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2004 DIGILAW 353 (HP)

ASHA KUMARI v. STATE OF H. P.

2004-12-27

V.K.GUPTA

body2004
JUDGMENT V.K. Gupta, C.J. (Oral): The criminal case from out of which this petition has arisen is pending in the court of learned Special Judge, Chamba and is at the stage of framing of the charge. Whether the charge has to be framed or it has not to be framed is in the domain of the learned Trial Judge. The thrust of the arguments advanced by Mr. Cheema, learned Senior Counsel appearing for the petitioner and the thrust of most of his submissions made in the course of hearing of this petition revolved around his basic premise that the charge against the petitioner should not be framed because the material on record clearly suggest that the petitioner has not committed any offence. In the course of his arguments Mr. Cheema also referred to a judgment passed by a Division Bench of this court on 26.7.1996 in CWP 1732/95 in an attempt to buttress his argument that the charge against the petitioner did not deserve to be framed. Mr. cheema submits that in the face of the aforesaid judicial pronouncement by this court there is no warrant for framing of charge against the petitioner. (Whether this judgment would be applicable at all to the criminal case in hand is an issue which is not for me to decide. The learned trial Court alone has the jurisdiction to decide about the applicability of this judgment.) 2. The aforesaid observations in the opening part of this judgment have been made by me only to high light the non-maintainability of this petition. 3. The petitioner has come up to this Court in this petition challenging an order passed by the learned Special Judge on 4.12.2004 whereby he dismissed the application filed by the prosecution under Section 173(8) of the Code of Criminal Procedure for permission to re-investigate the case. I am clearly of the opinion that an accused person facing a trial either before the state of the framing of the charge, or at a stage thereafter, cannot maintain a petition challenging or assailing an order passed by the trial Court dismissing the States application filed for reinvestigation under Section 173(8) of the Code of Criminal Procedure. I am clearly of the opinion that an accused person facing a trial either before the state of the framing of the charge, or at a stage thereafter, cannot maintain a petition challenging or assailing an order passed by the trial Court dismissing the States application filed for reinvestigation under Section 173(8) of the Code of Criminal Procedure. If the trial Court dismisses the States application for reinvestigation (as has been done presently), the aggrieved party (if at all) is the State or such other person covered by sub-section (8) of Section 173 who would have filed the application. The accused cannot consider herself to be an aggrieved party qua such an order. Admittedly, the application for reinvestigation was not filed by the petitioner nor was it filed at her instance. It is not open to the accused to urge that the re-investigation application filed by the prosecution was for her benefit nor is the accused entitled to urge that in the ultimate analysis the result of reinvestigation would or might have been to her advantage. If, for reasons assigned in the application, the State as a prosecuting agency thought that it needed to re-investigate the case, necessarily it did not mean that such re-investigation would result in any benefit or advantage to the accused. That is the settled legal position in criminal jurisprudence. 4. Mr. Cheema then submitted that by dismissing the States application, the trial Court was in effect and substance reviewing earlier orders passed by it and he specifically referred to an order dated 3.11.2004 passed by the trial Court which is reproduced hereunder for ready reference. It reads thus: "Let order dated 9.8.2004 be complied with and the stand taken by the State as ordered on 7.2.2004 be clarified in writing. Be put up on 4.12.2004. 5. The aforesaid order makes a reference to two earlier orders dated 7.2.2004 and 9.8.2004. For ready reference, both the aforesaid orders may be taken note of. The relevant part of the order dated 7.2.2004 reads thus: "........The main allegations against accused Shri Brijendera Singh are that he, in connivance with revenue official and others, had got mutated the land of the State of Himachal Pradesh in his favour by adopting fraudulent means. For ready reference, both the aforesaid orders may be taken note of. The relevant part of the order dated 7.2.2004 reads thus: "........The main allegations against accused Shri Brijendera Singh are that he, in connivance with revenue official and others, had got mutated the land of the State of Himachal Pradesh in his favour by adopting fraudulent means. However, from the documents filed by the accused persons under Section 239 Cr.P.C, it appears that a Civil Suit bearing No. 42/97, wherein these very transactions have been challenged by ptaintiff-Rakesh Pathania, etc. The State of Himachal Pradesh by virtue of its written statement, had taken the plea that all these revenue transactions were conducted lawfully and no such fraud has been committed, nor the revenue officials have connived with said Brijendera Singh. The Civil Suit is still pending with the Sub Judge, Dalhousie. Similarly, in Civil Writ Petition bearing number 1732/95, the State of Himachal Pradesh and the Collector, Chamba, had taken the plea that all these revenue transactions were affected lawfully and subsequently mutation in favour