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2002 DIGILAW 801 (MP)

Laxmichand v. State of M. P.

2002-08-26

N.S.AZAD

body2002
JUDGMENT The petitioner seeks quashment of orders of rejection of withdrawal application, passed by JMFC so also the revisional Court in addition to quashment of proceeding of Criminal Case No. 1424/98 (State v. Laxmichand and Others) pending in the Court of JMFC, Katni, against these petitioners for offences punishable u/ss 147/323/34,294 and 506(1) of the IPC. This is not being disputed that on a written application dated 18.2.1980 submitted by Ajay Kumar Jain to the Station House Officer, police station Katni, Crime No. 304/80 was registered for offences punishable u/ss 147, 148, 294, 506 and 323/34 of the IPC against these petitioners and late Shri Roopchand Jain, on 17.4.1980. It is also not in dispute that a police report u/s 173 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') was filed in respect of aforesaid crime in the month of March, 1980, which stood registered in the Court of JMFC as Criminal Case No. 1424/98. It is further an admitted fact that particulars of aforesaid offences were explained to the petitioners on 12.3.1999 by JMFC, Katni, who pleaded not guilty. The photocopy of particulars of offence is marked as document No.1: Thereafter, the case was fixed for recording prosecution evidence on 15.7.1999, but till 21st March, 2001, the statements of all the prosecution witnesses could not be recorded and the case is still pending at the stage of prosecution evidence. It is also the case of the petitioners that during the pendency of the case, the Public Prosecutor filed an application u/s 321 of the Code on 21.2.2000, seeking permission to withdraw the case. A copy of this application is marked as document No.2. The learned JMFC rejected the aforesaid application by order dated 11.5.2000, a certified copy of which is marked as document No.3. This order was challenged on behalf of the State Government. In Cr. Revision No. 37/96 in the Court of 1st Addl. Sessions Judge, Katni, but it also met the same fate on 8.2.2001, along with the revision filed on behalf of petitioners No.1 to 4.Certified copy of the said order dated 8.2.2001 is marked as document No.4. A counter case registered against the complainant Ajay Kumar Jain and 7 others for offences punishable u/ss 294, 341, 506B, 145 and 323 of the IPC at police station Katni, resulted in conviction on 19.11.1996. A counter case registered against the complainant Ajay Kumar Jain and 7 others for offences punishable u/ss 294, 341, 506B, 145 and 323 of the IPC at police station Katni, resulted in conviction on 19.11.1996. The certified copy of the judgment is marked as document No, 5. The certified copy of the judgment dated 23.11.1998, pronounced in Cr. Appeal No. 37/96 filed by complainant Ajay Kumar Jain and other co-accused, is marked as document No.6. The learned I Addl. Sessions Judge. acquitted complainant Ajay Kumar jain and co-accused Pyarelal, so also Sumat Rani in aforesaid judgment marked as document No.7 pronounced in Cr. Appeal No. 37/96 on 23.11.1998. It is submitted on behalf of the petitioners that keeping in view the fact of conviction of complainant party in counter case, the withdrawal application filed on behalf of Public Prosecutor ought to have been allowed and therefore, the orders of rejection passed by learned JMFC so also revisional Court, are liable to be set aside. In support of this argument, the learned counsel appearing for the petitioners has drawn the Court's attention to order dated 18.10.2000, passed by this Court in M.Cr.C. No. 6973/2000 (Rakesh Jain v. State of M.P.) (photocopy of certified copy of the said order is filed today), wherein this Court permitted the withdrawal of criminal case which was pending for a period of 7 years for offences punishable u/ss 294 and 506B of the IPC. He has further drawn the Court's attention to Sheo Nandan Paswan v. State of Bihar and Others, reported in AIR 1987 SC 877 , in this regard wherein it is explained by their Lordships of Supreme Court that: "Section.321 is virtually a step byway of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under section 321, the accountability of the concerned person or persons does not disappear. