NANDLAL DAHYALAL SHAH Vs. LALCHAND MOTICHANDBHAI

JUDGEMENT

(1.) The petitioners in this application were the original accused against whom a complaint was filed by the opponent No. 1 before the learned Judicial Magistrate First Class Dhandhuka. In the said complaint it was alleged that the accused had committed certain acts which were punishable under secs. 341 114 and 452 of the Indian Penal Code. After reading the complaint the learned Magistrate thought it fit to issue process against the accused persons for offences under secs. 341 & 114 I. P. C. only. For the reason which is not disclosed the learned Magistrate did not issue process for the offence under sec. 452 I. P. C. The process was ordered to be issued on 19/05/1981 and the Notice was made returnable on 11/06/1981 After that what happened in the Court is not brought on the record of this case. However the learned Magistrate passed an order on 18/11/1981 stating that the complainant was not present in the Court and the complaint was dismissed due to his absence and the accused were set at liberty.

(2.) Subsequently a second complaint was filed by the opponent No. 1 in the same court against the same accused on the same facts set out in the earlier complaint. On the second application the learned Magistrate has issued process not only under secs. 341 and 114 I. P. C. but also under sec. 452 I. P. C. The present applicants have filed this petition to quash and set aside the said proceedings being Criminal Case No. 973 of 1981 pending in the court of Judicial Magistrate First Class Dhandhuka.

(3.) It is argued by Mr. H. L. Patel the learned Counsel for the applicants that the earlier order dated 18/11/1981 passed by the learned Magistrate on the previous complaint was passed under sec. 256 of the Criminal Procedure Code and that it was an order of acquittal and therefore there was a bar of sec. 300 against the second complaint for the same incident. Mr. H. L. Patel as well as Mr. A. J. Patel the learned Public prosecutor who is in this case supporting the arguments advanced by Mr. H. L. Patel submit that the second complaint having been based on the same facts as set out in the first complaint is not maintainable although the earlier process was issued only for the offences punishable under secs. 341 and 114 I. P. C. because according to them the language of sec. 300 is quite clear that a person cannot be tried again when he is once acquitted and while that acquittal is still in force for the same offence or for any other offence based on the same facts. Against this submission of Messrs H. L. Patel and A. J. Patel Mr. M. M. Dave the learned Counsel for the respondent No. 1 has urged that the present case does not come within the purview of sec. 300 for several reasons. According to him the order dated 18/11/1981 does not amount to acquittal and even if it is construed to amount to acquittal it would be only an acquittal for the offences for which the process was issued namely under secs. 341 and 114 but it cannot amount to an acquittal for the offence under sec. 452 for which no process was issued and also for the reason that the offence under sec. 452 of the I. P. C. being a warrant triable case there cannot be an acquittal. Mr. Dave has also argued that in this case there is actually no trial because the case had not reached the stage of hearing on merits. It was only at the initial stage. According to him the word trial in sec. 300 of the Criminal Procedure Code contemplates the hearing of the case on merits. Unless a case is heard on merits and decided on the evidence led before the court it cannot be said to be a trial to give the accused persons an immunity from being tried over again.