 7-2-97. On 28-7-2004 the applicant-Jawahar Yadav preferred another criminal revision No. 392/2004 against the order dated 12-2-2004 passed by Shri A. K. Gaikwad in sessions trial No. 381/96 whereby, in para 20, the learned Addl. Sessions Judge had set aside the judgment dated 24-1-1997 and ordered retrial of Sessions Case No. 381/96. Meanwhile, the Superintendent of Police, Surguja issued a memo dated 26-6-2004 to the S. H. O. Police Station, Ambikapur to ensure compliance of the order dated 12-2-2004 passed by the Additional Sessions Judge, Ambikapur in S. T. No. 381/96, Inspector Shri Hemant Khare of P. S. Ambikapur in his over-anxiety to comply with the direction of the Superintendent of Police registered Crime No. 417/2004 in Police Station Ambikapur, District Surguja under Sections 419, 420, 467 and 468 of the I.P.C. against the accused Jawahar vide F. I. R. dated 9-7-2004 at 8.30 A.M. On the same day, in Cr. Revision No. 170/2004 this Court passed an order staying the operation of the order dated 12-2-2004, with a further direction that the sessions Court shall not proceed with the trial until further orders. On 29-9-2005 the applicant preferred M. Cr. C. No. 2543/2005 under Section 482, Cr.P.C. to quash the F.I.R. dated 9-7-2004 registered at Police Station, Ambikapur in Crime No. 417/2004. On 4-10-2005 the applicant preferred an application under Section 439, Cr.P.C. for bail which is registered as M. Cr. C. 2495/2005 alleging that despite order dated 9-7-2004 passed by this Court the applicant-Jawahar Yadav was arrested by Police Station, Ambikapur, District Surguja on 23-9-2005 for the aforesaid offences registered in Police Station Ambikapur, District Surguja.
10. Shri Rajesh Pandey, learned Counsel for the applicant appearing in all the aforesaid matters argued that the orders dated 12-2-2004 passed in enquiry proceedings as well as in Sessions Case No. 381/96 are without jurisdiction and per se illegal since the learned Addl. Sessions Judge had no jurisdiction under Section 362, Cr.P.C. to set aside the judgment dated 24-1-1997 whereby the applicant was acquitted of the charge under Section 376, I.P.C. and to order retrial. He further argued that upon delivery of judgment on 24-1-1997, the Court became functus officio and had no jurisdiction to set aside the judgment delivered seven years ago by its predecessor.
11. Reliance was placed on State of Kerala v. M.M. Manikantan Nair ; Nazar v. Varghese reported in 2003 Cri LJ 3622 (Kerala High Court) and Hari Singh Mann v. Harbhajan Singh Bajwa reported in AIR 2001 SC 43 : 2001 Cri LJ 128. It was further contended that the offence of impersonating the prosecutrix for testifying before a Court of law was an offence touching the administration of justice and no cognizance could be taken by the police thereof. It was further contended that since this Court had vide order dated 9-7-2004 stayed the operation of the order dated 12-2-2004 passed by the 2nd Additional Sessions Judge, Ambikapur, the arrest of the applicant-Jawahar by the Police on 23-9-2005 for alleged offences punishable under Sections 419, 420, 467 and 468, I.P.C. was per se illegal. Learned Counsel prayed that since the fundamental right of personal liberty under Articles 19(1)(d) and 21 of the Constitution of India had been violated by the police by abusing and misusing power the applicant was entitled to compensation of Rs. 5 lacs in view of the principles laid down by the Apex Court in D.K. Basu v. State of West Bengal .
12. On the other hand, Shri J.D. Bajpai, learned Addl. Public Prosecutor argued in support of the impugned orders dated 12-2-2004. It was also contended that since the offences under Sections 419, 420, 467 and 468, I.P.C. were registered in compliance of the impugned order dated 12-2-2004 in Police Station Ambikapur, District Surguja on 9-7-2004 at 8.30 a.m. i.e. before the Hon'ble High Court passed the order staying the operation of the order dated 12-2-2004 in Criminal Revision No. 170/2005 on 9-7-2004. the same could not be faulted with. The application under Section 439, Cr.P.C. for grant of bail was also opposed by the learned Additional Public Prosecutor.
