HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 43Case :- APPLICATION U/S 482 No. - 19497 of 2011
Petitioner :- Akash Kumar Sharma And Another
Respondent :- State Of U.P.
Petitioner Counsel :- Ajay Kumar Singh,Vivek Kumar Singh
Respondent Counsel :- Govt. Advocate
Hon'ble Shri Kant Tripathi,J.
1. Heard Mr. Vivek Kumar Singh for the petitioners and the learned AGA for the State and perused the record.
2. This petition has been filed under section 482 of the Code of Criminal Procedure (in short 'the Code') for quashing the proceedings of the session trial no. 1058A of 2000, State vs. Akash Kumar Sharma and others, pending in the court of Additional Sessions Judge, Court No.3, Meerut.
3. Mr. Vivek Kumar Singh submitted that initially the charge sheet was filed against co-accused Raju @ Raj Kumar and Smt. Daulat. The matter reached the court of session on committal, which was registered as S.T. No. 1058/2000, State vs. Raju @ Raj Kumar and another but the learned Additional Sessions Judge, on the basis of relevant evidence, summoned also the petitioners as accused under section 319 of the Code vide his order dated 4.2.2004. The petitioners moved application No. 17170 of 2005 in this Court under section 482 of the Code, in which an interim order dated 25.11.2005 staying the proceedings of the trial against the petitioners was passed. Consequently, the trial of co-accused Raju @ Raj Kumar and Smt. Daulat took place separately and they were acquitted on 29.3.2007 by the Additional Sessions Judge, Court No.15, Meerut. When the said two accused were acquitted, the trial against the petitioners was lying stayed, therefore, their case could not be decided and remained pending. Hon'ble Ravindra Singh, J. dismissed the petitioners' petition no.17170/2005 on 19.8.2010 and vacated the stay order, consequently the trial proceeded also against the petitioners.
4. The learned counsel for the petitioners submitted that in view of the judgment rendered in S.T. No. 1058/2000, whereby co-accused Raju @ Raj Kumar and Smt. Daulat have been acquitted, the trial of the petitioners would be nothing except a futile exercise, therefore, the proceedings of the sessions trial no. 1058-A/2000 may be quashed. It was next submitted that when co-accused persons have been acquitted, the petitioners are entitled to the benefit of that judgment on the principle of stare decissis.
5. In my opinion, the present petition does not appear to be maintainable in view of the fact that the first petition filed on behalf of the petitioners has already been dismissed by this Court on merits. At the time of dismissal of the first petition, the acquittal judgment was available, therefore, the petitioners could very will press the aforesaid ground (ground of acquittal of co-accused) while pressing the first petition but they did not do so, therefore, they can not be permitted to file a fresh petition for quashing the proceedings of the session trial no. 1058A of 2000.
6. In order to appreciate the question of relevancy of a judgment of acquittal in the subsequent trial against another accused of the same incident, it seems to be just and expedient to examine the relevant provisions contained in the Evidence Act. Sections 40, 41, 42, 43 and 44 of the Evidence Act provides for relevancy of judgment of Courts of justice. Section 40 provides the circumstances in which a previous judgment, order or decree may be relevant to bar a subsequent suit or trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction. Section 42 deals with the relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41 in so far as they relate to matters of a public nature. Section 43 provides that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Evidence Act. Section 44 deals with, fraud or collusion in obtaining judgment, or incompetency of the Court which delivered it. Therefore, a previous judgment, order or decree which is final, can be relied upon in any way as provided in sections 40 to 44 of the Evidence Act in a criminal case as well as in civil suits and not otherwise.
7. The Apex Court had occasions to consider the relevancy of judgments of acquittal in the subsequent trial being held against other accused. Some of the decisions of the Apex Court being relevant on the point in issue are as follows:
(1)S.P.E. Madras vs. K.V. Sundravelu (1978) 2 SCC 514;
(2)Rajan Rai vs. State of Bihar, 2006 (1) SCC 191;
(3)K.G. Premshanker vs. Inspector of Police & another, 2003 (1) JIC 206 (SC);
(4)Karan Singh vs. State of M.P. AIR 1965 SC 1037.
