LAKPA SHERPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This is an application under sections -˜397/401 read with section 482 of the Code of Criminal Procedure, 1973 for recalling, clarification and/or modification of the observations made by this Court in paragraph 10 of the related judgment passed on 2nd April 2004 in Criminal Revision No.15 of 2003, in other words this application virtually amounts to an application wherein the petitioner sought for review of the related judgment particularly, the observations contained in paragraph 10 of it by contending, inter alia, that the petitioner was acquitted of the charges under sections 177 and 423 IPC under the related judgment dated 2nd April 2004 passed by this Court in Criminal Revision No. 15 of 2003 and as such, this Court ought to have given direction to the authority concerned to return the seized documents to the petitioner, but instead of doing so, this Court made an observation in paragraph 10 of the related judgment that those documents which were exhibited in the Court may therefore be returned to the office of the District Collector (East) for taking such legal action permissible in law, if so advised, against the offender, which is unjust.

(2.) BEING aggrieved by these observations made in paragraph 10 of the judgment, the petitioner filed this Criminal Misc. Application, which, according to me, it virtually amounts to an application for review of the observations made in paragraph 10 of the related judgment passed by this Court in Criminal Revision No.15 of 2003.

(3.) AT the hearing, Mr. O.P. Bhandari, learned counsel contended that this Court ought to have passed necessary order for return of the seized documents to and in favour of the petitioner as he was acquitted from the charges lavelled against him. The learned counsel went on to contend that a person should not be prosecuted and he cannot be tried twice for the same offence. Supporting his contention, the learned counsel has cited related decisions of the different High Courts on the same issue including the decisions rendered by Madhya Pradesh High Court in Rafiq Khan v. Smt. Jamila Bee1 and Kerala High Court in Raghavan v. State of Kerala2 wherein it has been held that once the accused tried for offences punishable under sections 498 -A and 506 of the Penal Code and acquitted of the charges and thereafter, the prosecution for offences under sections 323 and 342 of the Penal Code on same set of facts is barred by section 300(1) of the Code of Criminal Procedure. In Raghavan v. State of Kerala (supra), the Kerala High Court held that framing of charges in two separate sessions cases for same occurrence is not permissible. According to me, this is settled law of the land, which is not disputed by anybody, and this decision and principle of law do not help the case of the petitioner. Here, in the case in hand, the present petitioner was acquitted of the charges under sections 177 and 423 IPC on the main ground that the cognizance of the offence under section 423 IPC was taken beyond the period of limitation and as such, the consequent trial leading to conviction is without jurisdiction and the nonest in the eye of law. Apart from that, no complaint was filed by the public servant concerned as required under section 195 of the Code of Criminal Procedure and as such, the cognizance so taken of such offence punishable under section 177 IPC and consequently, the ultimate conviction is without jurisdiction as the provision of section 195(1) Cr.P.C. is mandatory, which was not complied with by the authority concerned. So, on these grounds, the petitioner was acquitted of the charges by this Court under the related judgment. However, considering the nature of the case and the conduct of the petitioner in obtaining the Sikkim Subject Certificate and Certificate of Identification, this Court made an observation to the effect that those documents which were exhibited in the Court may therefore be returned to the office of the District Collector (East) for taking such legal action permissible in law, if so advised, against the offender.