# Anant Mishra @ Amit Mishra @ Surya Prakash Mishra v. State of U.P. & Anr

- **Citation:** (2022) 4 ILRA 307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-29
- **Case number:** Application U/S 482 No. 1325 of 2021
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anant-mishra-amit-mishra-surya-prakash-mishra-v-state-of-u-p-anr-48320
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 364-A/34quashing
of
charge-sheet-Informant
PW-1
lodged
an
FIR
against
the
unknown
persons
that
accused
abducted
his
brother
PW-3-three
witnesses,
PW-1
(informant),
PW-2
(niece
of
abductee)
and
PW3(abductee)
himself
denied
the
prosecution case stating that nobody
abducted him nor any ransom was
demanded-All three accused persons
were exonerated of the charges-Later,
Investigating Officer intentionally filed
charge-sheet ignoring the judgment
passed
by
trial
court-no
criminal
proceeding can be sustained against
co-accused
on
the
same
set
of
witnesses-In the present case too,
there is no separate witness and on the
basis of testimony of same prosecution
witnesses, main accused was acquitted
by the court below-The principle of
stare decisis will apply in the present
case
and
the
criminal
proceeding
cannot
be
sustained-Hence,
quashed.(Para 1 to 14)

B. If two persons are prosecuted,
though separately, under the same
charge
for
offences
having
been
committed in the same transaction and
on the basis of the same evidence, and
if one of them is acquitted for whatever
may be the reason and the other is
convicted,
then
it
will
create
an
anamalous position in law and is likely
to shake the confidence of the people in
the
administration
of
justice.
The
principle of stare decisis will apply and
the applicant's conviction cannot be
sustained.(Para 11)

The application is allowed.(E-6)

List of Cases cited:
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Diwan Singh Vs St. (1964) Lawsuit (All) 182

## Text

4 All. Anant Mishra @ Amit Mishra @ Surya Prakash Mishra Vs. State of U.P. & Anr.
307
the applicant. Learned trial court opined
that the question framed by the applicant in
which
the
applicant
want
to
cross
examination of the P.W.-1, which has
already been done. The P.W.-1 was already
cross examined before the trial court before
20 years ago. The case is pending for the
last 20 years and the occurrence is of the
year, 2001. The order dated 22.2.2022
passed by the learned trial court is well
reasoned and well discussed, thus learned
trial
court
has
rightly,
rejected
the
application under Section 311 Cr.P.C. to
recall the witness, P.W.-1 for further cross
examination. Thus, there is no illegality,
irregularity or perversity in the order
passed by the learned trial court.

10. In view of above, the present
application under Section 482 Cr.P.C. is
devoid of merit and is liable to be
dismissed.

11. The application under Section 482
Cr.P.C. is, accordingly, dismissed.

12. Order of the this Court be
communicated to learned trial court for
necessary compliance.
----------
(2022)04ILR A307
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.03.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 1325 of 2021

Anant Mishra @ Amit Mishra @ Surya
Prakash Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ravindra Shukla

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 364-A/34quashing
of
charge-sheet-Informant
PW-1
lodged
an
FIR
against
the
unknown
persons
that
accused
abducted
his
brother
PW-3-three
witnesses,
PW-1
(informant),
PW-2
(niece
of
abductee)
and
PW3(abductee)
himself
denied
the
prosecution case stating that nobody
abducted him nor any ransom was
demanded-All three accused persons
were exonerated of the charges-Later,
Investigating Officer intentionally filed
charge-sheet ignoring the judgment
passed
by
trial
court-no
criminal
proceeding can be sustained against
co-accused
on
the
same
set
of
witnesses-In the present case too,
there is no separate witness and on the
basis of testimony of same prosecution
witnesses, main accused was acquitted
by the court below-The principle of
stare decisis will apply in the present
case
and
the
criminal
proceeding
cannot
be
sustained-Hence,
quashed.(Para 1 to 14)

B. If two persons are prosecuted,
though separately, under the same
charge
for
offences
having
been
committed in the same transaction and
on the basis of the same evidence, and
if one of them is acquitted for whatever
may be the reason and the other is
convicted,
then
it
will
create
an
anamalous position in law and is likely
to shake the confidence of the people in
the
administration
of
justice.
The
principle of stare decisis will apply and
the applicant's conviction cannot be
sustained.(Para 11)

The application is allowed.(E-6)

List of Cases cited:
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Diwan Singh Vs St. (1964) Lawsuit (All) 182

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.