13. Having heard the rival contentions and after minutely going through the record of Sessions Case No. 381/1996 and the record of enquiry made on application 7-2-1997 preferred by Situ alias Sitwa, I shall first proceed to consider whether there were any justifiable grounds for Shri A. K. Gaikwad, the 2nd Addl. Sessions Judge, Ambikapur for arriving at a conclusion that one Phulmati had impersonated as Situ alias Sitwa while testifying before the Court on 21-1-1997 at the behest of the accused-applicant. In the application dated 7-2-1997 it was alleged by Situ alias Sitwa that one Phulmati Bai who was the daughter of Maini alias Lotan Yadav i.e. the father of the accused-Jawahar had impersonated her while testifying before the Court on 21-1-97. However, there was absolutely no material before the Court to substantiate the allegation. The thumb impression of Phulmati though taken on 25-6-1997 never reached the fingerprint expert for examination. The report of the fingerprint expert received earlier was only suggestive of the fact that on 5-11-96 the affidavit sworn by an unknown lady did not bear the thumb impression of Situ alias Sitwa. This was during investigation after the accused was arrested on 22-10-96 when an application for bail was moved on behalf of the accused. It could by itself in no manner lead to an inference that the lady who had testified before the Court on 21-1-1997 was either Phulmati or was a person other than the prosecutrix i.e. Situ alias Sitwa.
14. On 7-2-1997 Shri Anees Abbas, the then 2nd Addl. Sessions Judge had recorded the statement of Situ alias Sitwa on oath. In that statement, Situ did not testify that the accused had committed rape on her. She only stated that the accused had outraged her modesty. How and when she did not narrate. She very categorically stated that she did not lodge any report against accused-Jawahar and the accused did not commit any incident with her. She also stated that she did not know any lady with the name Phulmati. Lastly, she categorically stated that nobody had testified on her behalf in Court and nobody had moved any false application on her behalf in Court and she did not want any enquiry of any sort in the matter.
15. It is thus clear that there was absolutely no material on record before Shri A. K. Gaikwad, 2nd Addl. Sessions Judge, Ambikapur to jump to the conclusion that at the behest of the accused-Jawahar some lady had impersonated the prosecutrix Situ alias Sitwa and had testified before Shri Anees Abbas, the then 2nd Addl. Sessions Judge, Ambikapur on 21-1-97.
16. Shri Ravindra Agrawal, learned Panel Lawyer appearing for the State had filed a report on 14-1-2006 before this Court, of City Superintendent of Police, Ambikapur showing that the prosecutrix Situ alias Sitwa had expired on 14-7-2003. The impugned order dated 12-2-2004 passed by Shri A. K. Gaikwad also shows that the learned Judge was aware of the situation that Situ alias Sitwa had already expired and the other prosecution witnesses were not traceable, Shri A. K. Gaikwad, the 2nd Addl. Sessions Judge, Ambikapur, on the date of passing the impugned order dated 12-2-2004, was thus fully aware of the following :
a) that the prosecutrix in Sessions Trial No. 381/96 had already expired;
b) that the statement on oath dated 7-2-1997 of Situ alias Sitwa did not reveal that someone had impersonated her in Court on 21-1-1997;
c) that the statement dated 7-2-1997 of Situ alias Sitwa also did not show that the accused had committed rape on her;
d) that the report of the fingerprint expert only showed that the prosecutrix Situ alias Sitwa had not sworn the affidavit on 5-11-1996 during investigation by police to support the application for bail, and
e) lastly, that the fingerprints of Phulmati who was alleged to have impersonated the prosecutrix on 21-1-1997 had never been sent to the fingerprint expert and there was no report from the fingerprint expert to show that the lady who had testified before the Court on 21-1-1997 or who had sworn the affidavit on 5-11-96 was Phulmati Bai.
