PARMANAND Vs. STATE

JUDGEMENT

(1.) THIS is an appeal filed by Parmanand who was convicted under section 326, RPC by the Additional District Magistrate, Kathua and was sentenced to two yearsâ„¢ rigorous imprisonment with a fine of Rs.50. His appeal was dismissed by the Additional Sessions Judge and he has come up in further appeal to this Court.

(2.) THE prosecution case, briefly stated, is as follows:

(3.) IN the grounds of appeal the accused has mentioned that he was previously acquitted in appeal by the learned Additional Sessions Judge and his retrial was illegal. From a perusal of the order of the Additional Sessions Judge it is clear that no order of acquittal was passed by him in appeal. On the other hand, he had clearly stated that as the challan presented by the police was not in accordance with the provisions of sections 173 and 190, Cr. P.C. the entire proceedings before the trial Magistrate were ultra vires and while setting aside the conviction and sentence of the accused he observed that if the police wanted to proceed against the accused the procedure laid down in sections 173 and 190 of the Code of Criminal Procedure ought to be followed. Because the Additional Sessions Judge had quashed the conviction and the sentence and had ordered that the accused be set at liberty it is contended that the order of the Additional Sessions Judge amounted to an acquittal and section 403, Cr. P.C. was a bar to retrial. Section 403, Cr. P.C. provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor 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 236, or for which he might have been convicted under section 237. The question is whether the previous judgment of the Additional Sessions Judge in appeal from previous conviction was an acquittal of the appellant after his trial by a Court of competent jurisdiction as contended by the appellant. The learned Additional Sessions Judge had not recorded an order of acquittal but merely on a preliminary point without going into the merits held that the trial was vitiated on account of non -compliance of the provisions of sections 173 and 190, Cr. P.C. and directed the police to present a fresh challan in accordance with the provisions of the above sections. It cannot, therefore, be said that the previous order of the appellate Court was an order of acquittal on merits. If the appellate Court finds that an order of the trial Magistrate is irregular or improper and sets aside the conviction of the accused, that order would amount to an order of discharge of the accused and not order of acquittal and under the Explanation to section 403, Cr. P.C. which reads as under :