8. In the case of S.P.E. Madras (supra) the trial court had splitted the case into two cases. In the first case, the accused was convicted by the court of sessions but was acquitted by the High Court. On the basis of the acquittal order passed in the first case, the High Court quashed the second case. The Apex Court held that there was no justification for taking the view that evidence in both the cases was similar. The Apex Court further held that it is not the requirement of the law that if one case is ended in acquittal, prosecution in other case would be illegal. So also it can not be said that High Court's opinion that the charge was not "likely to stand" the trial, was on a point of law within the meaning of section 215 of the Code, therefore, the Apex Court quashed the order of the High Court.
9. In the case of Rajan Rai (supra) 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 of them were acquitted. The acquittal judgment attained finality. 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 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 vs. 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.
10. In the case of K.G. Premshanker (supra), the accused had been tried for certain offences alleged to have been committed in an incident. A civil suit for the damages, arising out of the incident, was also filed against the accused, which was dismissed. It was contended that the decision rendered by the civil court will prevail over the criminal prosecution, therefore, criminal proceeding was liable to be dropped. The Apex Court, keeping in view the provisions of section 40 to 43 of the Evidence Act, opined that the previous judgment which was final could be relied upon as provided under sections 40 to 43 of the Act and not otherwise. This principle was laid down on the basis of the decision of a Constitution Bench of the Apex Court in the case of M.S. Sheriff and another vs. State of Madras, AIR 1954 SC 397. In the case of M.S. Sheriff, the Constitution Bench of the Apex Court dealt with exactly similar situation as was in the case of K.G. Premshanker. In that case too, two sets of proceeding arising out of same facts were pending, namely, two civil suits for damages for wrongful confinement and another two criminal prosecutions under section 344 IPC for wrongful confinement. In that context the Constitution Bench held as follows:
"As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment."
11. In the case of Karan Singh (supra), one Ram Hans had absconded, so other accused persons were put up for trial. The learned Sessions Judge convicted Karan Singh and acquitted remaining other accused. The accused Karan Singh preferred an appeal before the Madhya Pradesh High Court but after the conviction of Karan Singh and hearing of the appeal in the High Court, the absconded accused Ram Hans had been arrested and put up for trial on the same charges and was acquitted. Karan Singh submitted before the High Court that co-accused persons had been acquitted, therefore, he was also entitled to acquittal. The M.P. High Court did not accept that plea of Karan Singh and maintained his conviction. The matter was ultimately brought before the Apex Court in appeal. The Apex Court held that each case has to be decided on the evidence led in it irrespective of any view of the same act that might have been taken on different evidence led in other case. It was further held that in spite of acquittal of a person in one case it is open to the Court in another case to proceed on the basis of evidence of the subsequent case. In this view of the matter, the Apex Court did not grant any benefit of acquittal order passed in favour of co-accused.
12. A Division Bench of this Court in Km. Rinki vs. State of U.P. & others, 2008 (3) JIC 267 (All.) (D.B.) and Hon'ble Single Judge in Raj Dularey Shukla v. State, 2006 (1) JIC 887 (All.) also propounded the same principle and held that if some of the accused are acquitted in a trial separately held, the other accused is not entitled to the benefit of acquittal order and his case is to be decided separately on the basis of the evidence adduced during his trial.
13. The aforesaid decisions have settled the legal position that judgments of courts of justice may be relevant under any of the provisions of sections 40 to 44 of the Evidence Act and not otherwise. In other words, if any judgment, order or decree of a court does not fulfill requirements of any of the aforesaid sections, it has no relevancy and must be held to be irrelevant. It is also well settled that every trial has to be decided on the basis of the evidence adduced in the trial itself, therefore, the previous judgment of acquittal rendered in a trial, if it is not relevant under any of sections 40 to 44 of the Evidence Act has no relevancy in the subsequent trial being held against co-accused and he can not be permitted to claim any advantage of such judgment, which is merely an opinion of the judge on the basis of the evidence led in the previous trial. The only relevancy of such judgment is to decide the question of applicability of bar to the subsequent trial under section 300 of the Code as section 40 of the Evidence Act makes the previous judgment relevant only for such purposes and not otherwise. In such matters, sections 41 to 44 of the Evidence Act also have no application. In this view of the matter the proceeding of the session trial being held against the petitioners can not be quashed on the basis of the judgment of acquittal rendered in favour of co-accused persons.
14. For the reasons stated above, the petition has no merit and is accordingly dismissed.
Order Date :- 19.9.2011
RKSh
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Haider Ajaz
Advocate
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