17. It is thus clear that Shri A. K. Gaikwad, the learned Addl. Sessions Judge without any material on record jumped to the conclusion that someone had impersonated the prosecutrix for testifying in Sessions Trial No. 381/1996 on 21-1-1997 at the behest of the accused-Jawahar. The learned Addl. Sessions Judge also lost sight of the fact that right from the day of his arrest on 22-10-1996, the accused was continuously in judicial custody till date of judgment i.e. 24-1-1997.
18. Section 362 of the Code of Criminal Procedure reads as under :
362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
The mandate of Section 362, Cr.P.C. reproduced above clearly shows that once the Judge has signed its judgment or final order disposing of a case, the Court shall not alter or review the same except to correct a clerical or arithmetical error. There is no provision in the Code of Criminal Procedure authorizing the Court to review its judgment once it has been signed and delivered. Section 362, Cr.P.C. is based on an acknowledged principle of law that once the matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for reviewing the judgment unless the former judgment is set aside by a Court of a competent jurisdiction in any manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed and such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. In Hari Singh Mann v. Harbhajan Singh Bajwa reported in AIR 2001 SC 43 : 2001 Cri LJ 128 and State of Kerala v. M.M. Manikantan Nair this principle has been reiterated! by the Apex Court which has gone to the extent of saying that the Code of Criminal Procedure does not authorize even the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction since Section 362 of the Code mandates that the Court after it has signed its judgment or final order disposing of a case cannot alter or review the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed.
19. It is thus clear that the orders dated 12-2-2004 passed by Shri A. K. Gaikwad, the then 2nd Addl. Sessions Judge, Ambikapur were wholly erroneous, illegal and without jurisdiction. Shri A. K. Gaikwad completely lost sight of the facts that the accused had been acquitted in the year 1997, that the prosecutrix had expired and there was no material to show that at the behest of the accused some lady had impersonated the prosecutrix for testifying before the Court on 21-1-1997. In paragraph 11, it was observed by Shri A. K. Gaikwad that despite being accused of an offence under Section 376, I.P.C., the accused was roaming freely on the basis of false evidence and since seven years had passed away, he was not in a position to request the Hon'ble High Court to reopen the case or to get an appeal against acquittal preferred by the State Government because he had information that the prosecutrix had committed suicide and the principal witnesses in the case were absconding. On these reasonings, he thought it fit to set. aside the judgment passed by his predecessor seven years ago i.e. on 24-1-1997 and to order re-trial of Sessions Trial No. 381/1996. The manner in which Shri A. K. Gaikwad proceeded to pass the two impugned orders on 12-2-2004 only shows complete ignorance of law. In his over- anxiety to do justice, Shri A. K. Gaikwad did more than injustice since the orders passed by him ultimately led to deprivation of the personal liberty of the applicant. Paragraph 11 of the order dated 12-2-2004 itself shows that there was absolutely no chance of success for the prosecution even if a re-trial was ordered in Sessions Trial No. 381/1996. The manner in, and the grounds upon which Shri A. K. Gaikwad passed the impugned order leaves no room for any doubt that the orders were a passed on wholly unjustifiable grounds, without jurisdiction and were per se illegal.
