Arun Kumar vs The State of Bihar

Ghanshyam Prasad, J.—This application has been filed to quash the order dated 9.2.2005 passed by the Judicial Magistrate, 1st Class, Buxar in Trial No. 1180/2005 arising out of Simri PS. Case No. 161/1991 instituted under Sections 468, 471 and 472 of the Indian Penal Code thereby and thereunder the petition of the petitioner filed u/s 300 of the Code of Criminal Procedure has been rejected. On perusal of the records it appears that in the year 1991 the petitioner, namely, Arun Kumar joined as a peon in the office of Block Education Extension Officer, Simri within the district of Buxar on the basis of appointment letter No. 68 dated 11.1.1991 purported to be issued under the signature of Regional Deputy Director of Education, Mathura Choudhary. However, later on it was detected that the appointment letter was forged. Accordingly, Regional Deputy Director of Education, Patna lodged fardbeyan on 25.10.1991 before Kotwali Police Station bearing Kotwali P.S. Case No. 527/91. An another case was also registered in Simri Police station on the basis of fardbeyan lodged by the Block Education Extension Officer, Simri on 30.10.1991 bearing Simri P.S. Case No. 161/91.

Both cases were instituted under Sections 420, 468, 471 and 472 of the Indian Penal Code. In case lodged before the Kotwali Police Station there were as many as eight accused persons including this petitioner whereas in Simri P.S. Case only this petitioner is accused. In both cases the police after investigation submitted charge-sheet. In the case registered before the Kotwali Police Station the trial was conducted by Sri Nirmal Kumar Agrawal, Judicial Magistrate, 1st Class, Patna vide Tr. No. 125/96. After trial, all the accused persons including this petitioner was acquitted vide judgment dated 9.10.1996. However, the case instituted before Simri police is still pending before the court of Judicial Magistrate, 1st Class at Buxar.

On 16.9.2003 the petitioner filed a petition u/s 300 of the Code of Criminal Procedure with a prayer to acquit them on the ground that he has already been tried and acquitted in another case by the Court of Judicial Magistrate, Patna. However, the court below rejected his prayer by impugned order dated 9.2.2005.

Submission of learned counsel for the petitioner is that in view of Section 300(1) of the Code of Criminal Procedure no person shall be prosecuted and punished for the same offence more than once. It is further submitted that both cases were lodged for the same offence and in one of the cases the petitioner has already been acquitted by the competent court. Therefore, the petitioner is entitled to be acquitted from the case which is already pending in the court of Buxar.

Learned counsel for the State conceded the fact that no person shall be prosecuted and punished for the same offence more than once.

Section 300(1) of the Code of Criminal Procedure runs as follows;

"300(1). Person once convicted o(sic) acquitted not to be tried for same offence.-- 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, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof."

From the above provision it is quite clear that no person shall be prosecuted for the same offence for more than once. This principle has also been reiterated in Article 20(2) of the Constitution of India.

The similar matter fell for consideration before the Single Bench of this Hon''ble Court reported in 1998 (1) BLJ 259 (Rewalal Mahto and Others vs. State of Bihar and another). In paragraph 6 of the judgment it has been held as follows:--

"When once the accused persons had been tried of the same offence, there cannot be a second trial on the same offence on the same cause of action, otherwise there will be violation of principle of criminal jurisprudence and hit by double jeopardy. Without going into legality or otherwise about the conviction made against the petitioner No. 1 u/s 494 IPC on a police case, the fact remains that the petitioners have been tried of the same offence once before a court of law they cannot be again tried on the same offence. Hence this petition has got much force."

In this very case there is similar position. The petitioner has been prosecuted in two different cases for the same offence arising out of the same cause of action. In one of the cases which was pending before the court of Judicial Magistrate, Patna the petitioner has already been acquitted vide annexure-3. Therefore, trial of this petitioner in another case, which is pending in the court of the Judicial Magistrate, Buxar, is apparently barred u/s 300 of the Code of Criminal Procedure as well as Article 20(2) of the Constitution of India. Accordingly, this application is allowed. The petitioner is deemed to be acquitted in the aforesaid Trial No. 1180/ 2005 pending before the Judicial Magistrate, 1st Class, Buxar.