GUNANIDHI MEHER Vs. USHA MEHER

JUDGEMENT

(1.) THIS is an application by the accused persons in a complaint case bearing ICC Case No. 70 of 1981 invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') for quashing the cognisance taken against them. The only ground on which the inherent jurisdiction is being invoked is that the principle of autre fois acquit on trained in Section 300 of the Code would apply with full force in view of the earlier order of acquittal in G. R. Case No. 1346 of 1981 wherein on the self -same allegations the petitioners were tried under Section 160, Indian Penal Code, and were acquitted by the learned Magistrate,

(2.) AN application was filed on behalf of the petitioners before the learned Magistrate in the complaint case alleging that the provisions of Section 300 of the Code would apply in the facts and circumstances of the present case, but the learned Magistrate was of the opinion that the offences for which the accused persons have been charged in the complaint case, namely, Sections 323 and 324, Indian Penal Code, are distinct offencss than that of Section 160, Indian Penal Code, for which they were charged in the earlier G. R. Case and, therefore, the provisions of Section 300 of the Code would have no application. The accused a petitioners carried a revision to the learned Sessions Judge who rejected the same without any discussion of law or facts and hence the accused -petitioners have invoked the inherent jurisdiction of this Court.

(3.) THE correctness of the submission of the accused persons as well as the legality of the orders passed by the learned Magistrate and the revisional Court rejecting the prayer of the accused persons is now to be examined in this case. Section 300 of the Code is based on the well -known legal maxim 'nemo debet bis vexari pro eadem causa' i. e., no person should be vexed twice for the same' offence. It is a well established rule of common law that a man should not be put twice in peril for the same offence. {See, Emperor v. Chinna Khaliappa Gounden and Anr., I. L. R. 29 Madras, 126 (F. B). The law Commission in its 41st, Report had observed that where a person has been acquitted or convicted of an offence and a separate charge could have been made but was not made against him in the former trial, he should not be liable to be prosecuted again on the other charge as a matter of course because that might lead itself to abuse. In accordance with the said observations and to provide a check against such abuse, Sub -Section (2) of Section 300 of the Code makes the consent of the State Government pre -condition before a new prosecution is launched on the basis of the earlier facts. The principles underlying the English common law plea of autrefois acquit has been statutorily recognised in Section 300 and when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 221(1) or for which he might have been convicted under Section 221(2), Section 300(1) of the Code operates. The question whether a particular trial is barred by reason of previous prosecution ending in conviction or acquittal is a question to be determined on the facts and circumstances of the particular case. One of the tests is undoubtedly whether the facts are the same or not, but the true test is not so much whether the facts are the sama in both the trials as whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction from the second charge - In order that the accused can avail himself of the protection of Section 300(1) of the Code, two conditions are necessary. There must be a conviction or acquittal and there should be a new trial for the same otfence or for an offence for which he mighc have been charged under Section 221(1) or might have been convicted under Section 221(2). The first part of Sub - Section (1) of Section 300 applies where the offences are the same, but not where the offences are distinct. The contention of Mr. Mishra, the learned counsel for the petitioners, is realive have on the second part of Sub - Section (1) of Sec, 300 of the Code. i.e. same facts for any other offence for which a different charge from the one made against him might have been made under Sub - Section (1) of Section 221'. According to Mr. Mishra, tha allegations in the present rase on the basis of which cognisance has been taken against the petitioners are that accused Dayanidhi assaulted the daughter of the complainant by making her half -naked and both the accused assaulted the complainant and her husband on the same day, i. e., 16. 9. 1931 and at the same time i. e. 9.00 a. m. on the basis of which the earlier G. R. Case had been instituted and tried and the allegation in the G. R. Case was that there was breach of public peace on account of mutual assault on the village road. It is, therefore, necessary to find out how far the petitioners have been able to establish that they are being prosecuted in the complaint case on the same facts which were the subject -matter in the earlier G. R. Case. It is also to be borne in mind that where such an objection is put forward at a preliminary stage, it should be the duty of the Magistrate to hear the evidence and ascertain what are the facts in the two cases in order to determine whether the facts in the present case are the same as those in the previous one.