# Rakesh Kumar v. State of U.P. & Anr

- **Citation:** (2015) 1 ILRA 199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-17
- **Case number:** Criminal Misc. Case No. 1576 of 2012
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-state-of-u-p-anr-43279
- **Pages:** 6

## Headnote

Cr.P.C.-Section 482- Quash of criminal
proceeding-offence under section 363,
366 IPC-on principle of 'stare decisis' -
other co accused got fair acquittaldifference
between
'resjudicata'
and
'stare decisis'-expalined-proceeding can
not be quashed.
Held: Para-17
It has been contended by learned
counsel for the petitioner that a perusal
of the judgement of acquittal reveals
that
main
accused
Virendra
Kumar
Dwivedi married with the prosecutrix
later on. The charges framed against the
petitioner is not only of Section 376, 363
or 366 IPC but also for other sections.
The court passed acquittal on the ground
of document in the form of marriage
certificate. The case of the present
applicant is not based on the same
defence. Moreover as discussed above, it
could not be said that the case is
squarely covered under Section 300 of
Cr.P.C., therefore, I am of the view that
the present proceeding does not warrant
any interference on the basis of doctrine
of stare decisis.
Case Law discussed:
[2005 (Suppl.)ACC 895 (All)]; [2004 (Suppl.) ACC
391 (All.)]; [2008 (63) ACC 612 (SC)]; [1991
(28) ACC 111 (SC)]; [2012 (76) ACC 598 (SC)];
AIR 2014 SCC 1106; [2008 (3) JIC 267 (All)
(DB)]; (2006)1 SCC 191 ; [2003 (1) JIC 2006
(SC)]; [AIR 1954 SC 397 (Vol. 47, C.N. 95]; AIR
1965 SC 1037.

## Text

1 All] Rakesh Kumar Vs. State of U.P. & Anr.
199
and (C) is hereby set aside and judgment
of Trial Court dated 16.4.1987 is hereby
restored and confirmed.
37. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.01.2015
BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.
Criminal Misc. Case No. 1576 of 2012
Rakesh Kumar
...Petitioner
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Petitioner:
Sri Balram Yadav
Counsel for the Respondents:
Sri Rajendra Kumar Dwivedi, AGA
Cr.P.C.-Section 482- Quash of criminal
proceeding-offence under section 363,
366 IPC-on principle of 'stare decisis' -
other co accused got fair acquittaldifference
between
'resjudicata'
and
'stare decisis'-expalined-proceeding can
not be quashed.
Held: Para-17
It has been contended by learned
counsel for the petitioner that a perusal
of the judgement of acquittal reveals
that
main
accused
Virendra
Kumar
Dwivedi married with the prosecutrix
later on. The charges framed against the
petitioner is not only of Section 376, 363
or 366 IPC but also for other sections.
The court passed acquittal on the ground
of document in the form of marriage
certificate. The case of the present
applicant is not based on the same
defence. Moreover as discussed above, it
could not be said that the case is
squarely covered under Section 300 of
Cr.P.C., therefore, I am of the view that
the present proceeding does not warrant
any interference on the basis of doctrine
of stare decisis.
Case Law discussed:
[2005 (Suppl.)ACC 895 (All)]; [2004 (Suppl.) ACC
391 (All.)]; [2008 (63) ACC 612 (SC)]; [1991
(28) ACC 111 (SC)]; [2012 (76) ACC 598 (SC)];
AIR 2014 SCC 1106; [2008 (3) JIC 267 (All)
(DB)]; (2006)1 SCC 191 ; [2003 (1) JIC 2006
(SC)]; [AIR 1954 SC 397 (Vol. 47, C.N. 95]; AIR
1965 SC 1037.
(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)
1. Heard Sri Balram Yadav, learned
counsel for the petitioners and Sri
Rajendra Kumar Dwivedi, learned A.G.A.
for the State.
2. By means of this petition, under
Section 482 of Code of Criminal
Procedure
(In
short
'Cr.P.C.'),
the
petitioner has prayed for quashing the
proceedings of Criminal Case No.2215 of
2011 pending in the court of learned
Additional Chief Judicial magistrate-III,
Raebareli as well as the charge-sheet
dated 10.07.1997 and cognizance order
dated 22.09.2011 passed by learned
Additional Chief Judicial Magistrate-III,
Raebareli.
3. Brief facts for deciding this
petition are that the opposite party no.2
lodged a first information report against
the petitioner Rakesh Kumar and Smt.
Krishna Devi in Case Crime No.232 of
1997, under Sections 363, 366 IPC, Police
Station
Kotwali
Lalganj,
District
Raebareli. After investigation, the police
submitted
charge-sheet
against
Smt.
Krishna Devi and Virendra Kumar
Dwivedi alias Chhotey Babuwa on
09.07.1997.