20. Shri Hemant Khare, Sub-Inspector registered Crime No. 417/2004 on 9-7-2004 under Sections 419, 420, 467 and 468, I.P.C. against the accused-Jawahar upon a memo dated 26-6-2004 passed by Superintendent of Police, Surguja directing him to comply with the order dated 12-2-2004 passed by Shri A. K. Gaikwad, 2nd Addl. Sessions Judge, Ambikapur. The said F.I.R. shows that it was registered simpliciter in compliance of the aforesaid order of the Superintendent of Police without there being any material whatsoever for registering a criminal case against the accused-Jawahar under Sections 419, 420, 467 and 468, I.P.C. As mentioned earlier, the accused-Jawahar was in judicial custody from the date of his arrest i.e. 22-10-1996 till pronouncing of the judgment on 24-1-1997. Even on 21-1-1997 while the evidence of the prosecutrix was recorded, he was in judicial custody. Complaint of Situ alias Sitwa dated 7-2-1997 had mentioned that Maini alias Lotan Yadav i.e., the father of the accused had produced his daughter Phulmati to impersonate prosecutrix Situ alias Sitwa for testifying before the Court. There was nothing to indicate that the accused-Jawahar had played any part in the aforesaid act of impersonation. Besides this, the act of impersonating another for the purpose of giving evidence in Court squarely falls under Section 205 of the I.P.C. which reads as follows :
205. False personation for purpose of act or proceeding in suit or prosecution.- Whoever falsely personates another, and in such assumed character makes any admission or statement or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
21. It is thus clear that the offence, if any, was made out only against the person who had impersonated the prosecutrix and testified before the Court on 21-1-1997. The offence, if any, did not fall under Sections 419, 420, 467 and 468 of the I.P.C. Section 419, I.P.C. relates to punishment for cheating by personation. Cheating is defined under Section 415, I.P.C. wherein there has to be a fraudulent or dishonest inducement of any person to deliver any property to any person. Section 420 of the I.P.C. relates to cheating and dishonestly inducing delivery of property. Section 467, I.P.C. relates to forgery of valuable security, will, etc. and Section 468, I.P.C. relates to forgery for purpose of cheating. There is absolutely nothing to show that the accused-Jawahar was the author of any such crime as aforesaid. The allegations made in the first information report or even in the complaint dated 7-2-1996 by Situ alias Sitwa, if taken at their face value and accepted in its entirety, do not prima facie constitute any offence or make out a case against the applicant-Jawahar. It is also clear that there was absolutely no material to register a criminal offence under Sections 419, 420, 467 and 468, I.P.C. against the applicant-Jawahar. Under the above-mentioned circumstances, it is a fit case in which the first information report registered at Police Station Ambikapur, Surguja in Crime No. 417/2004 on 9-7-2004 under Sections 419, 420, 467 and 468, I.P.C. against the applicant-Jawahar deserves to be quashed forthwith in exercise of powers under Section 482, Cr.P.C.
22. As a result of the aforesaid discussions, it is absolutely clear that the arrest of the accused-applicant-Jawahar on 23-9-2005 was illegal and unwarranted since there was no basis to proceed against the accused for offences under Sections 419, 420, 467 and 468, I.P.C. by the Ambikapur Police. Another point to be noticed is that on 9-7-2004 itself this Court had stayed the operation of orders dated 12-2-2004 passed by Shri A. K. Gaikwad. The State of Chhattisgarh through Police Station was also a party in the said criminal revision. Thus, the Station House Officer of Police Station Ambikapur. Surguja had knowledge of the aforesaid order whereby the operation of the order dated 12-2 2004 had been stayed. It is thus clear that the arrest of the applicant-Jawahar by Police Station Ambikapur, District Surguja on 23-9-2005 was illegal.
23. Although no material existed to register a criminal case under Sections 419, 420, 467 and 468, I.P.C. against the applicant, Shri Hemant Khare, Inspector of P. S. Ambikapur registered offences under Sections 419, 420, 467 and 468, I.P.C. against the applicant-Jawahar and despite the order dated 9-7-2004 passed by this Court staying the operation of the order dated 12-2-2004, the applicant was arrested on 23-9-2005. The police clearly overlooked the fact that the act of impersonating the prosecutrix for the purpose of giving evidence in Court in Sessions Trial No. 381/96 was an offence under Section 205, I.P.C. against administration of justice and was squarely covered under Section 195(b)(i) of the Code of Criminal Procedure and cognizance could be taken only by a Court on the complaint in writing of that Court in which such offence was committed. He also overlooked the fact in its over-anxiety to comply with the memo issued by the Superintendent of Police, Ambikapur on 26-6-2004 that the applicant-Jawahar could not have any role in the said offences under Sections 419, 420, 467 and 468, I.P.C. since he was in judicial custody from 22-10-1996 to 24-1-1997.
