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2019 DIGILAW 2636 (ALL)

Azim Qazi v. State of U. P.

2019-11-25

RAHUL CHATURVEDI

body2019
JUDGMENT : Rahul Chaturvedi, J. 1. Heard Sri V.M. Zaidi, Senior Counsel, assisted by Sri M.J. Akhtar, Advocates for applicants and learned AG A for the State, perused the records. Learned Senior Counsel at the very inception, raised certain legal aspects of the issue which touches core issue for adjudication of present 482 application and has insisted to decide the same at the admission stage itself. BACKGROUND; 2. Before coming to the merits of the case, the office report reveals certain glaring misadventure committed by the applicants. In fact this is the second 482 application, seeking same prayer, though at different stage. The applicants have unambiguously flouted directions of Coordinate Bench of this Court with vengeance and now they are invoking this equitable jurisdiction under Section 482 Cr.P.C. for this second innings. This Court has got an opportunity to compare the prayer section of both the 482 applications i.e., Crl. Misc. Application No. 30075 of 2015 and present 482 application. The only difference is that in earlier 482 application, there were four applicants including the present applicants and in the instant 482 application there are only two, out of the four applicants. 3. The prayers sought in the present 482 application is- To allow the present 482 application. (1.) Quash the charge-sheet dated 30.11.2014. (2.) Quash the entire proceeding of Criminal Case No. 1492 of 2015 (State v. Aslam Qazi and others), arising out of case crime No. of 2013 under Sections 147, 148, 149, 307, 323, 504, 506 IPC and under Section 3(2) V of SC/ST Act Police Station, Dibai District Bulandshahar. 4. This prayer is akin to the prayer sought in Criminal Misc. No. 30075 of 2015 which was disposed off with regard to. present applicants vide order dated 7.10.2015 and when this order was challenged before Hon'ble Apex Court by means of SLP (Crl) No. 10622 of 2015, the counsel for applicants has sought permission to withdraw his petition and accordingly the aforesaid SLP was dismissed. After the dismissal of S.L.P.. The applicants are under legal obligation to comply with the direction of this Court's order dated, dated 7.10.2015 but instead complying the same, the during applicants, as mentioned above, unequivocally flouted the directions of this Court with vengeance and filed present 482 application in succession, though at different stages. After the dismissal of S.L.P.. The applicants are under legal obligation to comply with the direction of this Court's order dated, dated 7.10.2015 but instead complying the same, the during applicants, as mentioned above, unequivocally flouted the directions of this Court with vengeance and filed present 482 application in succession, though at different stages. The police has submitted charge-sheet against the applicants way back on 30.11.2014 and since then they are roamings cot free throwing an open challenge to the majesty and to the rule of law purportedly on the alleged fresh grounds i.e., informant as well as injured witnessed have not supported the prosecution case in a parallel prosecution and trial of co-accused of Aslam Qazi in ST No. 1670 of 2016 (State v. Aslam Qazi) which was resulted into his (Aslam Qazi's) acquittal vide judgment and order date 13.8.2019. Thus, a primary and only plank for assailing the entire proceeding of the case No. 1492 of 2015 is that when the first informant as well as the injured witnesses of the incident have disowned the entire case in their respective depositions/testimonies before learned Trial Court in ST No. 1670 of 2017 and the learned Trial Court has recorded acquittal order of the co-accused-Aslam Qazi, therefore the applicants are now claiming that testimonies of the witnesses and the judgement of acquittal and, its benefit may also be extended to the applicants and pending proceedings should be dropped (Para Nos. 23 and 25 of the petition). In fact the "Principle of Stare Deices" has been agitated by the applicants to adjudicate the present case. Facts of the case: 5. Before addressing the merits of the case, it is imperative to spell out the skelton facts of the case which would be helpful in adjudication of the present case. 6. 23 and 25 of the petition). In fact the "Principle of Stare Deices" has been agitated by the applicants to adjudicate the present case. Facts of the case: 5. Before addressing the merits of the case, it is imperative to spell out the skelton facts of the case which would be helpful in adjudication of the present case. 6. The Opposite Party No. 2 lodged an FIR on 4.7.2013 at 12:30 pm for the incident, said to have taken place on 2.7.2013 at 5:30 pm, which was registered as Case Crime No. 229 of 2013 under Section 147, 148, 149, 307, 323, 304, 306 IPC and under Section 3(2) V Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against (i) Ibrahim son of Abdul Salam (ii) Abdul Rahim son of Abdul Salam (iii) Aslam Qazi son of Abdullah Qazi (iv) Azim Qazi son of Abdullah Qazi (v) Shamim Qazi son of Abdullah Qazi with the allegation that all the assailants armed with lathi-danda and country made pistol raided the premises of opposite party No. 2 and assaulted upon informant's son. In this process, Ibrahim Qazi and Abdul Rahman attributed the role of exhortation, whereas rest of the accused persons have brutally assaulted, causing injuries to Trilok Raj and Man Singh. This incident took place on account of alleged transaction of certain landed property between them. Both the injured persons were medically examined on the same day i.e., 2.7.2013 and their injury reports are annexed as Annexure 2 to the petition. 