Thereafter
the
police
200
 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted another charge-sheet with same
case crime number against the petitioner
Rakesh Kumar under Sections 363, 366,
376, 506, 368, 466, 468 IPC. The trial of
co-accused Smt. Krishna Devi and
Virendra Kumar Dwivedi was conducted
and they have been acquitted by the trial
court vide Judgement and order dated
16.11.2005.
4. It has been contended by learned
counsel for the petitioner that on the basis
of aforesaid judgement of the trial court,
the proceedings initiated against the
petitioner is liable to be quashed. The
principle of stare decisis is applicable in
this case. Learned counsel relied upon the
judgement of this Court in the case of
Mohammad Amzad and another Vs. State
of U.P. and another [2005 (Suppl.) ACC
895 (All)] wherein it has been observed
that the trial of other accused on the same
very evidence or on the future statement
of witnesses if comes to contrary shall be
barred by the principle of stare decisis.
Learned counsel also relied upon the
judgement of this Court in the case of
Narayan Rai Vs. State of U.P. and others
[2004 (Suppl.) ACC 391 (All)] and the
judgement of the Apex Court in the case
of State of Adhra Pradesh Vs. Bajjoori
Kanthaiah [2008 (63) ACC 612 (SC)]
wherein the Apex Court has held that if
any case falls within the category of latest
judgement of State of Haryana Vs. Bhajan
Lal [1991 (28) ACC 111 (SC)], the
proceedings may be quashed.
5. Another judgement of the Apex
Court has also been cited by learned
counsel for the petitioner rendered in
Rajesh Talwar Vs. CBI (Delhi) and
another [2012 (76) ACC 598 (SC)]. On
the strength of this judgement, it has been
stated that the learned Magistrate must
have applied his mind before taking
cognizance against an accused. He also
relied upon the judgement of the Apex
Court in the case of Umesh Kumar Vs.
State of Andhra Pradesh; AIR 2014 SCC
1106. On the strength of this judgement, it
has been urged that once the petition
under Section 482, Cr.P.C. is filed before
framing of the charges, petition cannot be
rejected on the ground that the accused
can argue legal and factual issues at the
time of framing of charge.
6. On the contrary, learned A.G.A.
relying upon judgements rendered in the
cases of Km. Rinki Vs. State of U.P. and
others [2008 (3) JIC 267 (All) (DB)],
Rajan Rai Vs. State of Bihar; (2006) 1
SCC
191,
K.G.
Premshanker
Vs.
Inspector of Police and another [2003 (1)
JIC 2006 (SC)] and the judgement of
Constitution Bench of the Apex Court in
the case of M.S. Sheriff and another Vs.
State of Madras and others [AIR 1954 SC
397 (Vol.41, C.N. 95] submitted that the
principle of stare decisis cannot be
applied in this case.
7. In this case, the only plea of stare
decisis has been taken for quashing the
proceedings. Hence, it is necessary to
discuss the principle of stare decisis.
8. The Black's Laws Dictionary
defines 'stare decisis' as under:-
Under doctrine a deliberate or
solemn decision of court made after
argument of question of law fairly arising
in the case, and necessary to its
determination, is an authority, or binding
precedent in the same court or in other
courts of equal or lower rank in
subsequent cases where the very point is
again in controversy. Doctrine is one of
1 All] Rakesh Kumar Vs. State of U.P. & Anr.
201
the policy, grounded on theory that
security
and
certainty
require
that
accepted and established legal principle,
under which rights may accrue, be
recognized and followed, though later
found to be not legally sound, but whether
previous holding of court shall be adhered
to, modified, or overruled is within court's
discretion under circumstances of case
before it. When point of law has been
settled by decision, it forms precedent
which is not afterwards to be departed
from, and, while it should ordinarily be
strictly adhered to, there are occasions
when departure is rendered necessary to
vindicate plain, obvious principles of law
and remedy continued injustice. The
doctrine is not ordinarily departed from
where decision is of long- standing and
rights have been acquired under it, unless
considerations of public policy demand it.
The
doctrine
is
limited
to
actual
determinations in respect to litigated and
necessarily decided questions and is not
applicable to dicta or obiter dicta.
"Stare Decisis' is only doctrine
derived from 'stare decisis et non quieta
movere,' which differs from that of
doctrine of res judicata in the following
ways:
(1) Res judicata applies to the
decision in the dispute, while stare decisis
operates as to the rule of law involved.
(2) The former binds only the parties
and their successors, whereas the latter
binds everyone.
(3) Res Judicata applies to all Courts,
but stare decisis is brought into operation
only by the decisions of higher Courts.
(4) The former takes effect after the
time for appeal is past; the latter operates
at once. Dias of Jurisprudence, Edn.,
1964.
9. The principles of stare decisis has
been considered in several cases by this
Court as well by the Hon'ble Supreme
Court.
