STATE OF H.P. Vs. MEHAR SINGH

JUDGEMENT

(1.) In this revision petition the State has challenged the order dated 4th December, 2004 passed by the learned Special Judge, Chamba in case C.C. No. 2 of 2002 dismissing the States application for re -investigation of the case filed under Section 173(8) of the code of Criminal Procedure.

(2.) After hearing the detailed arguments of Mr. Mattewal, learned Senior Counsel appearing for the State, I feel that the order under challenge in this petition does not suffer from any illegality, irregularity or infirmity. Apparently the application for permission to re -investigate the matter filed in terms of Section 173(8) of the Code of Criminal Procedure has been made (as has been also held by the learned trial Court) either with a view to delay the progress in the prosecution case or perhaps with a view to help the accused persons. I am saying so because by a careful perusal of the application itself, I found that in the application the State has not spelt out or disclosed as to which factual aspects of the matter require re -investigation by the State. In the garb of re -investigation all that the State has been agitating in the application is about the consideration or reconsideration of the judgment passed by the Division Bench of this Court in CWP No. 1732 of 1995, the Reply filed by the State in the aforesaid writ petition as well as the reply filed by the state or the private individuals in Civil Suit No. 42 of 1997 before the Court of learned Sub Judge, Dalhousie. Para 2 of the application being apposite, giving an indication of the States mind, is reproduced hereunder for ready reference It reads thus: - "That the facts reveal that the Revenue Department of State of H.P. had filed a reply in C.W.P. No. 1732/1995 titled as Kuldeep Singh v. State of H.P. earlier and also in the Civil Suit titled as Rakesh Pathania v. Brijinder Singh pending in the Court of Id. Sub Judge, Dalhousie and both these replies are consistent The Honble Supreme Court of H.P. while relying upon the reply filed by the State of H.P. had accepted the stand taken by the respondent/State of H.P. as per the judgment dated 26.7.1996. The stand of the State Government was based upon the Revenue Records which is in existence even now. Whereas, instant criminal case was registered subsequently i.e. in the year of 2001, without even taking into consideration the earlier replies and one filed by the State Government in C.W.P. No. 1732/1995 and another in Civil Suit No. 42/97, giving entirely different version. This conflict cannot be resolved unless the matter is further investigated and correctness of the facts is ascertained."

(3.) Repeatedly, the State has been taking the stand that it had to clarify some "conflict" that the State thought existed between the States version as might have been projected in the aforesaid Division Bench judgment of this Court in CWP No. 1732 of 1995 or as might have been projected in the replies filed by the State in the aforesaid writ petition or in the aforesaid suit and some imaginary or imagined conflict which the State thought was in existence vis -a -vis the prosecution case in the aforesaid criminal trial. If there indeed is or has been a conflict that is for the trial Court to sort out or to decide. The trial Court at the stage of framing of the charge against the accused persons is bound to hear the accused persons to find whether a prima fade case existed warranting the framing of charge against the accused persons. It is for the accused persons to urge before the trial Court that there is some conflict (if at all) and that the accused are entitled to any benefit relating to or arising out of such a conflict, if such a benefit to or arising out of such a conflict, if such a benefit can be given to them in law. Resolution of the conflict with reference to any earlier stand taken, if at all, by the State in the civil proceedings vis -avis the prosecution story in the criminal case is not and cannot be a matter for re -investigation. The State also seems to have made an untenable and unsuccessful attempt in misleading the Court by referring to "certain documents" of "vital importance" in para 4 of the application for re -investigation. I quote para 4 of the Application, which reads thus: - That during the course of trial the accused persons had produced certain documents which are of vital importance. These documents can have extreme adverse effect on the prosecution case. The investigating agency did not examine the impact of these documents during the course of investigation. The examination of these documents with the help of other contemporaneous documents is essential to ascertain the actual factual positions, which exist in this case. Apart from this, there may be some other record available which may support the prosecution case by undoing the effect of document record produced by the accused. This is also an additional ground present in this case, which necessitates for the investigation under Section 173(8) Cr.P.C. for the purpose of arriving at a just conclusion."