7. Since the matter relates to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Circle Officer, Dibai has conducted threadbare investigation and submitted report under Section 173(2) Cr.P.C. against all the accused persons but the police submitted charge-sheet against Azim Qazi and Shamim Qazi in the column of "absconder". 8. After submission of charge-sheet, the learned Magistrate 1.8.2015 took cognizance of the offence and issued processes against all the accused persons. 9. 8. After submission of charge-sheet, the learned Magistrate 1.8.2015 took cognizance of the offence and issued processes against all the accused persons. 9. Instead surrendering before the Court (1) Qazi Ibrahim@ Ibrahim (2) Qazi Abdul Rahman (3) Azim Qazi (A-1) and Shamim Qazi (A-2) approached this Court by means of 482 application No. 30075 of 2015 whereby the coordinate bench of this Court vide order dated 7.10.2015 though protected the interest of Qazi Ibrahim and Qazi Abdul Rahman by issuing notices to opposite party No. 2 but this Court declined to grant any relief to present applicants and directed that they will have to surrender before the Court concern within three weeks from the date of passing of this order. 10. Instead surrendering and complying with the directions of the Court, the applicants preferred a SLP (Crl) No. 10622 of 2015 but it seems that after certain arguments the counsel for applicants thought it proper to withdraw the aforesaid SLP and accordingly on 4.1.2016 the aforesaid SLP was dismissed accordingly. This is most astonishing feature of the case that the applicants have tried their level best to conceal this fact from this Court in their present petition. The SLP was dismissed in the month of January, 2016 and in all fairness the applicants ought to have apprise this Court by annexing the orders in the present petition filed in the year 2019 but for the reasons best known to them the applicants have put the cards in their sleeves with purpose, so that, this Court should not gather adverse inference against them. This Court is of the considered opinion that the applicants have tried their level best to dupe and ditch this Court and have not come with clean hands in the present petition which was filed on 30.9.2019. 11. Meanwhile the trial of arrested co-accused person-Aslam Qazi was separated and was put to trial by means of ST No. 1670 of 2016. Contentions raised by the Senior Counsel that since PW-1, PW-2, PW-3, PW-4 and PW-5 have not supported the prosecution case and as such the aforesaid trial has ended into acquittal of co-accused Aslam Qazi vide judgment and order dated 13.8.2019. Since the aforesaid judgment was never challenged and therefore aforesaid judgment of acquittal has attained the finality. Contentions raised by the Senior Counsel that since PW-1, PW-2, PW-3, PW-4 and PW-5 have not supported the prosecution case and as such the aforesaid trial has ended into acquittal of co-accused Aslam Qazi vide judgment and order dated 13.8.2019. Since the aforesaid judgment was never challenged and therefore aforesaid judgment of acquittal has attained the finality. In para No. 16 of the petition it has been mentioned that in view of the fact the applicants are also entitle to get the benefit of aforesaid statements of witnesses and the order passed by learned Trial Court in the case of (State v. Aslam Qazi) should be taken into account to establish innocence of the present applicants. This is the long and short of the entire case and has to be adjudged at this stage. 12. The star legal question involved in the present controversy is as to whether the acquittal of the co-accused would play an exclusive role in quashing the charge-sheet and entire proceedings with regard to remaining co-accused persons and the entire proceeding qua there should be quashed in exercise of powers under Section 482 Cr.P.C.? 13. First and foremost, learned Senior Counsel for the applicants has drawn the attention of the Court to Sections 40, 41, 42 and 43 of the Indian Evidence Act under the heading "judgments of the Court of justice when relevant." For the sake of brevity the text of the aforesaid provisions reads thus. Section 40 of the Evidence Act-Previous judgments relevant to bar a second suit or trial-the existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial. Section 41 of the Evidence Act-A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely is relevant when the existence of any such legal character or the title of any such person to any such thing, is relevant. Such judgment order or decree is conclusive proof - that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment (order or decree) declares it to have accrued to that person that any legal character which it takes away from any such person ceased at the time from which such judgment (order or decree) declared that it had ceased or should cease. (Order or decree) declared that it had ceased or should cease, and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment declares that it had been or should be his property. Section 42 of the Evidence Act-Relevancy and effect of judgments, order or decree, other than those mentioned in Section 41. Section 43 of the Evidence Act-Judgments orders or decree other than those mentioned in Sections 40, 41 and 42 are relevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act. Besides this, the learned Counsel for the applicants raised upon the judgment of the Hon'ble Apex Court in Arasmeta Captive Power Company Pvt. Ltd. V. Lafarge India Pvt. Ltd., AIR 2014 SC 525 , whereby the Hon'ble Apex Court while deciding the principle of Stare Deices, has opined that the "....consistency in the cornerstone of administration and justice, it is consistency which creates confidence in the system. This consistency can never be achieve without respect to the rule of finality. It is with view to achieve consistency in the judicial pronouncement, the Courts have evolved the rule of precedence principle of Stare Deices etc., and these rules and principles are based on public also." 14. Besides this, learned Senior Counsel for the applicants has cited plethora of relevant cases of Hon'ble Apex Court as well as this Court viz; The principle of Stare Deices is a legal principle by which the judges are obligated to respect the precedent established by the prior decisions. The words originated from the phrasing of the principles in Latin; Manim "Stare Deices at Court non-quieta mobere" to stand by the decision and not disturb the undisturbed. The words originated from the phrasing of the principles in Latin; Manim "Stare Deices at Court non-quieta mobere" to stand by the decision and not disturb the undisturbed. In the legal context this means the Court should abide by the precedent and not disturb the settled matters. This principle can be decided into two components (1) a decision made by superior Court or by the same Court in an earlier decision is binding precedent that the Court itself and all its inferior Courts must follow (2) the Court may overturn its own precedent but should do only if the strong reasons exists to do so and even in that case should be guided by principle from superior-lateral and inferior Courts. 15. Similarly in the case of State of Andhra Pradesh v. A.P. Jaiswal, 2001 AIR SC 499, the similar principle was underlined by the Hon'ble Apex Court. On the other hand, learned AGA has drawn attention of the Court in the judgment of Allahabad High Court Ramhit @ Hittu v. State of U.P. and others, 2011 (3) ADJ 297 (LB) while deciding the Crl. Case No. 3951 of 2010 under Section 482 Cr.P.C. whereby dealing with the identical issue the learned Single Judge has explicitly and elaborately considered the principle of Stare Deices after considering number of judgment of Hon'ble Supreme Court in this regard: Blacks Laws Dictionary defines Stare Deices as under; Para 1- Under the doctrine a deliberator or solemn decision of Court made after argument of question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same Court or in other Courts of equal or lower rank in subsequent cases where the very point is again in the controversy. Doctrine is one of the policy, grounded on theory that security and certainly require that accepted and established legal principle, under which rights may accrue, be not legally sound, but whether previous holding of Court shall be adhered to, modified, or overruled is within Court's discretion under circumstances of case before it. When point of law has been settled by decision, it forms precedent from, and, while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicated plain, obvious principles of law and remedy continued injustice. When point of law has been settled by decision, it forms precedent from, and, while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicated plain, obvious principles of law and remedy continued injustice. The doctrine is not ordinarily departed from where decision is of longstanding and rights have been acquired under it, unless consideration of public policy demand it. The doctrine is limited to actual determination in respect to litigated necessarily decided questions and is not applicable to dicta or obiter dicta. 16. The Hon'ble Apex Court has got an opportunity to analyze the applicability of above mentioned principles of Stare Deices in dispensing the criminal judicial system in number of cases. The Hon'ble Apex Court in the case of K.K. Prem Shankar v. Inspector of Police and others, (2001) JIC (SC) 206, has considered the relevancy of the judgment in the light of provisions of Section 41 to 43 of Indian Evidence Act relying upon its earlier case M.S. Shariff and others v. State of Madras and others, AIR 1954 SC 397 and gave a conclusive opinion as under. "Para 26: What emerges from the aforesaid discussion is-(1) the previous judgment which is final can be relied upon as provided under Section 40 to 43 of the Indian Evidence Act; (2) in civil Suits between the same parties, principle of res-judicata may apply: (3) in a criminal case Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted he may not be tried again for the same offence if the conditions mentioned there in satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the Civil Court would be relevant if conditions of any of the Section 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein...." 17. Similarly in yet an another case of Karon Singh v. State of M.P., AIR 1965 SC 1037 , the Hon'ble Apex Court considered the same question and has given its candid opinion in para No. 6, which reads thus: 6. "We are therefore of opinion that the judgment in Krishna Govind Patit's case, AIR 1963 SC 1413 , does not assist the appellant at all. "We are therefore of opinion that the judgment in Krishna Govind Patit's case, AIR 1963 SC 1413 , does not assist the appellant at all. On the