24. In M.Cr.C. No. 2453/2005, the applicant had filed a document as Annexure P/6 which is a report sent by the S.H.O. P.S. Ambikapur, District Surguja to the Chief Judicial Magistrate, Ambikapur on 23-9-2005. It says that no crime was registered against the applicant-Jawahar Yadav in P. S. Ambikapur and he was not detained in custody for any offence. It creates an element of doubt since Annexure P/5 shows that an offence under Sections 419, 420, 467 and 468, I.P.C. had been registered as Crime No. 417 at P. S. Ambikapur against the applicant-Jawahar. How could it be that the applicant alleges that he was arrested on 23-9-2005 in the above-mentioned crime by P.S. Ambikapur and the S.H.O. of P.S. Ambikapur sends a report on 23-9-2005 vide Annexure P/6 to the Chief Judicial Magistrate that the applicant has not been arrested under any offence of P.S. Ambikapur since no offence was registered against him.
25. The record of Sessions Trial No. 381/ 96 shows that after passing the impugned order on 12-2-2004 warrant of arrests issued against Jawahar were repeatedly returned unserved showing the applicant absconding. On 14-6-2004 Shri A. K. Gaikwad, the then 2nd Addl. Sessions Judge, Ambikapur passed an order declaring the applicant-accused absconding and issued a permanent warrant of arrest against the applicant. The order sheet also shows that such a warrant of arrest was issued on the same day. The proceedings drawn thereafter do not show that in view of the order dated 9-7-2004 passed by this Court, whereby the operation of the order dated 12-2-2004 was stayed, the learned Addl. Sessions Judge had recalled the permanent warrant of arrest issued on 14-6-2004. In view of Annexure A/6 could it be that the applicant-Jawahar was arrested by the Ambikapur Police in compliance of the permanent warrant of arrest issued by the Court on 14-6-2004, otherwise it would be beyond comprehension that if the applicant-accused was arrested on 23-9-2005 in Crime No. 417/2004 registered at P.S. Ambikapur under Sections 419, 420, 467 and 468, I.P.C. the S.H.O. P.S. Ambikapur would on the same day have taken the risk of sending a report vide Annexure P/6 that the applicant-accused had not been arrested by P.S. Ambikapur for any offence. Be that as it may, it is clear that the arrest of the applicant-Jawahar by the Ambikapur Police on 23-9-2005 was, in either case, unwarranted by law.
26. In the result, the following order is passed :
(i) Cr. Revision 170/2004 is allowed. Order dated 12-2-2004 passed by Shri A. K. Galkwad, the then Addl. Sessions Judge, Ambikapur in enquiry proceedings on an application filed by Situ alias Sitwa on 7-2-1997 is set aside.
(ii) Cr. Revision No. 392/2004 is allowed. Order dated 12-2-2004 passed by Shri A. K. Gaikwad the then Addl. Sessions Judge, Ambikapur in Sessions Trial No. 381/96 setting aside the judgment of acquittal dated 24-1-1997 passed by Shri Anees Abbas, the then 2nd Addl. Sessions Judge, Ambikapur in S.T. No. 381/96 and ordering re-trial and issuance of warrant of arrest against the applicant is set aside.
(iii) M.Cr.C. No. 2453/2005 is allowed. The F.I.R. dated 9-7-2004 registered at Police Station Ambikapur in Crime No. 417/ 2004 for offences punishable under Sections 419, 420, 467 and 468, I.P.C. is quashed.
(iv) M.Cr.C. No. 2495/2005 for bail is also allowed. In view of the orders passed above in paragraphs (i), (ii) and (iii), the arrest of the applicant-Jawahar on 23-9-2005 by Police Station, Ambikapur was wholly unwarranted by law. It is, therefore, directed that applicant-Jawahar shall be set at liberty forthwith, if not required in any other offence. So far as the prayer for award of compensation is concerned, in view of the observation in para 25 above, the applicant is at liberty to work out his remedy under law in appropriate proceedings.