NARESH KUMAR Vs. GOPAL KRISHAN

JUDGEMENT

(1.) THIS petition has been directed against order dated 13.12.1994 whereby Additional Sessions Judge, Patiala has allowed the revision petition filed by the complainant and has directed the trial Court to apply its mind to the request of the complainant and examine the witnesses, if any, in strict compliance with the order dated 9.5.1994 of the Hon'ble Supreme Court of India.

(2.) IN brief, the facts are that a complaint was filed by Gopal Krishan, respondent No. 1 against Naresh Kumar, petitioner, under Sections 420/471 I.P.C. on 25.3.1986. A complaint on these very allegations was also made to the S.D.M. as Administrator, Municipal Committee, who on 14.2.1987 got a case registered against Naresh Kumar and his brother Sunil Kumar under Sections 420, 408, 471, 120-B, I.P.C. P.S. Kotwali, Nabha. On 17.7.1987, the learned Magistrate issued process in complaint against Naresh Kumar. Police too filed report under Section 173 Cr.P.C. on 8.2.1988 against Naresh Kumar as well as his brother Sunil Kumar. On 16.7.1988, challan case as well as complaint case were clubbed together and the Magistrate ordered that both the petitions be tried together. On 13.1.1988, the A.P.P. made a statement closing the evidence and on the statement made by A.P.P. the court, by order, closed the evidence of the prosecution. Before the statement of the accused could be recorded or he could be given an opportunity to lead evidence in defence, an application was filed by Gopal Krishan saying that the witnesses named in the complaint have not been examined and thus a request was made that they be examined. On 25.1.1990, a request made by the complainant was allowed and the revision preferred against that order was dismissed by the Additional Sessions Judge, Patiala vide order dated 20.1.1993. Against this order, Criminal Misc. No. 2063 of 1993 was preferred in this Court but the same was dismissed on 18.1.1994. The judgment of this Court is reported in 1994(2) Recent C.R. 406 (Naresh Kumar v. State of Punjab). The petitioner challenged the order of this Court by way of Special Leave Petition in the Supreme Court and the Supreme Court was pleased to pass the following order :-

(3.) FACED with this situation, counsel for the complainant contended that both the cases, i.e. complaint case and challan case, were not clubbed together but were ordered to be tried together and therefore, there is no bar for the complainant to examine the witnesses named in the complaint. He also contended that the allegations made in the complaint are all altogether different than the one made in the police challan case. For this, he placed reliance upon judgments in AIR 1985 S.C. 404 and 1987 Criminal Law Journal 1225. The submissions made by counsel for the complainant are without any merit. At no stage, it was the case of the complainant that both the cases have not been clubbed together rather the Additional Sessions Judge in his order, impugned in this petition has stated in para 11 that "originally the trial Magistrate clubbed together the police challan and the criminal complainant." The other contention of the counsel for the complainant cannot be allowed to be raised as it could be urged before the order had been passed by the Apex Court in S.L.P. The complainant cannot be allowed to reagitate the matter time and again.