STATE OF RAJASTHAN Vs. PREM RAJ

JUDGEMENT

(1.) HEARD learned P. P. and Mr. S. K. Gupta, Advocate.

(2.) DURING the course of hearing of Criminal Appeal no. 32/2004 Prem Raj and others v. State of Rajasthan, Additional District and Sessions Judge Hiridaun City found himself confronted with two questions which he has referred to this Court under Section 395 (2), Cr. P. C. The questions referred when translated into English read as under :-1. Whether the judgments passed earlier in two out of three appeals filed by different sets of accused against a common judgment passed in a criminal matter on identical charges, holding the charges under Sections 148 and 149, I. P. C. not proved against the accused and, therefore, acquitting them, would be legally binding on the successor in office hearing the pending third appeal for the charges under Sections 148 and 149, i: P. C. ? 2. Whether, if in the remaining third appeal the Court convicts the accused under sections 148 and 149, I. P. C. , would it not amount to review of the earlier order on the point and whether, in that situation the court has the jurisdiction to reach an independent conclusion and pass an order accordingly?

(3.) THE background in which the controversy has arisen may be summarised thus. On the written complaint submitted by the complainant Arvind Kumar on 24-10-1994 a criminal case No. 109/2004 was registered under Sections 307, 324, 323, 147, 148 and 149, I. P. C. on the same day by the police station Shrimahaveerji, District Karauli. After investigation, a charge-sheet was filed against nine accused persons namely; rewati, Sajan, Ramesh, Rai Singh, Pradhan, hansraj, Gajraj, Ram Charan and Prem Raj under Sections 307, 326, 324, 323, 147, 148 and 149, I. P. C. in the Court of Judicial magistrate No. 1 Hindaun City. The case was then committed to the Court of Sessions under Section 209, Cr. P. C. who by order dated 4-9-2001 (Sessions Case No. 49/2000)discharged the accused from the charge under Section 307, I. P. C. and transferred the case for trial in the Court of Additional chief Judicial Magistrate, Hindaun City. Learned Additional Chief Judicial Magistrate, Hindaun City vide its judgment dated 3-9-2004 convicted all the nine accused persons under Sections 148, 323, 324/149, 325/149 and 326/149, I. P. C. and sentenced them to various terms of imprisonment and fine. Three different appeals were filed against the judgment dated 3-9-2004. The accused Rewati filed appeal No. 30/ 2004. The accused Sajan, Rai Singh, Ram charan, Ramesh and Pradhan filed appeal no. 31/2004 and the accused Prem Raj, hansraj and Gajraj filed appeal No. 32/2004 in which the present controversy has arisen. In all these three appeals, execution of sentence was suspended by a common order dated 20-9-2004. The above three appeals, which should have remained connected, were detached by the office as a result of which all the three appeals came up for hearing at different point of time. This was a serious mistake committed by the clerk concerned and was not noticed by the Presiding Officer also. The Criminal appeal No. 30/2004 was decided on 11-10-2004 and the accused Rewati was acquitted of all the charges levelled against him. The Criminal appeal No. 31/2004 was decided on 3-12-2004 and the three accused namely; Ram charan, Rai Singh and Ramesh were acquitted from all the charges levelled against them including the charges under Sections 148 and 149, I. P. C. whereas the accused Sajan was convicted under Sections 323, 324 and 325, I. P. C. and the accused Pradhan was convicted under Section 323, I. P. C. but these two accused were also acquitted from the charges under Sections 148 and 149, I. P. C. Thus, one accused in criminal appeal no. 30/2004 and five accused in criminal appeal No. 31/2004 were acquitted of the charges under Sections 148 and 149, I. P. C. It is thus clear that when the third appeal No. 32/2004 came up for hearing before the Additional District and Sessions judge, Hindaun City, six out of nine accused had already been acquitted of the charges under Sections 148 and 149, I. P. C.