JAMES NADAR Vs. JOSHUVA

JUDGEMENT

(1.) Accused Nos. 1 to 3 in P.E. No. 1 of 1123 on the file of the First Class Magistrate's Court at Kuzhithurai are the revision petitioners. The third accused is a daughter of the first accused. The second accused is the husband of the third accused. The first accused has another daughter by name Rajathankam and the complainant in the case claims to be the husband of this Rajathankam. He has filed this complaint against the decree accused on the allegation that on 15th Mithunam 1119 they enticed away Rajathankam from his house with the object of marrying her to the second accused, that they have refused to send her back to him, that herself and the second accused are living as man and wife in the house of the first accused and that the ornaments and other articles which he had given to Rajathankam have also been wrongfully removed from his house by the accused. The compalint was filed on 10th Chingom 1123 for the alleged offences of abduction punishable under S. 306 and also of theft punishable under S. 380 of the Travancore Penal Code. On the identical allegations contained in the present complaint, another compalint had been filed against these accused by the same complainant as C.C. 22 of 1120 on the file of the First Class Magistrate's Court at Padmanabhapuram. Ext. III is the copy of that complaint as well as of the order passed by the Magistrate dismissing that complaint under S. 201 of the Travancore Criminal Procedure Code. In that complaint the accused were stated to have committed the offence of enticing away and detaining a married woman with criminal intent punishable under S. 501 of the Travancore Penal Code. The present second accused was also stated to have committed the offence of adultery punishable under S. 500 of the same Code. After considering the sworn statement of the complainant, the Magistrate came to the conclusion that no sufficient ground had been made out for proceeding with the case and accordingly he dismissed the complaint under S. 201 of the Criminal Procedure Code. The present complaint on the identical allegations having been filed nearly three years subsequent to the date of that order, was challenged by the accused as frivoulous and vexatious and as an abuse of the process of court. They put in a petition before the lower court for a dismissal of the complaint on that ground. The lower court rejected that petition. The accused have therefore, come up in revision before this Court.

(2.) At the common law an accused who has once been tried and acquitted of a crime cannot be tried again for the same offence. This rule of 'autrefois acquit is embodied in S. 334 of the Travancore Criminal Procedure Code corresponding to S. 403 of the Indian Code. For the application of this rule three essential conditions have to be satisfied, namely (1) there must have been a trial of the accused for the offence charged against him, (2) the trial must have been by a court of competent jurisdiction and (3) there must have been a judgment or order of acquittal. Where these three conditions are satisfied a subsequent trial of the accused can be successfully resisted by him on the plea of 'autrefois acquit'. Even though the petitioners in the present case are being prosecuted for substantially the same offences based on the identical allegations as were levelled against them in Ext. III complaint, they are not entitled to claim the protection afforded by S. 334 of the Criminal Procedure Code for the simple reason that there was no acquittal after trial on the basis of Ext. III complaint. That complaint was dismissed under S. 201 of the Criminal Procedure Code, on the Magistrate being satisfied on a consideration of the sworn statement of the complainant, that no sufficient ground had been made out for taking further proceedings in the case. Such a dismissal of the complaint cannot be deemed to result in an acquittal of the accused as contemplated by S. 334 of the Criminal Procedure Code.

(3.) It is contended by the learned advocate for the petitioners that even though the plea of 'auterfois acquit' may not be strictly available to the accused in the present case they are entitled to invoke the inherent power the of this Court under S. 470 of the Criminal Procedure Code corresponding to S. 561 (a) of the Indian Code and to pray for an order to quash the proceedings started against them in this case. S. 470 runs as follows: