- (1.) This criminal writ petition under Article 226 of the Constitution of India has been filed for quashing the FIR registered as Bishtupur P. S. Case No. 102/07 corresponding to G. R. No. 772/07 for offences under Sections 25(1-B)(a)/26 of the Arms Act (hereinafter referred to as the 'second case') and corresponding criminal proceeding in connection therewith, on the ground that the same is barred under Section 300(1) Cr. P. C. Counsel for the petitioner submitted that in the FIR being Dalbhum (Kadma) RS. Case No. 33/2007 dated 6.4.2007 was registered on 6.4.2007 under Sections 302/376/394/34 of the Indian Penal Code (hereinafter referred to as the first case). There was allegation against the petitioner inter alia that on the threat to kill by firearm, rape and murder by strangulation, was committed. The petitioner has been convicted in the said case and the matter is pending in appeal before this Court, in which the petitioner has been enlarged on bail. But petitioner is being tried in Bishtupur P. S. Case No. 102/07 registered on 7.4.2007 under Arms Act (hereinafter referred as the second case) for the same offence. He also referred to the confessional statement of the petitioner to show that firearm was recovered in connection with the first case. He relied on the judgment of Supreme Court in the case of Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao, 2011 2 SCC 703, and the judgment of Madras High Court, in the case of Natarajan vs. The State, 1991 CrLJ 2329. On being asked, learned counsel for the petitioner admitted that the trial of the second case is at the fag end.
(2.) On the other hand, counsel for the State, submitted that neither Section 300(1) Cr. RC. is applicable in this case nor the said judgments relied on behalf of the petitioner. He further submitted that after the first case was lodged with the said allegations, the house of the petitioner was raided in connection therewith. The petitioner was apprehended alongwith illegal firearm and therefore the second case was instituted. Had no firearm been recovered, there was no occasion to institute the second case. He also submitted that petitioner has filed this writ petition, after about 41/2 years of institution of the second case, when admittedly the trial is at the fag end. He also submitted that this writ petition is an abuse of the process of the court.
(3.) After hearing the parties, at length and perusing the records, I find no merit in this case. The first case was lodged on 6.4.2007 alleging commission of offences under Sections 376/302/394/34 of IPC. It was also alleged that the petitioner and the other accused threatened the victim/informant party, with firearm/dagger. During the course of investigation of the first case, the house of the petitioner was raided and it is alleged that illegal firearm was recovered from his possession. Accordingly, the second case was lodged on the next day i. e. 7.4.2007, against the petitioner for possessing illegal firearm. Petitioner was tried and convicted in the first case, for committing offences under Sections 302/34, 376 and 392/411 of IPC, and he was not tried for the offences alleged in the second case, registered under the Arms Act. The offences alleged in both the cases are different. The second case is not on the same facts on which the first case was lodged. Only because, during investigation of the first case, the second case was lodged (on the recovery of illegal firearm), it cannot be accepted that the second case is hit by Section 300(1) Cr. P. C. Please see paragraph 2 of Mohinder Singh vs. State of Punjab, 1998 7 SCC 390. It may be noted that the petitioner challenged the order framing charge in the second case on other grounds but withdrew that case, being Cr. M. P. No. 529 of 2008, on 30.4.2010, saying that he has been convicted. The confession of the petitioner cannot be looked into for the purpose of deciding this case. The judgments relied by the petitioner are not applicable in this case. In the case of Kolla Veera Raghav Rao after the appellant in that case was convicted under Section 138 of the Negotiable Instruments Act, on the same facts, another case was instituted under Section 420 of the IPC. Similarly, the facts of the case of Natarajan are also absolutely different. On this, counsel for the petitioner submitted that he is relying on the observations made in the said cases and not on the facts thereof. It is settled position that the judgments are not to be read as statutes and they are to be read in the setting of the facts and circumstances obtaining in the particular case. Please see State of M. P. vs. Narmada Bachao Andolan, 2011 7 SCC 639 (para 64). Moreover, admittedly the trial is at the fag end. In my opinion, the petitioner has tried to abuse the process of law by filing this writ petition. In the result, this writ petition is dismissed. However, no costs.;