PARMANAND Vs. STATE

JUDGEMENT

(1.) THIS is an appeal filed by Parmanand who was convicted Under Section 326, R. P. C. by the Additional District Magistrate, Kathua and was sentenced to two years' 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 stateo, is as follows : Parmanand accused is a resident of Raj Bagh, Tehsil Kathua. He suspected that his wife, Mst. Lajwanti, was unchaste and unfaithful. It is alleged that she had gone to wash her clothes at a water edge. Her husband followed her, caught hold of her by the hand, made her lie prostrate on the ground and chopped her right hand and right foot with a hatchet. One Lekh Raj came to the scene of occurrence and carried Mst. Lajwanti to the Police Station, where the first information report was lodged. It appears that the accused also went to the Police Station and presented the chopped hand and foot to the police. He also presented the axe before the police. The police started Investigation and challaned the accused before the Additional District Magistrate, Kathua. The accused was convicted Under Section 326, R. P. C. and was sentenced to two years' rigorous imprisonment with a fine of Rs. 100/ -. On appeal the learned Additional Sessions Judge found that as the report sent by the police Under Section 173 of the Code of Criminal Procedure to the trial Magistrate did not contain all the particulars required by the said Section and mandatory provisions of Section 190, Cr. PC were not complied with, the entire proceedings before the trial Magistrate were ultra vires. He therefore set aside the proceedings. The accused was set at liberty and it was ordered that if the police wanted to proceed against the accused the procedure indicated in Sections 173 and 190 of the Code of Criminal Procedure ought to be followed. The police prepared a fresh challan in accordance wilh the directions of the learned1 Additional Sessions Judge and presented the same before the Additional District Magistrate, Kathua. The accused was again convicted Under Section 326, R. P. C. and was sentenced to two years' rigorous imprisonment with a fine of Rs. 50/-, as stated above.

(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. Cri 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. PC 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 liad 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. PC was a bar to retflal. Section 403, Cr. PC 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. PC 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. PC Which reads as under : The dismissal of a complaint, the stopping of proceedings Under Section 249, the discharge of the accused or any entry made upon a charge Under Section 273, is not an acquittal for the purpose of this section will not be a bar to fresh trial of the accused. The learned Advocate General has argued that the order of the Additional Sessions Judge setting aside the order of the trial Magistrate on the ground of noncompliance with the provisions of Sections 173 and 190, Cr. PC was not a correct order as the learned Additional Sessions Judge had not found that the accused was in any way prejudiced by such non-compliance. In support of this contention reliance is placed on H. N. Rishbud v. State of Delhi in which it is laid down :