Ajai Kumar Rai vs State of U.P. and Another

Surendra Singh, J.—Heard learned counsel for the applicant as well as the learned A.G.A. and perused the material placed on record.

The applicant by way of filing this application u/s 482 Cr.P.C. has sought to quash the proceedings of Criminal Case No. 4275 of 2001 (State Vs. Baidhnath and others) arising out of case crime no. 458 of 1988, under Sections 307, 504, 506 IPC, P.S. Sigra, District Varanasi pending in the court of Chief Judicial Magistrate, Varanasi.

Learned counsel for the applicant has contended that one of the co-accused Pramod Kumar Rai @ Budhai Rai has been tried and acquitted in S.T. No. 1023 of 1998 by Additional Sessions Judge, Court No. 12, Varanasi vide judgment and order dated 21.8.2001. He has further contended that since co-accused has been acquitted for the reasons that the prosecution witnesses did not support the prosecution version, there is no chance of case resulting into conviction of the applicant and if the case is allowed to continue against him it will only be a sheer formality and wastage of valuable time of the court and, therefore, the applicant has claimed that he be afforded the benefit of principle of "stare decisis" and the proceeding against him should be dropped. Reliance has been placed on the several decisions rendered by Single Judge of this Court.

On the other hand, learned A.G.A. has contended that the applicant has absconded and did not appear before the court concerned till date. He has further submitted that judgment and order of acquittal of co-accused Pramod Kumar Rai @ Budhai Rai rendered in S.T. No. 1023 of 1998 arising out of same prosecution is wholly irrelevant in the case of the present applicant who is to be tried subsequent to earlier one. Much emphasis has been made on the non-admissibility of the judgment of acquittal in the present trial in view of Sections 40 to 44 of Indian Evidence Act. He has further contended that the case of the present accused applicant has to be decided only on the basis of evidence adduced during the course of his trial. He has relied upon the view expressed by Hon''ble the Supreme Court in the cases of Rajan Rai Versus State of Bihar, 2006(1) Supreme Court Cases (Crl), 209, S.P.E., Madras Vs. K.V. Sundravelu, , K.G. Prem Shankar Vs. Inspector of Police & another 2002(45) ACC 920 (SC) and Karan Singh Vs. State of Madhya Pradesh, . He has further relied upon the decision of the Division Bench of this Court in Km. Rinki Vs. State of U.P. 2008 (63) ACC 476. It has been observed by the Division Bench of this Court as follows:

The inference that is deducible from discussion of the above decisions that the judgment of acquittal rendered in the trial of other co accused is wholly irrelevant as the said judgment would not be admissible under the provisions of sections 40 to 44 of the Evidence Act. It also leaves no manner of doubt that every case has to be decided on the evidence adduced therein and therefore, the case of the petitioner has to be decided on the basis of evidence which may be adduced during the course of trial.

The principles that are distilled from the discussion of the above decisions are:

(i) the acquittal of a co-accused in a separate trial cannot be made basis for quashing the proceedings against another co accused who is being separately tried on the principle that each case has to be decided on the evidence adduced in that case;

(ii) judgment of acquittal rendered in one case is not relevant in the case of co-accused separately tried inasmuch as sections 40 to 44 of the evidence Act deal with relevancy of certain judgments in probate, matrimonial, admiralty and insolvency jurisdiction and therefore inapplicable to a criminal case.

Having heard learned counsel for the applicant and having perused the material placed on record as well as the view expressed by Hon''ble the Supreme Court and Division Bench of this Court, shorn of all superfluities and to sum up it may be observed that it will be travesty of the justice to close the case and acquit an accused who has not appeared before the court at all. The principle of "stare decisis" should not be applied to the case of accused who has been evading the process of law. It will be misuse of power of the court, if such an order is passed in respect of these persons who have got no respect of the order passed by this Court.

The sum and substance of the dictum of the Apex Court and the Division Bench of this Court does not permit me to take a different view except the view taken by Apex Court and Division Bench.

However considering the nature of the argument, it is provided that in case the applicant appears/surrenders before the court concerned and applies for bail within two weeks from today, the same shall be considered and decided in accordance with law taking into account that the applicant is a practising lawyer and another co-accused person has been acquitted since the witnesses have not supported the prosecution case.

In the conspectus of the above discussion, the application stands disposed of.