NARASINGHA ROUT Vs. RAMESWAR MOHAPATRA

JUDGEMENT

(1.) THIS is a revision petition against the order of the Sub-Magistrate of Kodala, summoning the petitioners for an offence under Section 380 I. P. C.

(2.) ON 27-4-1956 the opposite party Rameswar Mohapatra filed a complaint in the court of the Sub-Magistrate of Kodala against the petitioners, alleging that on 254-1958 petitioner Narasingh Rout and his helpers broke open the lock put by the opposite party to his house in village Sikulia, entered the house, took away food grains and other articles kept there, and put their own lock. The learned magistrate sent the petition to the local Police for immediate enquiry and report. It was registered as C. C. No. 14 of 1956. The Police report was to the effect that there was prima facie evidence to show that on 25-4-1956 the lock put by the opposite party was broken open and petitioner Narasingha Rout put his own lock to the house. As regards the removal of the properties, as mentioned in the complaint petition, the Police report was to the effect that this allegation was not proved well. On receipt of this report the learned Sub-Magistrate thought that there was a prima facie case under Section 426 I. P. C. against all the petitioners and hence issued summons against them. On 21-9-1956, the complainant (opposite party) was absent and thereupon the learned Magistrate acquitted all the accused persons, under Section 247 Cr. P. C. On 6-10-1956, the same complainant filed another petition before the Taluk magistrate of Kodala (C. C. No. of 1956) requesting him to issue process against the petitioners for an offence under Section 380 I. P. C. in respect of the removal of food grains and other articles from the house on 25-4-1956. The learned magistrate felt some doubt as to whether a second case, on the same facts would lie in view of the previous acquittal and issued preliminary notice to the petitioners for decision of this question. On 7-12-1956 after hearing the parties and perusing the records of the previous case he thought that a second case would lie for the offence under Section 380 I. P. C. in view of Sub-section (2) of Section 403, Cr. P. C. and directed issue of process against all the petitioners for an offence under Section 380 I. P. C. The petitioners went up in revision to the Sessions Judge who upheld the order of the magistrate.

(3.) THE main question for consideration is whether in view of the acquittal of the petitioners under Section 247 Cr. P. C. on 21-9-1956 in C. C. No. 14 of 1956 a fresh case for an offence under Section 380 I. P. C. could be started against them in C. O. No. 70 of 1956 on the same facts. In the first complaint the facts alleged were that (i) the petitioners broke open the lock put by the opposite party and (ii)they removed, food grains and other articles from the house of the opposite party. The enquiry report was to the effect that the removal of food grains and other articles was not proved, but that the breaking open of the lock of the opposite party was established. The Magistrate then took cognizance only of the offence under Section 426 I. P. C. which ended in acquittal due to the absence of the complainant on the date fixed. In the second complaint also, the same facts were alleged, viz. , the breaking open of the lock and the removal of articles from the house, and the learned Magistrate thought that he could take cognizance of the offence under Section 380 I. P. C.