Allahabad High Court
Dharm Pal Singh vs State Of Up And Another on 24 March, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2025:AHC:42727 Court No. - 81 Case :- MATTERS UNDER ARTICLE 227 No. - 7777 of 2024 Petitioner :- Dharm Pal Singh Respondent :- State of U.P. and Another Counsel for Petitioner :- Dr. Kamlesh Kumar,Rakesh Kumar Counsel for Respondent :- G.A. Hon'ble Ms. Nand Prabha Shukla,J.
Heard Dr. Kamlesh Kumar, learned counsel for the petitioner, Sri Shashi Bhushan Rai, learned counsel for the respondent No. 2, Sri Ratan Singh, learned A.G.A.-I for the State and perused the record.
By means of the present petition under Article 227 of the Constitution of India, the petitioner has prayed to set aside the impugned order dated 13.03.2024 passed by learned Additional District and Sessions Judge, Court No. 1, Amroha in Criminal Revision No. 65 of 2023 (Sanjeev Vs. State of U.P. and another) and order dated 05.01.2023 passed by learned Additional Civil Judge (S.D.)/Additional Chief Judicial Magistrate, First, Amroha in Case No. 2319 of 2019 arising out of Case Crime No. 453 of 2017 (State Vs. Sanjeev) under Sections 304, 323, 325 IPC, Police Station-Amroha Dehat, District-Amroha.
Briefly stated, the petitioner, Dharm Pal Singh, who is the first informant, lodged an FIR on 15.12.2017 against respondent No. 2 Sanjeev bearing Case Crime No. 453 of 2017 under Sections 279, 304A IPC, P.S.-Amroha Dehat District-Jyotibhaphule Nagar alleging that on 29.11.2017 the respondent No. 2 Sanjeev came to his house and around 6:00 pm took away his son Kapil along with him on his motorcycle to attend a party. On the same night at 9:30 pm respondent No. 2 called the petitioner and informed that Kapil had received injuries and was admitted at Doctor Garg Hospital. The petitioner with his wife Rajwati and his son Sanjeev Kumar went to the hospital and found his son lying soaked in blood. The respondent No. 2 Sanjeev was present at the hospital. Thereafter, Kapil was referred to the Glokul Hospital and then to Kothiwal Hospital and thereafter to Atul Jain Hospital at Moradabad where Kapil breathed his last.
The panchayatnama of the deceased was conducted on 15.12.2017 and the autopsy was conducted on 16.12.2017. The FIR was lodged on 15.12.2017 bearing Case Crime No. 453 of 2017 under Sections 279, 304A IPC, P.S.-Amroha Dehat District-Jyotibhaphule Nagar.
While its investigation was in progress, the petitioner moved an application dated 04.01.2018 under Section 156(3) Cr.P.C. before the Court of Chief Judicial Magistrate, Amroha against respondent No. 2 Sanjeev and two unknown to lodge fresh FIR under Section 302 IPC alleging the same incident. The said application was allowed on 18.01.2018 directing the Officer In-charge, Police Station-Amroha Dehat to register the case. Thus, another FIR was registered against the respondent No. 2 Sanjeev and two unknown persons on 08.02.2018 bearing Case Crime No. 27 of 2018, under Section 302 IPC, P.S.-Amroha Dehat, District-Amroha.
As the allegations in both the FIRs related to the same incident, the investigation of both the case crime numbers i.e. Case Crime No. 453 of 2017 and 27 of 2018 were clubbed together vide CD No. 13 dated 26.02.2018.
However, the Investigating Officer submitted the charge sheet in Case Crime No. 453 of 2017 under Sections 279, 304A IPC, P.S.-Amroha Dehat, District-Amroha on 01.03.2018, but due to lack of evidence under Section 302 IPC, therefore, the case crime No. 27/2018 under Section 302 IPC was merged in it.
Being aggrieved, the petitioner moved an application on 22.06.2018, under Sections 173(8) and 190(1)(b) of the Cr.P.C. before the Chief Judicial Magistrate, Amroha to further investigate the Case Crime No. 27 of 2018 under Section 302 IPC.
The learned Magistrate after considering the entire material on record allowed the application on 08.05.2019 directing to further investigate the matter. The Investigating Officer after completion of the further investigation had submitted final report on 18.11.2019.
Again, the petitioner being dissatisfied, filed an application dated 02.04.2022 against the said Final Report before First Additional Chief Judicial Magistrate, Amroha to pass appropriate order on the basis of material available on record.
The learned Additional Civil Judge, (S.D.)/Additional Chief Judicial Magistrate-I, Amroha vide his order dated 05.01.2023 rejected the final report dated 18.11.2019 and took cognizance under Sections 304, 323, 325 IPC summoning the respondent No. 2 to face the trial instead of Section 302 IPC.
Now, the respondent No. 2 being aggrieved by order dated 05.01.2023 filed a Criminal Revision bearing No. 65 of 2023 Sanjeev Vs. State of U.P. and another before the Court of Additional District and Sessions Judge, Court No. 1, Amroha which was allowed vide the impugned order dated 13.03.2024.
Hence, the petitioner/first informant has challenged the orders dated 05.01.2023 and 13.03.2024 under Article 227 of the Constitution of India.
The main submission of learned counsel for the petitioner is that the learned Trial Court has not considered the gravity of the offence and the allegations levelled against the respondent No. 2 and has passed the impugned orders dated 05.01.2023 and 13.03.2024 in a mechanical and cursory manner and did not take cognizance under Section 302 IPC.
Per contra, learned counsel for respondent No. 2 has refuted the aforesaid contention on the ground that the proceedings initiated against the respondent No. 2 is barred by the doctrine of Double Jeopardy, hence, respondent No. 2 cannot be prosecuted twice for the same offence.
