BEJOY DUTTA Vs. KING

JUDGEMENT

(1.) The facts which it is necessary to state in connection with this rule briefly are as follows : One Mahamaya Dasi filed a petn. of complaint on 24-7-1948 against the petnrs. The allegations made against them were that on the day of the solar eclipse, the 26th of Raisakh between 9 & 10 A. M. the petnrs. assaulted her with blows & slaps. The assault was a result of a dispute which had arisen between her & the petnrs. who were her tenants. Upon this complaint being filed the accused were summoned under Section 352, I. P. C. On a date fixed for hearing the complainant was absent & the accused were acquitted in accordance with the provisions of Section 247, Cr. P. C. Thereafter on 23-10-1948 a second complaint was filed by Mahamaya Dasi against these petnrs. with respect to the same occurrence & making virtually the same allegations against them. In this petn. the place of assault was stated. It was said that Mahamaya was assaulted in her kitchen. In the former case no mention of the place of the assault had been made. Upon this petn. being filed, the accused were summoned to answer charges punishable under Sections 323 & 504, I. P. C. They have obtained this Rule against this order & their case is that having regard to the fact that they were acquitted in respect of this occurrence in the former case they could not be tried again upon the present complaint. They invoke the aid of Section 403, Cr. P. C. as a bar to this trial. Learned Advocate appearing on behalf of the opposite party, Mahamaya Dasi, argues that although the petnrs. were acquitted in the proceedings instituted on the first complaint of 24-7-1948 there is no bar to their being tried again on the second complaint having regard to the provisions of Sub-section (2) of Section 403, Cr. P. C. He contends that on the facts alleged in the second complaint a case of criminal trespass has been made out & the petnrs. may be tried for criminal trespass.

(2.) It will now be necessary to set out the relevant provisions of the Code. Section 403, Sub-sections (1) & (2) are in the following terms :

(3.) Section 235 (1) is as follows :