STATE OF RAJASTHAN Vs. SALEEM

JUDGEMENT

(1.) THIS appeal against the judgment of Judicial Magistrate No. 3, Jodhpur dated July 16, 1977 raises a very short legal question regarding the applicability of s. 300 Cr. P. C.

(2.) THE facts leading to this appeal briefly stated are that the complainant Mohd. Ishaq was living in his sister's house situated at Subhash Chowk, Ratanada, Jodhpur for the past about 14 years. It is alleged that his brother Saleem and his son Safiq came to his house on December 21, 1975 and December 26,1975 and asked him to vacate the house. When he did not agree to their request, Saleem and Safiq gave beating to him, opened the lock of his house and ousted him from it on February 8, 1976. He lodged a report about this incident in the Police. After usual investigation, the Police filed a challan under s. 453 I. P. C. However, he also filed a private complaint regarding the same offence in the court of Judicial Magistrate No. 2, Jodhpur. THE case was registered against the accused-persons under ss. 323, 427 and 451 I. P. C. After summoning of the accused - persons, the case was fixed for the evidence of the complainant on October 5, 1976. THE case was registered as Private Complaint No 17 of 1976. On October 5,1976, the complainant was absent and the accused-persons alongwith their counsel were present. In the absence of the complainant, the learned Magistrate dismissed the complaint under s. 256 Cr. P. C. and acquitted the accused-persons of the offences under s. 323, 451 and 427 I. P. C. THEreafter, in the case filed on police report which was registered under. 453. I. P. C. an application was moved on behalf of the accused-persons that for the same offence they have already been acquitted by the Court of Judicial Magistrate No. 2, Jodhpur on October 5, 1976 and, therefore, this prosecution is now barred under s. 300 Cr. P. C. This application was moved at the stage when the case was fixed for prosecution evidence. THE learned Magistrate held that the second trial of the accused-persons for the same incident is barred under s. 300 Cr. P. C. as they have already been acquitted. Aggrieved against this judgement, the State has preferred this appeal.

(3.) IN Prematha Nath V. Saroj Ranjan (6), it was observed by their Lordships of the Supreme Court as follows: "an order of dismissal under s. 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e. g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. " Their Lordships of the Supreme Court in Mohd. Safi vs. State of West Bengal (7) have been pleased to lay down as follows : "the provisions of s. 403 are based upon the general principle of autrefois acquit recognised by the English Courts. The principle upon which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle is incorporated in Art. 20 of the Constitution. Where the accused person was not liable lawfully to be convicted at the first trial because the Court lacked jurisdiction, the defence of autrefois acquit has no application. " Sitaram Sao's case (supra) pertained to the trial of a totally different and distinct offence from the one of which the accused was acquitted in the earlier trial. It has been provided in s. 300 Cr. P. C. , itself that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence may be afterwards tried with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-s. (1) of s. 220. Thus, the section itself supports the authority of the Patna High Court (Sitaram Sao's case Supra ). IN that case, there was no trial for the offence under s. 436 I. P. C, which could be tried only by a Court of Sessions and, therefore, it was held that even if the accused was acquitted of the offence under s. 342 I. P. C, he can again be prosecuted on a fresh complaint for the offence under s. 436 I. P. C. IN the case on hand, the occurrence is one and the same. The complainant availed two remedies at the same time to redress his grievance against his brother and nephew. Firstly, he lodged a F. I. R. in the Police and secondly, he filed a private complaint in the Court. The crux of the offence was that he was beaten and has been ousted from his house and his belongings have been thrown away. On this allegation, the learned Judicial Magistrate registered a case under ss. 323, 451 and 427 I. P. C. However, the Police challaned the case under s. 453 I. P. C. IN the case filed on a private complaint, the complainant was absent on October 5, 1976 and, therefore, the accused-persons were acquitted of the offence under ss. 323,451 and 427 I. P. C because all these three offences were required to be tried in a summons case trial as they were not punishable with an imprisonment for over a period of 2 years. Now till this acquittal remains in force and is not set aside by a superior court, s. 300 Cr. PC. specifically bars the trial of the accused-persons on the same allegation in a different case. The cases of discharge and dismissal of complaints are to be distinguished from acquittal of an accused in summons case trial. Much stress has been laid on the fact that s. 300 Cr. P. C. provides that to press into service the principle of autrefois acquit, the accused must have been tried by a court of competent jurisdiction and after he is either convicted or acquitted, it bars the second trial. Mr. B. C. Bhansali, learned Public Prosecutor laid great emphasis on the words used in s. 300 Cr. P. C. 'the trial by a court of competent jurisdiction'. He submitted that the use of these words are not superfluous. Simply because the complainant remained absent on a particular date before the conclusion of the trial, the acquittal recorded is not after trial. IN other words, he meant to convey that the acquittal to be in force must be one which has been obtained after a full trial from a competent court. I am afraid, I cannot subscribe to this view. There was a conflict of opinion among the Judges of the Madras High Court as to when the trial in summons case begins in private complaint cases ?