KALU Vs. STATE

JUDGEMENT

(1.) THIS a reference by the Additional Sessions Judge, Bundi, in a case under sec. 429 of the Penal Code and arises under the following circumstances.

(2.) IT appears that on the 16th April, 1962, one Sunderlal Mina of village Bharta Bavri filed a report at the police station Talera that the accused Kalu Chhotia had inflicted injuries with a lathi on his she-buffalo aged about seven or eight years with the result that it died on the same day. According to the complainant the she-buffalo was worth about 350 rupees. Both the accused were eventually challaned in the Court of the Sub-Divisional Magistrate, Bundi, from whose court the case was then transferred to that of the Magistrate, First Class, Bundi. Before this case was disposed of by the Magistrate, it so transpired that the aforesaid Sunderlal also filed a complaint before the Nyaya Panchayat at Barundhan under sec. 5 of the Prevention of Cruelty to Animals Act, 1890 (Act No. XI of 1890, hereafter called the Act) on the 22nd September, 1963, which was tried and the result was that both the accused named above were convicted under sec. 5 of the Act and sentenced to a fine of Rs. 16/- each. That being so, an objection was raised on behalf of the accused before the Magistrate that as they had already been tried and punished by a competent court on the very facts which were the subject-matter of the complaint before the Magistrate, they could not be tried and prosecuted for the same offence or on the same facts for another offence by virtue of the provisions of sec. 403 Cr. P. C. and consequently the Magistrate should stay his hands and consign the case to the record. The Magistrate repelled this objection. His principal reasoning seems to have been that although it was beyond dispute that the accused had been tried and punished by the Nyaya Panchayat for an offence based on the same facts upon which the case against the accused before him was founded, the offence for which the accused were being tried before him was a distinct one, being under sec. 429 of the Penal Code, which the Nyaya Panchayat was not competent to try at all, and, therefore, he dismissed the objection raised by the accused, and ordered that their trial under sec. 429 shall be proceeded with.