Heard
learned
counsel
for
petitioner, learned A.G.A. for the State and
perused the material available on record.

2. By means of this petition under
Section 482 Cr.P.C. the petitioner has
sought following reliefs:-

"Wherefore it is most respectfully
prayed that this Hon'ble Court may
graciously be pleased to quash the
impugned charge sheet no. 02 of 2018
dated 4.12.2018 submitted by the police
relating to Case Crime No. 372 of 2016,
under Section 364-A/34 IPC, Police Station
Lambhuwa, District Sultanpur against the
petitioner and summoning order dated
18.01.2019
passed
by
learned
Chief
Judicial
Magistrate,
Court
No.
16,
Sultanpur in Criminal Case No. 141 of
2019 (State of U.P. Vs. Anand Deep Dubey
and others) and the entire proceedings of
aforesaid case may also be quashed."

3. Brief facts giving rise to the present
petition are that opposite party no. 2 -
Matadeen lodged an FIR on 08.10.2016
against the unknown persons bearing Case
Crime No. 372 of 2016 under Section 364
IPC, Police Station Lambhuwa, District
Sultanpur with the allegation that some
unknown accused abducted his brother
Sikander. During investigation, the name of
five persons, namely, Jitendra Pandey alias
Chintu, Jitenra Pathak, Dharam Raj Nishad,
Anand Deep Dubey alias Ashu Deubey and
Anan Mishra (present applicant) came into
light. Thereafter the police submitted
charge sheet against JItendra Pandey,
Jitendra Pathak and Dharam Raj Nishad
and they were arrested. The trial against
three persons were commenced before the
learned Additional District Judge Court No.
3 Sultanpur vide Sessions Trial No. 111 of
2017
in
which
statement
of
PW-1
complainant Matadeen was recorded on
06.03.2018.

4. Learned counsel for petitioner has
submitted that in this case three witnesses
were examined. PW-1 Matadeen is the first
informant, brother of the abductee has not
supported the prosecution case. PW-2
Monu alias Dilip Kumar, who is niece of
abductee, has clearly stated that no one had
called him on mobile phone for ransom of
Rs.25,00,000/- and he also did not support
the prosecution case. PW-3 is the abductee
Sikander. He also did not support the
prosecution case. He clearly stated that
nobody abducted him nor any ransom was
demanded. Thus PW-3 has also not
supported the case of the prosecution.
Therefore, all the three accused persons
were exonerated of the charges levelled
against them under Section 364-A IPC and
they have been acquitted by learned IIIrd
Additional Sessions Judge, Sultanpur vide
order dated 28.09.2018.

5. Further submission of learned
counsel for petitioner is that after passing
the
judgment
of
trial
court
dated
28.09.2018, this fact was within the
knowledge of Investigating Officer but the
Investigating Officer intentionally filed
charge sheet on 24.12.2018 before the court
concerned ignoring the judgment passed by
trial court dated 28.09.2018.

6. It is further submitted that since the
witnesses were examined in Sessions Trial
No. 111 of 2017 and they did not support
the prosecution case, so it will be futile
exercise to face the trial. In support of his
4 All. Anant Mishra @ Amit Mishra @ Surya Prakash Mishra Vs. State of U.P. & Anr.
309
submission, learned counsel for petitioner
has relied upon a judgment of this Court in
the case of Diwan Singh Vs. State reported
in 1964 Lawsuit (All) 182, in that case also
the accused were discharged on the ground
of acquittal of co-accused, which are
having the similar allegation and same
prosecution witnesses.

7. Learned counsel for petitioner has
submitted that in the case of Diwan Singh
(supra) it was held that if the allegation and
witnesses are same and after examination
of witnesses one accused is acquitted, then
other co-accused can be punished or not.
this Court has clearly held that under such
circumstances the conviction of co-accused
cannot be sustained.

8. Learned AGA for the State has
opposed the prayer made by learned
counsel for the applicants, but could not
dispute the fact of acquittal of other coaccused persons.

9. I have considered the rival
submissions made by learned counsel for
the parties, perused the record and the
judgements relied upon by learned counsel
for the applicant.

10. In the matter of Diwan Singh
(Supra), this was the issue that if allegation
&
witnesses
are
same
and
after
examination of witnesses one accused is
acquitted, then other co-accused can be
punished or not. This Court has clearly held
that
under
such
circumstances
the
conviction
of
co-accused
cannot
be
sustained.

11. Relevant paragraph Nos. 4, 5 & 6
of the judgment of Diwan Singh (supra)
are quoted hereinbelow:-

"4. Learned counsel for the
applicant has argued that both Manohar
and the applicant were arrested together,
searched together and as a single recovery
list was prepared about the articles alleged
to have been recovered from them and as
the same witnesses were examined. by the
prosecution in both the trials before the
Magistrate, it will be incongruous to
convict one of them on the basis of the
same evidence and to acquit the other. I
find force in this contention,

5. The judgment of the learned
Sessions Judge in Criminal Appeal No. 262
of 1963 setting aside the conviction and
sentence of Manoliar was not challenged
by the State by filing an appeal and, as
such, has become final. It is no doubt true
that the learned Sessions fudge acquitted
Manohar on a technical ground because, in
his opinion, "the prosecution suffers from a
patent infirmity creating reasonable doubt
regarding the identity of the alleged fire
arms". He did not disbelieve the evidence
of the prosecution on facts. The reasoning
given by the learned Sessions Judge in
acquitting Manohar is not very appealing
but the fact remains that Manohar who was
arrested along with the applicant on the
same charge and against whom the same
evidence has been produced by the
prosecution, has been acquitted, while the
appeal of the applicant against his
conviction was dismissed by the learned 1st
Additional Sessions Judge of Etawah. In
view of the acquittal of Manohar on the
same facts and on the same evidence which
has become absolute, it is not possible to
maintain the conviction of the applicant.

6. If two persons are prosecuted,
though separately, under the same charge
for offences having been committed in the
same transaction and on the basis of the
same evidence, and if one of them is
acquitted for whatever may be the reason
310 INDIAN LAW REPORTS ALLAHABAD SERIES
and the other is convicted, then it will
create an anamalous position in law and is
likely to shake the confidence of the people
in the administration of justice. Justice is
not only to be done but also seem to be
done. Therefore, I am clearly of opinion
that as has been held in the case of Pritam
Singh v. State of Punjab. (S) AIR 1956 SC
415, the principle of stare decisis will apply
in the present case and the applicant's
conviction cannot be sustained."

12. After going through the judgements
relied by learned counsel for the applicant, it
is very much clear that Court has held that
considering the testimony of witnesses, if one
accused is acquitted, no criminal proceeding
can be sustained against co-accused on the
same set of witnesses and in the present case
too, there is no separate witness and on the
basis of testimony of same prosecution
witnesses, main accused was acquitted by the
court below, Whenever there is no prospect of
the case ending in conviction, valuable time
of court should not be wasted for holding trial
only for the purpose of completing the
procedure to pronounce the conclusion on
future date. Therefore, criminal proceeding
cannot be permitted to continue against the
applicant.

13. Therefore, under such facts and
circumstances of the case as well as law laid
down by the Apex Court, criminal proceeding
against the applicants in Criminal Case No.
141 of 2019 (State of U.P. Vs. Anand Deep
Dubey and others), arising out of Case Crime
No. 372 of 2016, under Section 364-A/34
IPC, Police Station Lambhuwa, District
Sultanpur cannot be sustained and is hereby
quashed.

14.

With
the
aforesaid
observation/direction, this petition under
Section 482 Cr.PC. is allowed.

15. Office is directed to communicate
this order to the trial court concerned for
necessary action and compliance.
----------
(2022)04ILR A310
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Application U/S 482 No. 8634 of 2021

Ram Sajan Verma ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sheshadri Trivedi, Sri Gopal Swarup
Chaturvedi, (Senior Adv.), Sri Satish Trivedi
(Senior Adv.), Neetu Patel

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Section 409-quashing
of
impugned
order-embezzlement
of
public money-re-investigation-FIR lodged
by first informant in his official capacity as
a public servant-After submission of final
report, protest petition filed by first
informant-Concerned magistrate rejected
the final report and directed for reinvestigation-this order challenged by one
of the accused and was ultimately set
aside by revisional court, matter was
remanded with a direction to concerned
Magistrate to pass fresh order-thereafter,
first informant showing his agreement
with final report filed an affidavit and the
same was accepted, which order was
challenged by first informant himself by
means
of
criminal
revision
wherein
impugned order has been passed-no
estoppel can be pleaded by accused
against
first
informant-Concerned
Magistrate
in
complete
ignorance
of