Ramesh Chandra Biswas Vs. the State and anr. - Court Judgment

A.K. Dutta, J.

1. The question emerging for consideration in the instant Revisional Application by the Petitioner Under Section 482 of the Code of Criminal Procedure, 1973 is whether a police officer can be prosecuted for an alleged offence punishable Under Section 201/218, I.P.C. on the allegation that by fabricating false records/evidence he had started false cases against some offenders in a murder case by showing them arrested in those false cases, when the trial of those offenders in the alleged false and fabricated cases had ended in their conviction. The point may as well be posed somewhat differently as to whether a proceeding can be allowed to continue against a police officer on the allegation that he fabricated false records/ evidence and started false cases against some accused persons with a view to screen them in a murder case when the facts in issue in the alleged false cases had already been determined by a court of competent jurisdiction on trial ending in their conviction.

2. The aforesaid questions arise, in the facts and circumstances here-under indicated :-

3. On 19.7.92 at 20.05 hours a G.D. Entry was recorded by the petitioner, S.I. Ramesh Chandra Biswas, being G.D.E. No. 946 dated 17.7.92 recording the fact of arrest of (1) Harishankar Yadav, (2) Jogendar Yadav, (3) Sunil Yadav, and (4) Munim Yadav, Under Section 42, Cr.P.C, for commission offences punishable Under Section 290, I.P.C. The petitioner had thereupon prepared two reports for prosecution on that date, being (1) N.C.R. No. 332/ 92 against the accused Harishankar Yadav and Jogendar Yadav on the allegation that on 19.7.92 at about 18.45 hours they were creating 'hulla' near Urbashi Cinema Hall, using filthy language to the passers-by and had thereby caused annoyance and disturbance to the general public, peace and tranquility, and (2) N.C.R. No. 333/92 against the accused Sunil and Munim Yadav on the allegation that on 19.7.92 at about 19.05 hours they were creating 'hulla' near Roopnarayanpur H.C. Security Gate, causing nuisance and disturbance to the general public, peace and tranquility under influence of liquor.

4. On the same very day (19.7.92), Asansol P.S. Case No. 145/92 dated 19.7.92 Under Sections 302/120B/34, I.P.C, Sections 25/27, Arms Act, and Sections 9(b)(3) of the I.E Act was started upon a written complaint by the informant-Gopal Prosad, the added O.P. No. 2 herein, against the aforesaid four accused persons and seven others on the allegation that on that day (19.7.92) around 19.00 hours when he was returning home from a nearby market, along with his neighbours, one Lalan Prosad was also found proceeding towards the same direction. On reaching Jiutdanga they had noticed the accused persons, named in the F.I.R. (including the aforesaid four accused in the aforesaid N.C.R. Nos. 332 and 333 of 1992), coming out of a side lane and standing in front of said Lalan Prosad. They threw two bombs at him as a result of which he (Lalan Prosad) fell down on the ground, and the accused Jogindar Yadav started firing at him from a pipe-gun. The informant Gopal Prosad and his companions had thereupon raised alarm as a result of which the neighbouring people had rushed to the spot, whereupon (he aforesaid assailants had fled away. The said Lalan Prosad was immediately removed to the Assansol Sub-Divisional Hospital, where he had eventually succumbed to his injuries. It is also stated in the F.I.R. that the accused Ukil Yadav and his family were at loggerheads with the family of Lalan Prosad, and they were on the look out for an opportunity for killing him. He had eventually been attacked on that day with the intention of murdering him.

5. On the following day (20.7.92), S.I. Ramesh Chandra Biswas (hereinafter referred to as the petitioner) had forwarded the aforesaid four accused persons before the learned Judicial Magistrate concerned with prosecution reports in the aforesaid N.C.R. Case Nos. 332 and 333 of 1992 Under Section 290, I.P.C.

6. The Investigating Officer (hereinafter shortened into I.O.) in the aforesaid murder case, being No. 145 of 1992, had as well submitted F.I.R. with a forwarding report before the learned Sub-Divisional Judicial Magistrate concerned (hereinafter shortened into S.D.J.M.). The I.O. had as well made a prayer before the learned S.D.J.M. for showing the aforesaid four accused persons in the aforesaid two N.C.R. Case Nos. 332 and 333 of 1992 (hereinafter referred to as Petty Cases) as arrested in the said murder case, which was allowed. On the next day (21.7.92), the I.O. in the aforesaid murder case had also made a prayer before the learned S.D.J.M. for interrogating the aforesaid four accused persons in the said two Petty Cases, in custody, which also allowed. On application for bail filed on behalf of the said four accused persons on 21.7.92, the learned S.D.J.M. had directed the records of the aforesaid Cases to be put up, and had further directed the petitioner to attend the court on 23.7.92, along with the aforesaid relevant G.D.E. No. 946 dated 19.7.92. The learned S.D.J.M., while rejecting the application for bail on behalf of the aforesaid four accused on 23.7.92, upon consideration of the materials placed before him, had made certain observations about inter-polations etc. in the court records expressing doubts as to the allegations made therein.

