Bhanwar Singh and Another vs State

S.D. Khare, J.—This is an application in revision against an order dated 8.10.1963, passed by Sri G.P. Misra, Magistrate first class, Agra, rejecting the applicants contention that the trial against them is barred u/s 403 Code of Criminal Procedure.

The facts leading to the present application might be briefly stated as follows. According to the prosecution case Bhanwar Singh and Dhuria had beaten Bipti with lathis on 17.11.1961, in a field somewhere outside the abadi of the village. After this beating hid taken place, it was alleged that Bipti went towards the abadi of the village and when he reached the well of Pitam, Fauran Singh, Bucha Ram and Soran came there and asked Bhanwar Singh and Dhuria as to why they had caused injuries to Bipti. In the meantime six other persons, namely, Jiwan, Jangi, Hira, Ganga Ram, Shankar and Ratna had joined Bhanwar Singh and Dhuria, and all the eight of them voluntarily caused hurt to Fauran Singh, Bucha Ram and Bipti. A case Under Sections 147/323 IPC was started against all the eight accused persons. The Magistrate made it clear that he was not charging the accused persons for causing injuries to Bipti, at a different place, by only two of the eight accused persons, because it was a different occurrence and the joint trial might not be permissible under law. The eight accused persons were, therefore, tried only for causing injuries to Bucha Ram and others. All of them were acquitted.

The two applicants, namely, Bhanwar Singh and Dhuria, were again prosecuted u/s 323/325 IPC for having caused simple and grievous hurt to Bipti on the same day but at a different" place. It was contended on behalf of the applicants that the provisions of Section 403 Code of Criminal Procedure barred the subsequent trial as they had been tried once for an occurrence which virtually formed part of the same transaction and in which the evidence must be common. The Magistrate did not accept this contention raised on behalf of the applicants, and hence they have come up in revision.

From the facts stated above it is clear that the two occurrence which took place on 17.11.1961, were quite different. The places of occurrence were also different. In the first occurrence only Bipti had been beaten and the accused persons were Bhanwar Singh and Dhuria only, while in the second occurrence, which took place at another place, though after a short interval, persons other than Bipti were also beaten and the accused persons were eight in number. The trial which ended in the acquittal of all the eight accused persons was in respect of the second offence only. The Magistrate, who tried that case, had made it clear that he was not charging the accused persons for having caused simple and grievous hurt to Bipti.

In these circumstances it cannot be said that simply because the two applicants along with six others were acquitted of the offence alleged to have been committed in the second occurrence, they must be deemed to have been acquitted in respect of the offence for the first occurrence also.

Section 233 Code of Criminal Procedure provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239 of the Code of Criminal Procedure. Section 234 provides that three offences of the same kind within the same year may be charged together. Section 235 lays down that a trial for more than one offence is permissible if in one series of acts so connected together as to form such transaction more offences than one are committed by the same person, Section 236 Code of Criminal Procedure provides for the contingency when it is doubtful what offence has been committed. Section 237 lays down as to when a person charged of one offence can be convicted of another offence.

Since the same set of accused persons had not committed both the offences, it was extremely doubtful whether they could have been charged with both the offences and tried at one trial. The Magistrate who held that trial, therefore, in order to make sure that the trial was legal, did not think it proper to charge the accused persons of both the offences and he proceeded with the trial in respect of the second offence only which had been committed by eight accused persons against Bucha Ram and others at an altogether different place.

Section 403 Code of Criminal Procedure 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 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 u/s 236 or for which he might have been acquitted u/s 237.

From what has been stated above it is obvious that the provisions of Sub-section (1) of Section 403 Code of Criminal Procedure, quoted above, will not apply to the facts of the case. Sub-section (2) of Section 403 provides that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against: him on the former trial u/s 235, Sub-section (1). The argument of the learned Counsel that the earlier trial should have been in respect of both the offences has, therefore, no force in view of the provisions of Sub-section (2) of Section 403 Code of Criminal Procedure.

The Magistrate was perfectly justified in holding that the trial against the applicant was not barred u/s 403 Code of Criminal Procedure.

There is no force in this revision application, and it is dismissed. The order staying further proceedings in the case is vacated.