MT. YASHODA Vs. MT. BANUBAI

JUDGEMENT

(1.) THE applicant, Mt. Yashoda, in this case, was prosecuted by the non-applicant, Mt. Banubai, in the Court of the Third Class Honorary Magistrate' Nagpur, for an offence under Section 352, I. P.C. One Mt. Jai was also included as an accused in the same complaint. On 12th June 1926, the date fixed for hearing, the applicant was present and served, while the other accused was absent and unserved. As the complainant was absent, however, the accused was acquitted under Section 247, Criminal P.C. In this connexion I may say that the order of the Magistrate is a vague one and it is not clear from its terms whether Mt. Jai was also acquitted. That is immaterial, however, so far as the present application is concerned.

(2.) SUBSEQUENTLY , the non-applicant, complainant, filed a fresh complaint on the same facts against the same accused and in the same Court. The applicant applied to the Court on the ground that having been once acquitted, she could not be tried again on the same facts, but the Magistrate declined to entertain this proposition. A criminal revision was then filed before the District Magistrate; the latter held that it was not clear whether the accused were both in Court on the day they were acquitted, and it was doubtful whether the trial had really begun. The District Magistrate, therefore, saw no cause to interfere and allowed the trial to proceed.

(3.) IN my opinion the present case gives rise to no difficulty with reference to the word " tried " in Section 403, Criminal P.C. The present applicant had been duly served and she apparently appeared before the Court. The trial began as soon as she so appeared and, in my opinion, therefore; the further complaint against her for the same offence on the same set of facts was ultra vires of Section 403. The great weight of authority is in favour of the view I take and I am not prepared to admit that the word " tried " in Section 403 necessarily imports any decision of the case on the merits. The trial had, in reality, commenced, if not from the moment the applicant was served with summons, certainly from the moment she appeared in Court on the case being called. Had it been intended to omit an acquittal under Section 247 from the scope of Section 403, I should certainly have expected to find mention of the fact in the explanation to the latter section. So far as the present applicant is concerned, therefore she cannot, in my opinion, be prosecuted again for the same offence.