Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 237 OF 2020
(Arising out of S.L.P.(Crl.)No.4592 of 2017)
PREM CHAND SINGH ..........APPELLANT(s)
Versus
THE STATE OF UTTAR PRADESH
AND ANOTHER ......RESPONDENT(s)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellant has challenged the order dated 18.12.2015
rejecting his application for discharge and the affirmation of
the same on 31.05.2016 in Criminal Revision No. 70 of 2016
th
by the 4 Additional Sessions Judge, Gonda (U.P.).
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2020.02.07
16:46:20 IST
Reason:
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3. The respondent no.2 is stated to have given a general
power of attorney to the appellant on 02.05.1985 and on the
basis of which the appellant sold certain lands belonging to
the respondent. The respondent lodged FIR No. 160 of 1989
on 14.09.1989 that he had never executed any general power
of attorney in favour of the appellant and that the appellant
has forged general power of attorney to sell his lands illegally.
The appellant was acquitted in the trial as the charge could
not be established. Though no records are available, the
acquittal is not disputed by counsel for respondent. The
respondent then filed Civil Suit No. 353 of 2007 to cancel the
general power of attorney. On 09.10.2008, the respondent
filed an application under Section 156(3) Cr.P.C. before the
court which was forwarded to the police leading to registration
of FIR No. 114 of 2008 on 09.10.2008 alleging that the
appellant had forged general power of attorney and on the
basis of the same had sold certain lands of the respondent.
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That earlier also the appellant had sold lands of the
respondent in like manner.
4. The appellant filed an application for discharge referring
to his acquittal dated 07.08.1998 under Section 419 or 420
Cr.P.C. pleading that he could not be tried for the same
offence twice and that the FIR was based on concealment of
facts with regard to the earlier acquittal. The Judicial
Magistrate Class II Gonda rejected the discharge application
simplicitor on the ground that the order of acquittal dated
07.08.1998 had not been brought on record. Revision against
the same was dismissed holding that the grounds urged on
behalf of the appellant can more appropriately be urged at the
time of framing of the charges.
5. Mr. Pradeep Kant, learned senior counsel appearing for
the appellant, submitted that the order of acquittal dated
07.08.1998 and the subsequent institution of Civil Suit
No.353 of 2007 for the cancellation of the general power of
attorney executed by the respondent is not in dispute. The
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subsequent FIR on 09.10.2008 itself refers to the general
power of attorney which was the subject matter of FIR No. 160
of 1989 but conceals the order of acquittal of the appellant. It
is submitted that in the facts of the case, the institution of the
FIR on 09.10.2008 long years after execution of general power
of attorney dated 02.05.1985 is, therefore, a complete abuse of
the process of law and the proceedings are fit to be quashed.
Referring to Section 300 Cr.P.C. it is submitted that the
appellant could not have been tried for the same offence twice
at the behest of the respondent who is the complainant
himself in both the FIRs.
6. Mr. Amit Yadav, learned Counsel for the respondent
complainant, submits that the High Court has declined
interference since the ingredients of the two FIRs were
different. While the FIR No. 160 of 1989 was under Section
419 or 420 IPC the second FIR was under Sections 467, 468
and 471 also. Furthermore, the second FIR contains
allegations that the appellant put up an imposter in place of
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the respondent before the registration authorities and
collusively executed sale deed in respect of his lands along
with Sushil Kumar Singh and Arvind in pursuance of a
general power of attorney which respondent had never
executed. The discharge application was, therefore, rightly
rejected and interference declined in revision.
7. We have heard learned counsel for the parties.
8. The FIR No. 160 of 1989 alleges that the respondent on
account of his job invariably stayed outside. The appellant
had created a forged general power of attorney from the
respondent in his name with regard to his lands bearing Gata
no. 77/0.87 decimal and sold it on the basis of the forged
general power of attorney which the respondent became aware
of on 25.07.1989. The respondent denied having ever
executed any general power of attorney in favour of the
appellant. The respondent does not dispute that the appellant
was acquitted of the charge by judgment dated 07.08.1998.
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The fact that the judgement may not have been made available
is therefore inconsequential.
9. The institution of Civil Suit No. 353 of 2007 by the
respondent for cancellation of the general power of attorney,
after the acquittal of the appellant, is nothing but an
acknowledgment of the genuineness of the general power of
attorney executed by the respondents which he now wished to
revoke.
10. The respondent then filed an application under Section
156(3) Cr.P.C. which was forwarded by the Magistrate to the
police leading to registration of FIR dated 09.10.2008. The
allegations are similar that the appellant put up an imposter
in place of the respondent and along with one Sushil Kumar
Singh and Arvind on the basis of a general power of attorney,
which the respondent had never executed, sold his lands. The
FIR itself recites that earlier also the appellant had sold the
lands of the respondent on the basis of same general power of
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attorney, but conceals the order of acquittal dated 07.08.1998,
and also the institution of Civil Suit No. 353 of 2007 for
annulment of the same.
11. It is, therefore, apparent that the subject matter of both
the FIRs is the same general power of attorney dated
02.05.1985 and the sales made by the appellant in pursuance
of the same. If the substratum of the two FIRs are common,
the mere addition of Sections 467, 468 and 471 in the
subsequent FIR cannot be considered as different ingredients
to justify the latter FIR as being based on different materials,
allegations and grounds.
12. Section 300 of the Cr.P.C. provides as follows:
“300. Person once convicted or acquitted not to be
tried for same offence.
(1) A person who has once been tried by a Court of
competent jurisdiction for an offence and
convicted or acquitted of such offence shall,
while such conviction or acquittal remains in
force, not be liable to be tried again for the
same offence, nor on the same facts for any
other offence for which a different charge from
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the one made against him might have been
made under subSection (1) of Section 221, or
for which he might have been convicted under
subSection (2) thereof.”
13. In view of the conclusion that the substratum of the two
FIRs are the same and that the appellant has already stood
acquitted on 07.08.1998 of the charge with regard to forging
any general power of attorney of the respondent, we are of the
considered opinion that the subsequent prosecution of the
appellant in FIR No. 114 of 2008 dated 09.10.2008 is
completely unsustainable. In the result, the FIR dated
09.10.2008, the orders dated 18.12.2015, 31.05.2016 and the
impugned order dated 01.03.2017 are set aside. The appeal is
allowed.
……….………………………..J.
(Navin Sinha)
………………………………….J.
(Krishna Murari)
New Delhi,
February 07, 2020
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