BASUDEO HISSARIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Section 561-A of the Code of Criminal Procedure (hereinafter referred to as 'the Code') has been filed by the two petitioners against an order of Sri D. N. Prasad. Munsif Magistrate Sadar Monghyr dated the 18th March. 1971 refusing to drop the proceeding against them under the provisions of Section 403 of the Code.

(2.) IN order to appreciate the point involved in this application, it will be necessary to state briefly the facts. Janardan Gir, the Labour Officer who is Opposite Party No. 2. on the 6th September 1967 in official discharge of his duties, went to inspect various shops located at Sadar Bazar Jamalpur, Police-station Monghyr under the Bihar Shoos and Establishments Act. 1953 and after inspecting some shops, opposite party no. 2 entered the shop of petitioner no. 2, at 9. 30 p. m. of the day. Petitioner no. 2 is the owner of the shop whereas petitioner no. 1 possibly is a friend of petitioner no. 2. The shop deals in ready-made garments. Petitioner no. 1 thereafter came along with 50 to 60 per-sons and stopped Opposite party No. 2 from performing his official duties, whereas petitioner no. 2 refused to produce the records of the shoo before opposite party no. 2. and it is alleged that he also abused opposite party no. 2 and stated that he could not inspect the shop at that hour of the night. Subsequently opposite party no. 2 lodged Sanaha (Ext. 4) on the same date. i. e. on the 6th September 1967 at 10 p. m. The Officer IN charge of the Police-station submitted report on the 10th September 1967 against the two petitioners. The Sub-divisional Magistrate. Monghyr. took cognizance for an offence under Section 186 of the INdian Penal Code against the petitioners and transferred the case to Sri D. N. Prasad, Munsif Magistrate. Monghyr, for disposal. IN that proceeding the petitioners were, however, acquitted by an order of the Munsif Magistrate dated the 2nd March 1970. a true copy of which is marked Annexure "1" to the application before this Court, mainly on the ground that opposite party no. 2 being a public servant, it was for him to have lodged a complaint under the provisions of Section 195 (1)(a) of the Code before the Sub-divisional Magistrate. He could not have lodged the Sanaha before the Officer IN charge of the Police-Station. Consequently a formal complaint was filed by Opposite party no. 2 before the Subdivisional Magistrate on the 11th May 1970, who took cognizance for an offence under Section 186 of the INdian Penal Code and transferred the case to Sri D. N. Prasad. the said Munsif Magistrate for disposal. Thereafter on the 22nd May 1970. the transferee court issued processes against the petitioners under Section 204 of the Code and on the 28th May 1970, the petitioners filed a petition before him to drop the proceeding chiefly on the ground that once when they had been acquitted of the offence, they could not be tried again for the same offence in contravention of the provisions of Section 403 (1) of the Code. The learned Magistrate, however, held that on the evidence, facts and circumstances of the case, the earlier proceeding was not valid under the law as it was not filed before a competent Court, and. therefore, the subsequent trial was not barred for the same offence under Section 403 (1) of the Code. He therefore, rejected the petition of the petitioners and passed the impugned order.

(3.) I will take up for consideration point no. 1 first. In the instant case the cognizance taken in the first trial was not valid and. therefore, the trial of the petitioners on an invalid cognizance was also bad. In that view the petitioners were never tried on the first occasion by a Court of competent jurisdiction Section 403 (I) of the Code makes it amply clear that for a bar of second trial, it is essential that the first trial ought to have been by a court of competent jurisdiction. In that view of the matter, the learned Magistrate by the impugned order has rightly held that the second trial was not barred under Section 403 of the Code.