SHAKIL Vs. STATE OF U.P.

JUDGEMENT

(1.) This petition under Sec. 482, Cr. P. C. (new) has been filed for quashing the proceedings of case No. 68 of 1976 pending in the Court of a Judicial Magistrate at Sitapur. Those proceedings have arisen on the basis of charge-sheet. Annexure No. 2, submitted by Mahmudabad police for petitioners prosecution under Sec. 412, I. P. C. The Magistrate concerned has summoned the petitioner to stand his trial for offences under Sections 302, 394 and 412, I. P. C. in that case. The petitioner contends that his prosecution for the aforesaid offences is barred by Sec. 300 (1), Cr. P. C. (new) and, "therefore, the submission of the aforesaid charge-sheet by the police against the petitioner and his summoning by the Magistrate concerned to stand his trial for the aforesaid offences amounts to an abuse of the process of Court.

(2.) It is not disputed that earlier Mahmudabad police had prosecuted the petitioner and one Matin alias Munna alias "Sultana for offences under Sec. 302/ 34 and Sec. 394, I. P. C. with the allegation that they, along with others, entered into the house of one Imdad Khan and after strangulating his wife to death took away valuable property from Imdad Khans house. On the basis of that charge-sheet the petitioner, Matin and two others were tried by the IV Additional District & Sessions Judge, Sitapur, in connected Sessions Trials Nos. 633 and 633-A of 1976 for offences under Sections 302/34 and 394, I. P. C. On 1-6-1978 the learned Judge convicted the petitioner and Matin alias Munna for those offences and awarded different terms of imprisonment to them. They have filed appeals against their conviction and sentences which are pending in this Court as Criminal Appeal No. 426 of 1978 and Criminal Appeal No. 565 of 1978. A perusal of the judgment of the Sessions Judge pronounced in the aforesaid Sessions Trial shows that the allegation of the prosecution in the aforesaid case was that some articles removed by the robbers, after committing the murder of Imdad Khans wife, were recovered from petitioners possession. The learned Sessions Judge, however, did not frame any charge under Sec. 412, I. P. C. against the petitioner and tried him only for the main offences of murder and robbery and holding him guilty for those offences convicted him for the same.

(3.) In the present impugned charge-sheet, Annexure No. 2 the same facts relating to offences of murder, robbery and recovery of robbed property have been alleged which were alleged in the previous trial wherein the petitioner was tried and convicted under Sec. 302/34 and Sec. 394, I. P. C. In the charge-sheet prosecution of the petitioner was claimed only under Sec. 412, I. P. C. but, somehow or the other, he has been summoned to stand his trial under Sections 302, 394 and 412, I. P. C. The contention of the petitioner is that after his conviction in the earlier trial for offences under Sections 302 and 394, I. P. C. on the basis of the same fact, on which the prosecution is now claimed under Sec. 412, I. P. C., his present prosecution is barred by Sec. 300 (1), Cr. P. C. (new). After hearing the learned counsel for the parties and perusing the material on record I find force in this contention.