ALI BUX Vs. EMPEROR

JUDGEMENT

(1.) This is an application for revision of an order passed by a Magistrate having appellate powers upholding the conviction and sentence of 2 months rigorous imprisonment passed by a Magistrate of Second Class in a case in which the applicants were prosecuted for an offence under Section 297, Indian Penal Code. The only ground that has been argued in revision is that the applicants having been once acquitted by the trying Magistrate, the latter was incompetent to try and convict the applicants on a fresh complaint. Stated as a proposition of law, this contention appears to be sound but taken in relation to the facts of the case, I have no hesitation in rejecting it.

(2.) It appears that one Razaq Husain filed a complaint against the applicants, Gulab Shah Ali Bux and Inayat Ullah under Section 297, Indian Penal Code, alleging that they had dug up a certain grave-yard situate in Shahgunj and were guilty of other acts punishable under Section 297, Indian Penal Code. The complaint was filed in the Court of the City Magistrate of Agra who transferred it to the Court of the Honorary Magistrate with 2nd Class powers. The latter proceeded to record evidence for the prosecution and framed a charge. It does not appear whether any evidence for the defence was recorded. The Magistrate discovered some time after the charge was framed that the complainant had not been examined under Section 200, Criminal P.C., when he presented his complaint. The Magistrate considered this to be a serious flaw in the proceedings. He proceeded to remedy this defect by recording an order "dismissing the complaint" and directing the complainant to file a fresh complaint which was done. The Magistrate recorded the statement of the complainant and re-examined all the witnesses who had been previously examined, framed a charge and directed the accused to enter on their defence. The latter produced their witnesses and were eventually convicted. It is argued that the Magistrate's order "dismissing the complaint" amounts to an acquittal and subsequent proceedings which followed on a fresh complaint were illegal, having regard to the provisions of Section 403, Criminal P.C. The judgment of the Magistrate, hearing the appeal does not show that this contention was put forward before him. It is however no bar to the plea being taken in revision. If it is well founded, I am clearly of opinion that it has no force.

(3.) Section 403, Criminal 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....