STATE Vs. BANSU

JUDGEMENT

(1.) The applicants in this case have come up in revision to this Court from an order of the learned Additional Sessions Judge of Juunpur dismissing an application that they filed before him. I propose to set out the relevant facts so that the point involved may be clearly stated.

(2.) On 5th July 1947, one Ram Laut filed a complaint against the applicants under Section 325 read with Section 379, Penal Code, in the Court of the Sub-Divisional Magistrate, Jaunpur. On the same date, the Magistrate transferred the com-plaint to the Court of a Tahsildar Magistrate. The Tahsildar Magistrate took evidence under Section 202, Criminal P. C. and summoned the accused fixing 8th August 1947, for hearing. The case could not be taken up earlier and on 24th September 1947, the Tahsildar Magistrate examined a few witnesses for the prosecution, framed the charge and gave the applicants an opportunity to farther examine the prosecution witnesses. 10th October 1947 was fixed for this purpose, but on that date he reserved an order to transfer the case to the Court of a Special Magistrate, Shri Sundari Prasad, This case was put before Shri Sundari Prasad on 20th October 1947, and the applicants claimed a "de novo trial." Shri Sundari Prasad fixed 3rd 'November 1947, for the purpose, but as on that date the complainant was absent he dismissed the complaint and discharged the applicants. On that very date, however, the complainant filed a fresh complaint on those very allegations before the Sub-Divisional Magistrate of Jaunpur against the applicants. The Sub. Divisional Magistrate transferred this case also to the Court of Shri Sundari Prasad for disposal. In the meantime Shri Sundari Prasad ceased to be a Magistrate and the case was transferred to the file of another Magistrate Shri Srivastava. On 20th December 1947, Shri Srivastava summoned the applicants under Section 323 read with Section 379, Penal Code.

(3.) The applicants took the plea that the order of discharge of 3rd November 1947, amounted to an acquittal and the fresh complaint filed on the same date was barred under the principle of autre fois acquit. The learned Magistrate came to the conclusion that Section 403, Criminal P. C., was inapplicable to the facts of this case and overruled the applicants' objection.