10. The Hon'ble Suprem Court in
K.K.
Premshanker's
case
(Supra)
considered the relevancy of judgements in
light of the provisions of section 41 to 43
of the Indian Evidence Act relying upon
its earlier judgement of M.S. Sheriff's
case (Supra) and gave conclusive opinion
as under:-
"Para 26. "What emerges from the
aforesaid discussion is - (1) the previous
judgement which is final can be relied
upon as provided under Sections 40 to 43
of the Indian Evidence Act; ( 2) in civil
Suits between the same parties, principle
of res- judicata may apply; (3) in a
criminal case Section 300 Cr. P.C. makes
provision that once a person is convicted
or acquitted he may not be tried again for
the same offence if the conditions
mentioned therein are satisfied; (4) if the
criminal case and the civil proceedings
are for the same cause, judgement of the
civil court would be relevant if conditions
of any of the Sections 40 to 43 are
satisfied, but it cannot be said that the
same would be conclusive except as
provided in section 41. Section 41
provides which judgement would be
conclusive proof of what is stated
therein."
11. In the M.S. Sheriff's Case
(supra), the Hon'ble Supreme Court held
that no hard and fast rule can be laid
down and that possibility of conflicting
decision in civil and criminal Courts is
not a relevant consideration. The law
envisages "such an eventuality when it
expressly refrains from making the
202
 INDIAN LAW REPORTS ALLAHABAD SERIES
decision of one Court binding on the
other, or even relevant, except for limited
purpose such as sentence or damages."
12. In the case of Karan Singh Vs.
State of Madhya Pradesh AIR 1965 SC
1037, Hon'ble Supreme Court considered
the same question, the relevant paragraph
6 of which is extracted below:-
6. "We are therefore of opinion that
the judgment in Krishna Govind Patil's
case, AIR 1963 SC 1413 does not assist
the appellant at all. On the other hand we
think that the judgments earlier referred
to on which the High Court relied, clearly
justify the view that in spite of the
acquittal of a person in one case it is open
to the Court in another case to proceed on
the basis - of course if the evidence
warrants it - that the acquitted person
was guilty of the offence of which he had
been tried in the other case and to find in
the later case that the person tried in it
was guilty of an offence under S. 34 by
virtue of having committed the offence
along with the acquitted person. There is
nothing in principle to prevent this being
done. The principle of Sambasivam's case,
1950 AC 458 has no application here
because the two cases we are concerned
with are against two different persons
though for the commission of the same
offence. Furthermore, as we have already
said, each case has to be decided on the
evidence led in it and this irrespective of
any view of the same act that might have
been taken on different evidence led in
another case."
13. In Rajan Rai's case (Supra), the
police after registering the case took up
the investigation and on completion
thereof submitted the charge-sheet against
all the six accused on receipt whereof
cognizance was taken and all of them
were committed to the Court of Sessions
to face trial. As one of the accused was
absconding, his trial was separated from
that of other five accused persons, out of
whom
one
died
before
the
commencement of trial, as such, the trial
proceeded against the remaining four
accused persons and all were convicted.
Against the said judgement they preferred
the appeals. During the course of
pendency of appeals, the other one coaccused was apprehended and was put on
trial ultimately the trial court convicted
him. He also filed an appeal before the
High Court. The appeals preferred by the
other four convicted accused persons
challenging their convictions, which were
decided by the High Court and the same
were allowed and their convictions and
sentences set aside. The appeal filed by
the other co-accused was taken up later.
The High Court upheld his convictions
and sentences. Then, he preferred appeal
by Special Leave before the Hon'ble
Supreme Court to attack the impugned
Judgement on three counts. One of the
ground was that in appeal arising out of
the earlier trial, the High Court acquitted
the other four accused persons on merit,
therefore, it was not permissible for it to
uphold the conviction of the appellant on
the basis of evidence of the same
witnesses examined during the course of
trial of the appellant. In considering the
case the Hon'ble Supreme Court also cited
the provisions of section 40 to 44 of the
Evidence Act 1872, which are under the
heading "Judgements of courts of justice
when relevant" and found that it has not
been shown that the judgement of the
acquittal rendered by the High Court in
appeals arising out of the earlier sessions
trial could be said to be relevant under the
other provisions of the Evidence Act, it
1 All] Rakesh Kumar Vs. State of U.P. & Anr.
203
was clearly "irrelevant" and could not
have been taken into consideration by the
High Court while passing the impugned
judgement. The Hon'ble Court also
considered
other
earlier
judgements
rendered in
the trial and ultimately
formulated the following opinion.
"We are clearly of the view that the
judgement of acquittal rendered in the
trial of the other four accused persons is
wholly irrelevant in the appeal arising out
of the trial of the appellant Rajan Rai as
the said judgement was not admissible
under the provisions of sections 40 to 44
of the Evidence Act. Every case has to be
considered on the evidence adduced
therein. Case of the four acquitted
accused persons was decided on the basis
of evidence led there while the case of
present appellant has to be decided only
on the basis of evidence adduced during
the course of his trial".
