Dorairaj and another vs Sivalingam

K.N. Mudaliar, J.—The two petitioners question the propriety of the order of the Sub-Magistrate of Pannier who held that the miscellaneous petition filed by the two petitioners objecting to their trial on the ground of the bar Imposed by S. 403 Criminal Procedure is net Code maintainable. In order to appreciate the legal objection raised by the two petitioners before the court of the Sub-Magistrate, Ponnerl for their trial for an offence under S. 379 read with S. 34 I.P.C., on the basis of a private complaint by one Sivalingam Mudallar, the respondent herein, It is necessary to detail a few facts.

The respondent complained to the police on 24th December 1969 that there was theft on the midnight of 23rd December 1969 in his field when the two petitioners trespassed Into his patta land and committed theft of standing crops of paddy worth Rs. 100, and the further allegation In his complaint is that the two petitioners took away the property from the field. The Sub Inspector of Police, one Krishna Kurup registered the complaint In Cr. No. 106 of 1969 of Padirvedu Police Station. On 31st December 1969 a charge sheet was filed for an offence under S. 379 I.P.C. against the two petitioners. Evidently a charge was framed against the two petitioners and thereafter P.W. 1 was examined on 5th March 1970. It transpires that subsequently, the said case was transferred to the file of the Sub-Magistrate, Trivellore as C.C. No. 1556 of 1970. On 23rd July 1970 the Assistant Public Prosecutor No. 1 Chingleput fled an application for withdrawal under S. 494 Crl. P. C The Sub Magistrate, Trivellore passed the following order:--

The Assistant Public Prosecutor, I, Chingleput having requested permission to withdraw from the prosecution of the above named accused in respect of offence under S. 379 I.P.C, and having satisfied this Court that there are sufficient grounds for granting permission, is hereby permitted to withdraw from the prosecution as aforesaid of the accused who are acquitted under S. 494, Crl. P.C.

It appears from this order that the two petitioners were acquitted on 23rd July 1970 under S. 494 Crl. P.C. in respect of an offence under S. 379, I.P.C.

But the respondent did oat allow the matters to rest there. He filed a complaint In C.C. No. 3549 of 1970 on the file of the Sub-Magistrate, Ponneri, wherein the averment is as follows:

On 23rd December 1969 at about 12 in the midnight the accused herein committed criminal trespass on land bearing S. No. 60/11 situated in Perlapuliyur and belonging to the complainant and with the common intention of cutting and removing Bayaguata paddy crop, ripe for harvest, did so cut from about four coats in the said laid and removed the, paddy of the complaint worth about Rs. 100. The Incident was witnessed by Arumugham, Pottigan and Rathnam who passed the field. On their Information the complainant reported to the Padliveda police on 24th December 1969.

The complaint contains a brief history of the subsequent proceedings which, I have already narrated. The said complaint has been taken on file by the Sub-Magistrate, Paanerl. The two petitioners then filed an objection petition stating that there is the bar imposed by S. 403 Crl. P.C. against the trial of the case in C.C. No. 3549 of 1970. The learned Magistrate dismissed the petition of the two petitioners as not maintainable under S. 403, Crl. P.C.

S. 403(1) Crl. P.C. runs as follows:

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 S-236 of for which be might have been convicted under S. 237.

The Explanation in S. 403 Crl. P.C. is of material importance which is as follows:

The dismissal of a complaint, the stopping of proceedings under S. 249, the discharge of the accused or any entry made upon a charge under S-. 27/, is not an acquittal for the purposes of this section.

It emerges clearly from the Explanation that the acquittal under S- 494 Crl. P.C. is not covered or included in the Explanation. Therefore the acquittal under S. 494 Crl. P.C. would, in my view, be an acquittal in every sense of the term for the purpose of S. 403 Crl. P.C. The result is that the petitioners shall not be tried for the same offence in view of their acquittal under S. 494 Crl. P.C. The criminal revision case is allowed and all proceedings in C.C. No. 3549 of 1970 on the file of the Sub-Magistrate, Pennerl, are quashed.