of Brijendera Singh were also lawful. From the aforesaid, it is clear that the State has taken two contradictory stands, one in this criminal case and the other in the said Civil Suit and the Writ Petition. Therefore, the Id. Public Prosecutor is directed to clarify the stand of the State. So put up on 15th March, 2004, as prayed by the Ld. Public Prosecutor." Order dated 9.8.2004 reads thus: "Today, this case is fixed for consideration of the application moved under Section 173(8) Cr.P.C. for re-investigation of the case. The perusal of the order dated 7.2.2004 makes it clear that this court issued the direction to the State to the effect that since two contradictory stands have been taken, as such, the State was asked to clarify the stand taken by it, but till date, no such clarification has been furnished, but instead moved the present application under Section 173(8) Cr.P.C. therefore, it is order that firstly the order dated 7.2.2004 be complied with by the State, thereafter the application in hand moved under Section 173(8) Cr.P.C. for re-investigation of the case shall be considered. To come up on 25.9.2004." 6. Mr. To come up on 25.9.2004." 6. Mr. Cheemas contention is that once the trial Court asked the State Government/prosecution to clarify its stand vis-a-vis its aforesaid contradictory versions, dismissing States application filed under Section 173(8) of the Code amounts to reviewing its aforesaid three earlier orders. Mr. Cheema submits that once having called upon the State to clarify its stand in writing, not following that to its end, would amount to (on the part of the learned trial Judge) reviewing its earlier orders. I cannot persuade myself to agree to Mr. Cheemas submission for two reasons; firstly, the learned trial Court did not pass. I any order as such. Merely asking the State/Prosecution to clarify its position vis-a-vis some alleged or stated conflicting versions does not if amount to passing any order (and hence there cannot be any occasion or any question of reviewing an earlier order) and secondly, in any case the learned trial Court knew fully well that whatever may be the basis of any version of any party in Civil proceedings, it could not bind the trial Court in a prosecution launched by the State. After all, the State in the facts and circumstances of this case, can be said to have a dual and split personality. If it did put up some version before a Civil Court in its capacity as a defendant or an opposite party, it cannot be bound by that version in a prosecution because prosecution and the Civil Suit and/or other civil proceedings stand on different footings and are guided by different parameters. I, therefore, feel convinced that the passing of the impugned order by the trial Court does not amount to any review of any earlier order and in any case a very careful perusal of aforesaid three orders dated 3.11.2004, 7.2.2004 and 9.8.2004 does not amount, on the part of the learned trial Court, to either expression of any opinion by the trial Court, much less returning any finding or passing any definite order, or reviewing its earlier (any) position vis-avis issues involved in the trial Court. 7. I once again reiterate that basically in this petition what the petitioner wants this court to do is to set aside the impugned order dated 4.12.2004 passed by the learned trial Court dismissing the States application filed under Section 173(8) of the Code. 7. I once again reiterate that basically in this petition what the petitioner wants this court to do is to set aside the impugned order dated 4.12.2004 passed by the learned trial Court dismissing the States application filed under Section 173(8) of the Code. In my considered opinion I do not feel convinced that the accused can be stated to be in any way aggrieved by the passing of this order or can be said to be prejudicially and adversely affected thereby. Since at the very outset I have observed that the case is at the stage of framing of the charge, I do wish to observe that the petitioner-accused is at an - absolute liberty to urge all the points before the learned trial Court and to bring to the trial Courts notice all the facts, (if it has not already done so) thereby in effect pleading that she is entitled to be discharged and that the facts and circumstances of the case do warrant her not being charged. It goes without saying that the learned trial Judge shall afford such an opportunity to the petitioner-accused (unless that stage is already over) and taking into account all relevant facts and circumstances of the case, to proceed with the trial. The law is well settled with respect to the exercise of jurisdiction by a criminal Court about the framing of the charge and undoubtedly the learned Special Judge, Chamba shall apply such law to the facts of the present case and do the needful. 8. Since I am dismissing this petition only on the ground of its maintainability at the instance of the petitioner-accused, I have refrained from commenting upon the merits of the impugned order qua the States request for re-investigation. I have not gone into any aspect of the matter relating to the merits of the impugned order. The learned trial Court therefore while exercising its jurisdiction about the framing of the charge shall not in any manner be influenced by-this judgment and this judgment, therefore, shall not be constructed by him as any expression of opinion by this court about the merits of the prosecution case in the trial court, viz. whether to frame charge against the accused or to discharge the accused. 9. The petition is dismissed.