14. The relevancy of judgement of
course of justice derives a power from the
provisions of Sections 40 to 43 of the
Indian
Evidence
Act,
which
are
reproduced herein under:-
40. "Previous judgments relevant to
bar a second suit or trial.- The existence
of any judgment, order or decree which
by law prevents any Court from taking
cognizance of a suit or holding a trial is a
relevant fact when the question is whether
such Court ought to take cognizance of
such suit, or to hold such trial."
41. Relevancy of certain judgments
in probate, etc., jurisdiction.- A final
judgment, order or decree of a competent
Court, in the
exercise of probate,
matrimonial, admiralty or insolvency
jurisdiction, which confers upon or takes
away
from
any
person
any
legal
character, or which declares any person
to be entitled to any such character, or to
be entitled to any specific thing, not as
against
any
specified
person
but
absolutely, is relevant when the existence
of any such legal character, or the title of
any such person to any such thing, is
relevant.
Such judgement, order or decree is
conclusive proofthat any legal character which it
confers accrued at the time when such
judgment, order or decree came into
operation;
that any legal character, to which it
declares any such person to be entitled,
accrued to that person at the time when
such judgment, order or decree declares
it to have accrued to that person; that any
legal character which it takes away from
any such person ceased at the time from
which such judgment, order or decree
declared that it had ceased or should
cease;
and that anything to which it
declares any person to be so entitled was
the property of that person at the time
from which such judgment, order or
decree declares that it had been or should
be his property.
42.
"Relevancy
and
effect
of
judgments, orders or decrees, other than
those
mentioned
in
section
41.-
Judgments, orders or decrees other than
those mentioned in section 41, are
relevant if they relate to matters of a
public nature relevant to the enquiry; but
such judgments, orders or decrees are not
conclusive proof of that which they state."
43. "Judgments, etc., other than
those mentioned in sections 40 to 42,
when relevant.- Judgments, orders or
decrees, other than those mentioned in
sections 40, 41 and 42, are irrelevant,
204
 INDIAN LAW REPORTS ALLAHABAD SERIES
unless the existence of such judgment,
order or decree, is a fact in issue, or is
relevant under some other provisions of
this Act.""
15. After considering several
decisions, the Division Bench of this
Court in Kumar Rinki's case (Supra)
concluded its opinion on the point as
under paragraphs 13 &14:
"13. The inference that is deducible
from discussion of the above decisions
that the judgement of acquittal rendered
in the trial of other co-accused is wholly
irrelevant as the said judgment would not
be admissible under the provisions of
Sections 40 to 44 of the Evidence Act. It
also leaves no manner of doubt that every
case has to be decided on the evidence
adduced therein and therefore, the case of
the petitioner has to be decided on the
basis of evidence which may be adduced
during the course of trial.
14. "The principles that are distilled
from the discussion of the above decisions
are:
"(i) the acquittal of a co-accused in a
separate trial cannot be made basis for
quashing the proceedings against another
co-accused who is being separately tried
on the principle that each case has to be
decided on the evidence adduced in that
case;
(ii) Judgement of acquittal rendered
in one case is not relevant in the case of
co-accused separately tried inasmuch as
Sections 40 to 44 of the evidence Act deal
with relevancy of certain judgments in
probate, matrimonial, admiralty and
insolvency jurisdiction and therefore,
inapplicable to a criminal case.""
16. In this case, a separate chargesheet has been filed against the petitioner,
therefore,
separate
case
has
been
registered against him.
17. It has been contended by learned
counsel for the petitioner that a perusal of
the judgement of acquittal reveals that
main accused Virendra Kumar Dwivedi
married with the prosecutrix later on. The
charges framed against the petitioner is
not only of Section 376, 363 or 366 IPC
but also for other sections. The court
passed acquittal on the ground of
document in the form of marriage
certificate. The case of the present
applicant is not based on the same
defence. Moreover as discussed above, it
could not be said that the case is squarely
covered under Section 300 of Cr.P.C.,
therefore, I am of the view that the
present proceeding does not warrant any
interference on the basis of doctrine of
stare decisis.
18. Hence, petition lacks merit and
is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.01.2015
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE ASHOK PAL SINGH, J.
Service Bench No. 1654 of 2012
Ex Major Viveky Rai (Ta No. 42343)
 ...Petitioner
Versus
Union of India
...Respondent
Counsel for the Petitioner:
Sri Prahlad Nath Chaturvedi, Dr. L.P.
Mishra, Sri Kamal Kumar Singh Bisht, Sri
Vinod Shanker Misra
Counsel
for
the
Respondent: