Shambhu Prasad @ Shambhu Ram vs The State of Bihar

The instant petition has been filed for quashing order

dated 18.2.2014, passed by the learned Sessions Judge, Munger in

Cr. Revision No. 287 of 2013, by which he has affirmed order

dated 24.9.2013, passed by the Judicial Magistrate, 1 st Class,

Munger dismissing petitioner?s discharge petition in Complaint

Case No. 824C/2005.

The aforesaid complaint has been filed by one Gita

Devi, wife of the petitioner stating that she was married to him on

12.5.1999 following the Hindu Rites and Customs whereafter she

started living at her in-laws? house at Garhara. At the time of

marriage her father had given some articles to the petitioner and his

parents. She alleges that after sometime the accused persons

including the petitioner started torturing her on non-fulfillment of

dowry. The instant complainant filed a complaint case which gave

rise to lodging of the FIR/GR Case no. 1129 of 2002 in the court of

the Sub Divisional Judicial Magistrate, Munger. By practicing

fraud, the petitioner along with other accused persons allured the

father of the complainant to arrive at a compromise in the said GR

case. It is the further case of the complainant that for some time,

things were normal as her father was trying to arrange a job of

"Khalasi" in the Railways for Accused no.1 (husband). After some

time, when his job became permanent and when the complainant

could not bear a child, all the accused persons started subjecting her

to torture for fetching dowry. On 21.8.2004, attempts of the father

of the complainant to pacify the situation prevailing at Garhara

went futile, and he took her to his house at Jamalpur. The

complainant has alleged that in the changed situation when her

father went to the office of Accused no. 1 (the petitioner), he learnt

that in his service record he had entered a different name in the

column of wife i.e., Jailata Devi, which is the nick name of the

complainant as also the name of sister-in-law (Bhabhi) of the

petitioner (the accused). He also learnt that the petitioner has

entered the names Sunil Kumar, Kamla Kumari and Radhika

Kumari as his son and daughters, whereas they are his nephew and

niece. When the father of the complainant came to know of the said

fraud played by the petitioner (the husband) he objected on which

Accused no.1 along with his father came to her "Maika" and

abused and assaulted the complainant as well as her father. These

events led to lodging of the complaint Case No. 824C of 2005. In

the said complaint, cognizance was taken and it is in this case that

the petitioner had moved for discharge.

Since the proceedings arising out of the complaint case,

GR Case No.1129 of 2002 culminated into compromise and the

proceedings had been closed, the petitioner has assailed the

initiation of the criminal proceeding by filing second complaint,

i.e., Complaint case No. 824C/2005 in respect of the same offence

by filing a petition for discharge under section 245 Cr.P.C. before

the learned Judicial Magistrate, 1st class, Munger. The petitioner

has relied upon Section 300 Cr.P.C and prayed for discharge on the

ground that he could not have been prosecuted twice for the same

offence. He had also submitted that the allegations are false since it

was not possible for him to cause any alleged occurrence on

10.11.2003 or thereafter as 10.11.2003 was the date of compromise

in the earlier criminal case. He had also submitted that since it was

the admitted case of the complainant in the Maintenance case filed

by her that he was on running duty, so it was not possible to cause

any occurrence at the alleged place of occurrence i.e, Garhara, at

Begusarai

Vide order dated 24.9.2013 the court after hearing the

parties observed that 3 before charge witnesses have been produced

by the prosecution including the complainant and that all have

supported the case. Considering it inappropriate to go into the

details of the case at that stage and in view of the fact that there was

sufficient evidence on the record which, if unrebutted, would

warrant the conviction of the accused, the petition filed under

section 245 Cr.P.C. by the petitioner, was dismissed and the

direction was issued to the accused (petitioner) to appear

physically. The petitioner preferred a revision before the court of

the Sessions Judge, Munger vide Cr.Rev.No.287 of 2013 against

order dated 24.9.2013. Said revision application was dismissed vide

order dated 18.2.2014 on the ground that the said order was purely

interlocutory order which could not be looked into in revision.