Upon hearing learned counsel for the parties and from the perusal of record, it transpires that the petitioner is the first informant who lost his son Kapil, who was a pillion driver on a motorcycle driven by the respondent No. 2 Sanjeev. According to the post mortem report, the cause of death was Coma due to accidental injury. The FIR was registered against the respondent No. 2 under Sections 279 and 304A IPC on 15.12.2017. During the pendency of the investigation in the said FIR, the petitioner/informant gave an application under Section 156(3) Cr.P.C. on 04.01.2018 to lodge another FIR under Section 302 IPC for the same incident. The said application was allowed and another FIR was registered against the respondent No. 2 bearing Case Crime No.27 of 2018, under Section 302 IPC, P.S.-Amroha Dehat District-Jyotibhaphule Nagar. As both the FIRs related to the same incident, therefore, their investigation were clubbed together and the charge sheet was filed only in Case Crime No. 453 of 2017 under Sections 279 and 304A IPC and as no material was found of committing murder, therefore, the investigation in Case Crime No. 27 of 2018 was merged in Case Crime No. 453 of 2017. At the belated stage, the petitioner moved an application seeking further investigation under Sections 173(8) and 190(1)(b) in Case Crime No. 27 of 2018 under Section 302 IPC which was allowed and the Investigating Officer was directed to further investigate the matter. After the further investigation in Case Crime No. 27 of 2018, it resulted in submission of a final report. Aggrieved by the final report, the petitioner again moved an application for the passing of the appropriate order in which the learned Additional Civil Judge Senior Division/Chief Judicial Magistrate, Amroha rejected the final report, taking cognizance under Sections 304, 323, 325 IPC instead of Section 302 IPC and summoned the respondent No. 2 to face the trial. The petitioner, being aggrieved by the said summoning order preferred a criminal revision which was allowed vide order dated 13.03.2024 and the summoning order dated 05.01.2023 was set aside.
After going through the entire facts and circumstances, it transpires that both the FIRs relate to the same incident which took place on 29.11.2017. As the respondent No. 2 was prosecuted for the same incident in two separate FIRs, therefore, the investigation of both the FIRs were clubbed together but ultimately the chargesheet was submitted in Case Crime No. 453 of 2017 under Sections 279, 304A IPC. Subsequently, on the basis of an application moved by the petitioner and looking to the gravity of the offence, cognizance was taken under Sections 304, 323 and 325 IPC instead of Sections 279 and 304A IPC.
From the perusal of the impugned order dated 13.03.2024, it is evident that the revision filed by the respondent No. 2 was allowed on the ground that the revisionist was prosecuted twice for the same offence which is barred by the doctrine of Double Jeopardy.
At this juncture, it is necessary to refer Article 20(2) of the Constitution of India which speaks on the doctrine of Double Jeopardy. The Article reads as under:
“No person shall be prosecuted and punished for the same offence more than once.”
On a plain reading of Sub Clause (2) of Article 20 of the Constitution of India, it is clear that the said provision bars the second prosecution only when the accused has been both prosecuted and punished for the same offence previously. But this clause does not bar subsequent trial if the ingredients of the offences in the previous and subsequent trials are distinct.
Recently, the Hon’ble Supreme Court in TP Gopalakrishnan vs. State of Kerala (2022) 14 SCC 323 Para 29 has held that “There are three conditions for the application of the clause. Firstly, there must have been previous proceeding before a court of law or a judicial tribunal of competent jurisdiction in which the person must have been prosecuted. The said prosecution must be valid and not null and void or abortive. Secondly, the conviction or acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and same set of facts, for which he was prosecuted and punished in the first proceeding. Thirdly, the subsequent proceeding must be a fresh proceeding, where he is, for the second time, sought to be prosecuted and punished for the same offence and same set of facts. In other words, the clause has no application when the subsequent proceeding is a mere continuation of the previous proceeding, for example, where an appeal arises out of such acquittal or conviction. In order to sustain a plea of double jeopardy, it must be shown that all the aforesaid conditions of this clause are satisfied.”
While applying the aforesaid doctrine in the instant matter, it can be fairly stated that the plea of Double Jeopardy as relied by learned counsel for the respondent No. 2 has no application, because the respondent No. 2 Sanjeev was neither convicted nor acquitted in any matter previously having the same set of facts. Therefore, the order passed by the revisional court has been decided on incorrect application of law.
After analysing the matter, it can be concluded that the investigation in both the FIRs were clubbed together and chargesheet was submitted under Sections 279 and 304A IPC but subsequently looking to the gravity of the offence, cognizance was taken by the learned Additional Chief Judicial Magistrate-I/ACJM-I, Amroha on 05.01.2023 under Sections 304, 323, 325 IPC setting aside the final report submitted in Case Crime No. 27 of 2018 dated 18.11.2019.
The learned court below in Case Crime No. 253 of 2017 instead of taking cognizance under Sections 279, 304A IPC has taken cognizance under Sections 304, 323, 325 IPC instead of Section 302 IPC which is well in accordance with law and is not barred by the doctrine of Double Jeopardy.
Accordingly, the order dated 13.03.2024 passed by learned Additional District and Sessions Judge, Court No. 1, Amroha, is hereby set aside as it is not barred by Article 20(2) of the Constitution of India, the doctrine of Double Jeopardy. The order dated 05.01.2023 does not require any interference. The trial Court is directed to proceed against respondent No. 2 in accordance with law.
The petition is, partly allowed.
Order Date :- 24.03.2025
Shivani
[ad_1]
Source link