other hand we think that the judgments earlier referred to on which the High Court relied, clearly justify the view that in spite of the acquittal of a person in one case it is open to the Court in another case to proceed on the basis - of course if the evidence warrants it - that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the later case that the person tried in it was guilty of an offence under Section 34 by virtue of having committed the offence alongwith the acquitted person. There is nothing in principle to prevent this being done. The principle of Sambasivam's case, 1950 AC 458 has no application here because the two cases we are concerned with are against two different persons though for the commission of the same offence. Furthermore, as we have already said, each case has to be decided on the evidence led in it and this irrespective of any view of the same act that might have been taken on different evidence led in another case." 18. In the case of Rajan Rai v. State of Bihar, (2006)1 SCC 191 , the import of this principle in the applicability of Criminal Courts has been explicitly detected the aforesaid principles. "The police after registering the case took up the investigation and on completion thereof has submitted charge-sheet against all the six accused persons. On the receipt where of, cognizance was taken against all of them and were called to the Court of Sessions to face the trial. As one of the accused was absconding, his trial was separated from those of other accused persons, out of which one died, after commitment of the trial, as such, the trial proceeded against remaining four accused persons and all were convicted." Against the said judgment they preferred an appeal. During the course of pendency of appeal, the other one co-accused was apprehended, put to trial and ultimately the Trial Court also convicted him. During the course of pendency of appeal, the other one co-accused was apprehended, put to trial and ultimately the Trial Court also convicted him. He also filed an appeal before High Court- The appeals preferred by other convicted 4 accused persons challenging their convictions were decided by the High Court and same were allowed and their conviction and sentences were set-aside. The appeal filed by other co-accused person was taken up later, the High Court upheld it's sentence and conviction, then he preferred SLP before Hon'ble Apex Court, to attack the impugned judgment on three grounds. The basic thrust of the argument was that High Court has acquitted the other four accused persons on merits and therefore, it is no permissible for it to uphold the conviction of appellants on the basis of same witnesses examined during the course of trial of the appellants. In considering the case, Hon'ble Apex Court has cited the provisions of 40, 41, 42, 43 and 44'of the Indian Evidence Act which are under the heading of "judgments of Courts of justice when relevant" and found that it has not been so that judgment of acquittal rendered by High Court in appeals arising out of earlier session trial could be said to be relevant under the other provisions of the Evidence Act, it was clearly "irrelevant" and could have not been taken into consideration by the High Court while passing the impugned judgment. The Hon'ble Apex Court has also considered the other judgments rendered in the trial and ultimately formulated following opinions: ".......We are clearly of the view that the judgment of the acquittal rendered in the trials of the four accused persons is wholly irrelevant in the appeal arising out of trial of the appellants Rajan Rai, as the said judgment was not admissible under the provisions of Section 40 to 44 of the Indian Evidence Act." Every case has to be considered on the evidence adduced therein. The case of four acquitted persons was ended on the basis of evidence led their, while the case of present appellant has to be decided only on the basis of evidence adduced during course of trial..." 19. Thus, from the above golden parameters led by Hon'ble Apex Court this Court cannot assume or presume that when the appellants were put to trial, PW-1, PW-2, PW-4 and PW-5 would again get hostile. Thus, from the above golden parameters led by Hon'ble Apex Court this Court cannot assume or presume that when the appellants were put to trial, PW-1, PW-2, PW-4 and PW-5 would again get hostile. The applicants named above, charge-sheeted accused in year 2014 as absconders, who have not even surrendered before the majesty of law, are invoking this equitable jurisdiction time and again, with the sole motive that though they are charge-sheeted, this Court in exercise of powers under Sections 482 Cr.P.C. taking the testimony/judgment of co-accused would drop the criminal prosecution against them. I think this is not the mandate of law, else, it would be lead a catastrophic consequences over the criminal trial which need not be explained in the heinous and serious offences. The main author of the offence masterminds of the offences or key conspirator would go scot free even without surrendering before the authority of the concerned Court and facing the trial. Submission made by counsel that testimony given by these prosecution witnesses (where they turned hostile) in Aslam Qazi's case would be taken into account, and applicant's be acquitted without facing trial?. Considering the decisions Division Bench of this Court in the case of Kumar Rinki v. State of U.P. and others, (2008) (3) JIC 267 Alld., has concluded its opinion on this point. 