Learned counsel for the petitioner submits that in fact

he is a victim as he is a deserted husband. He also submits that his

wife/complainant Gita Devi passed away on 10.5.2012 and

subsequent upon her death his father-in-law, who is a greedy

person, is pursuing the case in the court below on extraneous

consideration so as to extract money from him. He also submits

that since Gita Devi is no more, the allegation of torture levelled by

her against him, cannot be proved as she is not alive to bring home

the charges. He also submits that whatsoever may be deposed by

her father, would at best be termed as the secondary evidence and

on that basis the prosecution case cannot be proved against him.

Counsel for the petitioner submits that the instant

proceedings are therefore in violation of the provisions contained in

section 300 of the Cr.P.C. and are vexatious and cannot be proved

against the petitioner in the trial.

To buttress his submissions in support of Section 300

Cr.P.C., the counsel for the petitioner has relied on two judgments

of the Apex Court. He has relied upon the case of State of Andhra

Pradesh v. Kokkligada reported in AIR 1970 SC. 771. It would

be apt to re-produce a part of paragraph 12 of the said judgment:-

"The rule of issue estoppel prevents relitigation of the issue which has been determined in a criminal trial between the State and the accused. If in respect of an offence arising out of transaction a trial has taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel.".

In the instant case, allegations made in Complaint

Case No. 824C of 2005 constitute a distinct offence allegedly

subsequent to the recording of acquittal in GR case no.

113 of 2005 arising out of the earlier complaint filed by opposite

party no.2.

The other judgment relied upon by the counsel for

the petitioner is Mukhtiar Ahmed Ansari v. State (NCT of Delhi )

reported in (2005) 5 SCC 258. Both the said two cases which have

been relied upon by the counsel for the petitioner are misplaced.

Neither ?issue stopple" nor "Autre fois Acquit" would apply in the

instant case.

From perusal of the complaint itself it is quite

apparent that the same has been lodged in respect of offences

committed by the accused persons including the petitioner

subsequent to the acquittal having been recorded in the earlier case.

The allegations pertain to a period subsequent to the acquittal

recorded on the basis of compromise in the earlier case arising out

of Complaint Case which gave rise to lodging of the FIR/G.R. Case

No. 1129 of 2002. The allegations in the subsequent complaint i.e.

Complaint Case No. 824C of 2005 constitute a distinct offence and

the order of acquittal recorded on the basis of compromise in the

earlier case on different accusations cannot give the accused

(petitioner) the benefit of Section 300 Cr.P.C. Insofar as the factual

denial of the allegations by placing reliance on some averments

made in the maintenance case filed by the wife, this Court would

only observe that it is trite law that while exercising jurisdiction

under Section 482 Cr.P.C., the factual denial cannot be looked into.

Whether the petitioner after entering into compromise and after

closing the earlier criminal proceedings arising out of G.R. No. 229

of 2002 had again committed fresh/new offence against the

complainant, or not is an issue which can only be appropriately

looked at the trial. The factual denials cannot be made the basis for

exercising the jurisdiction under Section 482 Cr.P.C to quash the

criminal proceedings, arising out of accusations which are in

relation to offences committed subsequent to the petitioner?s

acquittal based on compromise.

Counsel for the petitioner has also informed the

Court that the complainant/wife has passed away on 10.05.2012.

He has informed the Court that since the complainant is no longer

alive to support the allegations in the trial, this Court should

exercise inherent jurisdiction to quash the proceedings. He also

informed the Court that the father of the original complainant-Gita

Devi has been allowed to proceed with the case in the Court below.

He has submitted that there is no other eye-witness to support the

allegation except the complainant. These submissions again are in

respect of the sufficiency/insufficiency of evidence, which may be

examined at trial, and this Court exercising jurisdiction under

Section 482 Cr.P.C., must refrain from going into.

The application is, accordingly, dismissed. The

factual denial and the submissions regarding insufficiency of

evidence are matters which may be left for the trial court to

examine on basis of such submissions without being prejudiced by

the dismissal of this case.