KRISTAPADO BHAKTA Vs. STATE

JUDGEMENT

(1.) This revisional application arises from an order of Sri S. C. Mukherjee, Magistrate, 1st Class, Serampore, convicting the petitioners in a summary trial under Section 427, Penal Code and sentencing each of them to pay a fine of Rs. 25 in default to rigorous imprisonment for one month. There was an order for compensation of Rs. 50/- to be paid to the complainant.

(2.) The case of the complainant Barada Prosad Mete was that on the 9th 'Sravan' 1358 B. S. corresponding to July 1951, the accused petitioners Kristapada Bhakta 'alias' Krishna Pado Bhakta, Mihirlal 'alias' Misri Bhakta and Sarat Chandra Bhakta with other men numbering 12 to 13 forcibly cut the land of the complainant on the common boundary and dismantled the pillars which had been put on the boundary as a result of demarcation after a civil suit, and amalgamated some of the complainant's land with their own land committing mischief to the extent of about Rs. 100/-. The defence case was that no such occurrence had taken place and that a false case had been filed out of enmity. The learned Magistrate accepted the prosecution case and convicted and sentenced the petitioners as described above.

(3.) In this revisional application the first point urged is that on the same facts there was a previous complaint by the complainant opposite party and the accused had been summoned under Section 447, Penal Code but due to default of the complainant the accused petitioners had been acquitted under Section 247, Criminal P. C. and that therefore the present proceedings were incompetent in view of Section 403, Criminal P. C. In support of this contention, reference has been made to the case of--'Fazzar Pramanik v. King Emperor', AIR 1923 Cal 407 (A). In that case the petitioner was originally summoned to answer a charge under Section 426, Penal Code. He was acquitted under Section 247, Criminal P. C. on the ground of absence of the complainant. On a fresh complaint the petitioner was summoned under Section 379, Penal Code instead of Section 426, Penal Code. It was held that the fresh proceedings were barred under Section 403, Criminal P. C. Section 403 (1) provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall 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 might have been made under Section 236 or for which he might have been convicted under Section 237. Sub-section (2) of the same section provides that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1), Criminal P. C. In the case of --'Pazzar Pramanik v. King Emperor', (A) cited above, it is clear that the case was considered as one coming within Sub-section (1) of Section 403. On the same facts it might be doubtful whether an offence under Section 426 or 379, Penal Code had been committed, e. g., when standing crops were cut wrongfully from the land and it is uncertain whether the crops were ripe or not. When the offences are not such as come within the scope of Section 238 or Section 237, Criminal P. Code but they are distinct offences committed in the course of the same transaction within the scope of Section 235 (1) Criminal P. C., a fresh trial is not barred, because the case comes under Sub-section (2) of Section 403, Criminal P. C. This point was explained in the case of -- 'Saroda Devi v. Satyeswar Santra', AIR 1935 Cal 571 CB). It was held that where a complaint filed disclosed several offences and the accused was summoned for one of the offences and in default of the appearance of the complainant the accused was acquitted, a fresh complaint, in respect of other offences though arising on the same facts was not barred. This case was one coming within Sub-section (2) of Section 403 taken with the bar of Section 235 (1). This principle was further affirmed in the special Bench case of -- 'Jitendra Nath v. Emperor', AIR 1937 Cal 99 (C), and this was approved also by the Pull Bench in the case of -- 'Pumananda Das Gupta v. Emperor', AIR 1939 Cal 65 (D), Mr. Chatterjee appearing for the petitioners has referred to a recent ruling in the case of -- 'Konai Hizra v. Golap Hizra', AIR 1953 Cal 197 (E), but this was also clearly a case under Section 236 or 237, Criminal P. C. and was therefore one governed by Sub-section (1) of Section 403, Criminal P. C. Mr. Chatterjee has also argued that the present case also really falls within the scope of Section 236 or 237, Criminal P. C., as the allegations were criminal trespass with the intention to commit mischief and committing mischief. Even if it be conceded that it was a case of criminal trespass with the intention to commit mischief, the offence of mischief is a distinct offence arising from the transaction and therefore the case is clearly one falling under Section 235 (1) and not under Sections 236 or 237, Criminal P. C. where it is merely doubtful which of several offences had been committed. Accordingly we find that the present proceeding was not barred under Section 403, Criminal P. C.