7. The wife of the aforesaid victim Lalan Prosad appears to have sent a written appeal to the Hon'ble Chief Minister on 26.7.92, sending copies thereof to the various authorities, making allegations against the Petitioner for giving shelter to the aforesaid four accused persons who had murdered her husband. The I.O. in the aforesaid murder case had thereafter made a prayer before the learned S.D.J.M. on 30.7.92 for adding Sections 201 and 218, I.P.C., with the prayer for tagging the records of Salanpur P.S. N.C.R. Nos. 332 and 333 of 1992, which was rejected by him (S.D.J.M.) on 1.8.92 for the reasons recorded therein. The I.O. had thereafter filed another detailed report before the learned S.D.J.M. on 3.8.92 in the relevant murder case making allegations against the Petitioner that the aforesaid two Petty Cases (Nos. 332 and 333 of 1992) were falsely started and fabricated by him with a view to shield the aforesaid four accused from punishment in the said murder case by using his official capacity in consideration for money. The I.O. had also prayed for issue of warrant of arrest against the Petitioner (in that case) and for adding Sections 201, 218, I.P.C. against him (Petitioner), which allowed by the lened S.D.J.M.

8. Being aggrieved by the order so passed by the learned S.D.J.M. on 3.8.92 adding Sections 201/218, I.P.C. and directing issue of W.A. against him, the petitioner, S.I. Ramesh Chandra Biswas, has preferred the instant Criminal Revision on 17.8.92 for appropriate relief in terms thereof on the grounds set forth therein.

9. During the investigation in the aforesaid relevant murder case (No. 145 of 1992) and the pendency of the instant Criminal Revision before this Court, the learned Judicial Magistrate had proceeded to dispose of the said two Petty Cases (Nos. 332 and 333/92) in the absence of any step by the I.O. (in the relevant murder case) for staying the proceedings thereof. On 21.1. 93, the aforesaid four accused persons in the aforesaid two Petty Cases had been examined by the learned Judicial Magistrate Under Section 251 of the Code of Criminal Procedure, who had thereupon pleaded guilty to the offences alleged, which was accepted by the learned Magistrate, who had found them guilty of the offences punishable Under Section 290, I.P.C., and convicted and sentenced them therefor.

10. In view of the nature of the allegations made by the I.O. in the relevant murder case that the petitioner (S.I. Ramesh Chandra Biswas) had started false cases by fabricating false records/evidence against the aforesaid four accused persons, being N.C.R. Nos. 332 and 333 of 1992, with a view to shield them and protect them from punishment in the relevant murder case, it was indeed the I.O.'s duty to take steps before the learned S.D.J.M. to allow him (I.O.) to take charge of the records of the alleged fabricated N.C.R. Case Nos. 332 and 333 of 1992 in the interest of the investigation of the murder case, along with a prayer for allowing him (I.O.) to seize the records of the aforesaid two alleged fabricated petty cases for making investigation for ascertaining the genuineness of the allegations made in the said (Petty) Cases. It was also a bounden duty of the I.O. (in the said murder case) to make a prayer before the appropriate forum for staying further proceedings in the aforesaid two Petty (N.C.R.) Cases till completion of investigation in the murder case so that the investigation therein may not be jeo-paradised. The I.O. in the murder case should as well have taken step for proceeding against the Petitioner (herein) Under Section 340, Cr. P.C., in view of the allegations made against him. But unhappily for the prosecution, no such step appears to have been taken by the I.O. (in the murder case) and the Prosecuting Agency, who had thus allowed the aforesaid two Petty Cases (Nos. 332 and 333 of 1992) to be disposed of by the learned Judicial Magistrate by his relevant order dated 21.1.93, the way he did, for his (I.O.'s) failure to shake off his somnolence, raising question in the instant Revisional Case as to whether the finding of fact by the learned Magistrate in the said two Petty Cases could at all be allowed to be disturbed according to law, as sought for.

11. It would seem worth bearing in mind, as already indicated at the outset, that the allegation against the accused Harishankar and Jogindar in N.C.R. Case No. 332 of 1992 is that on 19.7.92 at about 18.45 hours they were creating 'hulla' near Urbashi Cinema Hall, using filthy language to the passers-by thereby causing annoyance and disturbance to the general public, peace and tranquility. The allegation against the accused Sunil and Munim Yadav in N.C.R. Case No. 333 of 1992 is that on the same very day (19.7. 92) at about 19.05 hours, they were creating 'hulla' near Roopnarayanpur H.C. Security Gate, causing annoyance and disturbance to the general public, peace and tranquility under influence of liquor. It would be pertinent to note in this context that the alleged places of occurrence in the aforesaid two Petty Cases are, undisputedly, at a distance of more than 30 kilometres from the alleged place of occurrence in the relevant murder case (No. 145 of 1992), as submitted by the learned Counsels during the hearing.