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis." It is also submitted on behalf of the petitioners that in view of the pronouncement of Supreme Court in Common Causes Registered Societies v. Union of India and Others., reported in 1996 (II) MPWN 1 = 1996 MPLJ 636, the learned JMFC should have discharged the petitioners or acquitted them, keeping in view the quantum of punishment provided for the offences, for which these petitioners are facing trial in Criminal Case No. 1424/98. Relying on cited S.G. Nain v. Union of India reported in AIR 1992 SC 603 , Mansukhlal Vithaldas Chauhan v. State of Gujarat [ AIR 1997 SC 3400 ], Bihar State Electricity Board and another v. Nand Kishore Tamakhuwala [ AIR 1986 SC 1653 ], Mahendra Lal Das v. State of Bihar, [ AIR 2001 SC 2989 ] and Raj Deo Sharma v. State of Bihar [1999 (II) MPWN 191 = AIR 1998 SC 3281 ], it is further submitted by Shri Rusia, appearing for the petitioners that since in all the aforesaid cases, Hon 'ble the Supreme Court was pleased to quash the proceedings which were pending for a period of 10 to 14 years, hence, the proceedings in Criminal Case No. 1424/98, which are pending against the petitioners, are also liable to be quashed, as the same are pending over for a period of 22 years. But it is not in dispute that the aforesaid Criminal Case No. 1424/98 is now fixed for the last witness of the prosecution so also the examination of the accused on 28.8.2002. Secondly, a careful perusal of certified copy of initial stage of police report filed in aforesaid case discloses that-in the beginning, petitioners Laxmichand, his wife Sona and their sons. Adarsh Kumar and Manoj Kumar and Roopchand Jain, son of Khoobchand Jain and Rajendra Kumar, son of Rdopchand jain, were stated to be the accused along with Vijay Kumar, son of petitioner Laxmichand, aged 23 years and Rajendra, son of petitioner Laxmichand, aged 16 years. Adarsh Kumar and Manoj Kumar and Roopchand Jain, son of Khoobchand Jain and Rajendra Kumar, son of Rdopchand jain, were stated to be the accused along with Vijay Kumar, son of petitioner Laxmichand, aged 23 years and Rajendra, son of petitioner Laxmichand, aged 16 years. Then on consideration of copies of order sheets, recorded since the initial stage to the date of hearing fixed on 16.1.1998, it is noted that the name of present petitioners Vikas, s/o petitioner Laxmichand and Rajesh, s/o present petitioner Laxmichand Jain, were wrongly stated in the police report as Vijay Kumar and Rajendra Kumar, and hence the processes which were being issued in the names of Vijay Kumar and Rajendra Kumar, were being received unserved for a period of about 18 years. This mistake could be corrected on 16th January, 1998 only when one Chaturvedi, Advocate, is noted to have drawn the Court's attention about the aforesaid mistake in writing. Since petitioner Laxmichand and Sona who are the parents of Vikas and Rajesh, so also brothers Manoj and Adarsh, did not inform the Court about aforesaid mistake for a period of 18 years, which was well within their knowledge, the cited authorities, on the point of quashment of criminal case on account of its pendency for a period of 10 to 14 years, so also the pronouncement in Common Cause Case, do not come to the rescue of the petitioners, because the aforesaid delay is attributable to the petitioners. Secondly, the petitioners themselves are responsible to keep the case pending for a period of 18 years, therefore, it would not be just and proper to permit withdrawal at the stage of conclusion of trial. Then the criminal case bearing No. 1424/98 is now fixed for recording the statement of last prosecution witness and also the examination of accused on 28.8.2002, therefore, exercise of inherent powers is not necesstated to quash the proceeding in aforesaid case, keeping in view the intentional concealment of correct names of petitioners Vikas and Rajesh by petitioners No.1, 2, 3 and 5. Thus, this petition does not merit, which is accordingly disallowed and rejected.