13. "The inference that is deducible from discussion of the above decisions that the judgment of acquittal rendered in the trial of the other co-accused is wholly irrelevant as the said judgment would not be admissible under the provisions of Section 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." 14. 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." 14. "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. In the light of the discussions made by this Court as well as the Hon'ble Supreme Court on the point in issue, this Court is of the view that the proceeding in question does not warrant interference by this Court in light of the decision rendered in the earlier trial being sessions trial No. 73/2004. Therefore, the petition is dismissed. 20. Similarly the Hon'ble Apex Court in the case Yanav Sheikh @ Gagu v. State of West Bengal, (2013) (6) SCC 428 and Dalvir Singh v. State of Haryana in Crl. Misc. No. M-4096 of 2011 decided on 9.5.2011 has also followed and reiterated the same principles of law. In view of the above discussions, it is amply clear that the judgment of acquittal of co-accused Aslam Qazi, in ST No. 1670 of 2016 decided on 13.8.2019 have no bearing in the present case in the light of provisions under Section 40 to 44 of Indian Evidence Act and the ratio laid down by Hon'ble Apex Court in this regard. The aforesaid judgment would not render any help or assistance to a person who is an absconder and has flouted the directions of the Courts in its impunity and vengeance. It is simply strange and surprisingly that the absconders are seeking parallel with that co-accused (Aslam Qazi), forced the trial and by end of the stand acquitted. The applicants who are charge-sheeted accused, is having audacity who wants to get acquitted without facing trial with the held of judgment of co-accused. It is simply strange and surprisingly that the absconders are seeking parallel with that co-accused (Aslam Qazi), forced the trial and by end of the stand acquitted. The applicants who are charge-sheeted accused, is having audacity who wants to get acquitted without facing trial with the held of judgment of co-accused. The judgment in the parties cannot be justified the invocation of doctrine of Stare Deices in the present set of circumstances. 21. Lastly, to save the applicants from the wrath of the Court, the learned Sr. Counsel for the applicants has cited a recent judgment of Hon'ble Apex Court in the case of Anil Khandelwal v. State of NCT of Delhi, AIR 2019 SC 3583 , whereby the Division Bench of Hon'ble Apex Court has opined that successive 482 applications under the changed circumstances is maintainable and dismissal of earlier 482 applications has no bar to the same. 22. This case relates to the quashing of the proceedings under Section 142 read with Section 138 N.I. Act whereby quashing of summons issued in the complaint case was dismissed. The subsequent 482 application was filed with the same prayer, which was result of second application on the ground of dismissal of first complaint of same relief. The Hon'ble Apex Court has permitted for filing the second 482 application on the changed circumstances. The Form No. 32 issued by registrar of companies under the companies act, 1956 shows the proof of resignation by the Director prior to issuance of cheques. The difference between earlier applications in as much as statutory Form No. 32 did not fall for consideration by the earlier Court. Thus, the second application cannot be said to a repeated application squarely under the same facts and circumstances. 23. I have carefully perused the judgments of Anil Khandelwal's case and I am afraid that aforesaid judgment would not come to any assistance to the applicants. In that case there was a changed circumstance with regard to applicant himself. But in the instant case from 2015 (1.8.2015) when the learned Magistrate has taken cognizance of the offence, the applicants are on run, they approach this Court and this Court vide judgment dated 7.10.2015 has granted liberty to get themselves surrender before the Court concern and seek bail. But in the instant case from 2015 (1.8.2015) when the learned Magistrate has taken cognizance of the offence, the applicants are on run, they approach this Court and this Court vide judgment dated 7.10.2015 has granted liberty to get themselves surrender before the Court concern and seek bail. Thereafter they approached the Hon'ble Apex Court by means of SLP No. 10622 of 2015 which was dismissed as withdrawn on 4.1.2016 and thus, in all fairness they ought to have abided by the order of Court while surrendering but the stubborn applicants in utter disregard to this Court's order did not surrender and waited for the acquittal of co-accused Aslam Qazi and now in the garb of changed circumstances they are again knocking the doors of this Court for challenging the charge-sheet and entire proceedings including non-bailable-warrants. This Court is of the considered opinion that there is no change in the circumstance qua the applicants. There is only change in the stage of trial and present is second 482 application with same prayer deserves to be rejected. The Court concern is directed to take all the possible coercive steps to ensure the presence of applicants within a month from the production of certified copy of the order. 24. The office the directed to remit the copy of this order to the Court concern within a week by a fastest mode of services. The above 482 applicants falls flat and accordingly dismissed.