12. The allegation against the aforesaid four accused and seven others in the aforesaid relevant murder case (Case No. 145 of 1992) is that on the same very day (19.7.92) around 19.00 hours the accused persons had come out of a side lane at Jiudanga and threw two bombs at Lalan Prosad, who was proceeding along the road, as a result of which he fell down on the ground, and the accused Jogindar started firing at him from a pipegun. On alarm being raised by the informant and his companions, the neighbouring people had rushed there, and the assailants had fled away. The victim Lalan Prosad was immediately shifted to Assansol Sub-Divisional Hospital, who had eventually succumbed to his injuries.

13. In view of the nature of the allegations made in the aforesaid two Petty Cases and in the aforesaid murder case, if the facts alleged in the aforesaid two N.C.R. cases against the aforesaid four accused persons in question are established and determined -by a competent court of law, the -allegations against them in the relevant murder case could not clearly arise.

14. As already indicated above, the four accused in question in the aforesaid two Petty Cases (Nos. 332 and 333 of 1992) had already been found guilty by the learned Magistrate to the alleged offences punishable Under Section 290, I.P.C., for which he had convicted and sentenced them therefore by his relevant order dated 21.1.93. If the finding of guilty of the said four accused by the learned Magistrate in the relevant two Petty Cases, on the allegations made against them, as stated above, stand, they could not clearly be prosecuted and convicted in the relevant murder case for the reasons already indicated. The order of the learned Judicial Magistrate dated 21.1.93 in the aforesaid two Petty cases finding the four accused concerned guilty to the alleged offences punishable Under Section 290, I.P.C., and convicting and sentencing them thereunder does not appear to have been challenged in any way by any of the parties before any appropriate forum. The same stand as such. It is a matter of little moment that the said findings had been arrived at by the learned Magistrate on the plea of guilty of the accused concerned, even though the possibility of their pleading guilty for shielding themselves from the offence of murder in the relevant murder case (on plea of alibi) may not be altogether ruled out. Under Section 58 of the Evidence Act facts admitted need not be proved. The Court, however, has the discretion to require the facts admitted to be proved otherwise than by such admission. Facts may thus be proved by admission or evidence. Under Section 252, Cr. P.C., as well it is neither obligatory for a Magistrate to accept a plea of guilty by an accused. He may or may not do so in the due exercise of his discretion. But if he accepts the plea of guilty Under Section 252 of the Code and finds an accused guilty of an offence for which he is prosecuted, he (Magistrate) must be deemed to have arrived at such a finding on the relevant fact/s in issue on trial according to law. And, such finding and or order of conviction on a plea of guilty by an accused stands on a more stronger footing than a finding and/or order of conviction on evidence in view of the provisions of Section 375(b) of the Code which provides that no appeal shall lie against an order of conviction on a plea of guilty by an accused except as to the extent or legality of the sentence if the conviction is by a Court of Sessions, Metropolitan Magistrate or Magistrate of the First and Second Class.

15. A question was posed to the learned Advocate for the opposite party No. 2, vehemently opposing the instant revisional application, as to whether the four accused persons in question found guilty (on the allegations made) and convicted on trial in the relevant two petty cases could again be held guilty (on the allegations made) and convicted in the relevant murder case, if the evidence on trial so justifies, since the allegations in the relevant two petty cases and the relevant murder case are mutually contradictory and mutually exclusive of each other. And, if convicted, what would be the legal effect of their order of conviction in the said two petty (N.C.R.) cases. They could not conceivably remain convicted in the said two petty cases and the Murder Case in the nature of the allegations therein. If the allegations in the two petty cases stand, the allegations in the relevant murder case should clearly fail. No convincing answer could be given by the learned Advocate for the opposite party No. 2. He had merely referred to the decision of a Single Bench Judge of this Court in Gopal Chandra Mondal v. The State, 61 CWN 967 in support of his feeble contention to the contrary. But the facts in the said case are quite distinguishable from the facts and circumstances in the relevant proceedings before us. In the said case an order of acquittal was passed by the court concerned Under Section 248, Cr. P.C. after according permission to withdraw from the prosecution, resulting in statutory acquittal before a final order was passed therein, and before the trial had come to a close. In the relevant two petty cases the trial had come to a close, and the four accused in question had been convicted on their plea of guilty on trial according to law. The aforesaid decision could, therefore, be no answer to the aforesaid question posed.

16. As held by a five-Judge Bench of the Supreme Court in Manipur Administration v. Thockchom Bira Singh, 0065/1964 : [1964]7SCR123 , the rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It also does not prevent the trial of any offence as does autrefois acquit, but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset a finding, a fact recorded by a competent court at a previous trial.

