BIRENDRA KUMAR CHOUDHURY Vs. ASHUTOSH ADHIKARI

JUDGEMENT

(1.) THIS is a criminal reference under Section 438 Cr. P. C., made by the learned Sessions Judge, Tripura by means of his order dated 2nd June 1955 in criminal motion no. 12 of 1955 recommending that the order passed by the learned S. D. M., Dharmanagar Sri N. K. Sinha dated 19th March, 1955, by which the complaint dated 30th December, 1954 was rejected on the ground that a fresh case could not be started upon the same facts as had been alleged by the complainant before the Court in a prior complaint which formed the basis of criminal case no. 61 of 1954 and in which the accused were discharged on 2nd August 1954 after the complainant's evidence had been recorded on material points by the learned Magistrate.

(2.) IT appears that the present petitioner at first brought a complaint in the Court of the S.D.M., Dharmanagar under Section 379 I. P. C., against the opposite parties complaining that the latter had cut and removed bamboos grown on the land of the petitioner on 6th March 1954. This complaint was registered as criminal case no. 61 of 1954 and it was transferred to Sri N. Sinha, Assistant Magistrate for disposal. Evidence was adduced by the complainant in order to prove the allegations made in the complaint but the learned Magistrate discharged the accused on 2nd August 1954 on the ground that the evidence adduced was not sufficient to establish a prima facie case against the opposite parties.

(3.) THE next question which is of considerable importance in this case is whether the order passed by the learned S. D. M. can be deemed to be correct under Section 403 Cr. P. C. The order in question does not amount to an order of acquittal and as Section 403 merely creates a bar against persons once convicted or acquitted for not being tried again for the same offence, this section cannot help the opposite parties in the present case.