17. It has also been echoed in the decision in Piara Singh v. The State of Punjab by a three-Judge Bench of the Supreme Court, reported in : 1969CriLJ1435 that 'the principle of is sue-estoppel is different from the principle of double jeopardy or autrefois acquit as embodied in Section 403 of the Criminal Procedure Code. The principle of issue-estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such, a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2) Cr. P.C. For issue-estoppel to arrise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. Thus any issue as between State and one of the accused persons in the same litigation cannot operate as binding upon the State with regard to the other accused.'

18. It has clearly been indicated in the latter decision that for issue-estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. The facts in issue in the relevant two N.C.R. Cases (on the allegations made therein) had indeed been raised and decided between the State and the four accused concerned giving rise to issue-estoppel so far as they are concerned. It has also been clearly held in the former decision that the said rule does not prevent the trial of any offence as does autrefois acquit, but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before the court of competent jurisdiction. The rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial.

19. In view of the aforesaid two decisions of the Supreme Court the issue of fact in the aforesaid two N.C.R. Case Nos. 332 and 333 of 1992 in relation to the four accused in question (on the allegations made therein) having been tried by a competent court and findings reached, the said findings would clearly constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the said four accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused are tried subsequently in the relevant murder case, being No. 145/92. That being so, no evidence designed to upset the findings of fact by the learned Magistrate in the aforesaid two N.C.R. cases can be admitted during the trial of the four accused concerned in the relevant murder case. In the circumstances the four accused concerned in the aforesaid two party cases, even if tried in the relevant murder case, could not clearly be found guilty and convicted on the allegations made therein, which would invariably make their trial therein (in the relevant murder case) an exercise in futility. Even though it is not for this court to decide on the question of reception of evidence during the trial of the relevant murder case, which is to be decided by the trial court at the appropriate stage, this Court cannot certainly shut its eyes on the ultimate result of the said trial so far as the aforesaid four accused (in the relevant two N.C.R. cases) are concerned, in the facts and circumstances amply and appallingly disclosed and discussed above, in view of the aforesaid two decisions of the Supreme Court holding the field. And, if the said four accused persons cannot be held guilty and convicted for the (principal) offence in the relevant murder case (on the allegations made against them therein), the petitioner herein, S.I. Ramesh Chandra Biswas, could neither be held guilty and convicted for the alleged offences punishable Under Sections 201/218, I.P.C., on the allegations made against him, for which he is sought to be prosecuted. His prosecution in the relevant murder case (on the allegations made) must as well be an exercise in futility, in the aforesaid circumstances. The Court shall not certainly allow a prosecution to continue when there could be no chance whatsoever of ultimate conviction of the petitioner-accused, sought to be prosecuted. The Supreme Court has held in the decision in Madhav Rao Jiwaji Rao Scindia and Anr. v. Sambhaji Rao Chandroji Rao Angre and Ors., : 1988CriLJ853 that where in the opinion of the court the chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings even though it may be at a preliminary stage. The prosecution of the petitioner in the relevant proceedings is liable to be quashed as such.

20. Let alone the merits of the matter, the impugned order of the learned Magistrate dated 3.8.92 in the relevant murder case adding Sections 201/218, I.P.C., against the petitioner and directing issue of warrant of arrest against him could neither be sustained on a technical ground. It appears from the materials presented before the Court that the I.O. in the relevant murder case had made a prayer before the learned Magistrate on 30.7.92 for adding Sections 201 and 218, I.P.C., with a prayer for tagging Salanpur P.S. N.C.R. Case Nos. 332/92 and 333/92. The learned Magistrate, upon hearing by his relevant order dated 1.8.92 had rejected the prayer of the I.O. for tagging the case records of the aforesaid two N.C.R. cases, as also the prayer for adding Sections 201/218, I.P.C. The learned Magistrate having thus once rejected the I.O.'s prayer for addition of Sections 201/218, I.P.C., by his aforesaid relevant order dated 1.8.92, he did, it was incompetent for him to allow the same very prayer by his subsequent order dated 3.8.92, the way he did. The Code of Criminal Procedure does not empower a Magistrate to revise or review his own order.

21. In view of the discussions above, the instant revisional application by the petitioner, S.I. Ramesh Chandra Biswas, should thus succeed. The same succeeds as such, as it must. The impugned order dated 3.8.92 passed by the learned Magistrate in the relevant murder case, as also the prosecution of the petitioner in the said relevant proceedings be accordingly quashed. No order for costs.

Let xerox copies of this order be supplied to the learned Advocates for the parties concerned, as prayed for, on usual undertakings.

Let the relevant case against the accused person therein, other than the petitioner herein, proceed according to law without any unreasonable delay.