Harbhagwan Das vs Daljit Singh

A.D. Koshal, J.—This is an appeal by leave granted under the provisions of sub-section (3) of section 417 of the Code of Criminal Procedure (hereinafter referred to as the Code) against the order dated the 4th of January. 1958, of Shri Mohinder Singh, Chief Judicial Magistrate Hoshiarpur, dismissing a complaint filed in his Court by the appellant in respect of offences under sections 323, 504 and 342 of the Indian Penal Code alleged to have been committed by the respondent who is employed as an Assistant Sub-Inspector of Police in Hoshiarpur District.

The facts giving rise to this appeal may be briefly stated. Alleging that the appellant had been beaten, abused and illegally confined by the respondent, he (the appellant) filed a complaint against the respondent in respect of offences under sections 323 and 342 of the Indian Penal Code in the Court of the Chief Judicial Magistrate, Hoshiarpur, who after recording preliminary evidence, issued a summons against the respondent for the 28th of October, 1967, on which date. however, the respondent did not appear in Court and the case was adjourned to the 9th of November, 1967. On the date last mentioned neither of the parties appeared in Court and the case was adjourned to the 15th of November, 1967, when the learned Chief Judicial Magistrate dismissed the complaint for failure of the complainant-appellant to appear.

On the 21st of November, 1967, the appellant filed a fresh complaint against the respondent in the same Court but in respect of offences under sections 323, 504 and 342 of the Indian Penal Code although they were alleged to have arisen from the same occurrence which was the subject-matter of the previous complaint. In the new complaint the appellant mentioned that he had fallen ill at Kangra on the date of hearing fixed in the previous case (presumably the 9th of November, 1967) and had remained ill for a week. The learned Magistrate sent for the file of that case and passed the following order on the 4th of January, 1968:-

Complainant is present. The accused was acquited in case u/s 342 I.P.C. which is a summons case. Hence the accused cannot be tried again for the same offence. Complaint is dismissed and be filed.

it is this order that is impugned in the present appeal.

Learned Counsel for the parties are agreed before us that the impugned order would be liable to be set aside unless it could be justified with reference to the provisions of section 403 of the Code, the relevant portion of which is quoted below:

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, white 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 u/s 235, or for which he might have been convicted u/s 237.

(2) 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)

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The acquittal of the respondent in the previous case was in accordance with the provisions of section 247 of the Code which states-

If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:

Provided that where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance, and proceed with the case.

According to Learned Counsel for the appellant, an acquittal u/s 247 of the Code is not an acquittal after trial and, therefore, not covered by sub-section (1) of section 403 of the Code. His contention, therefore, is that in spite of the acquittal of the respondent in the previous complaint, the learned Magistrate was bound to proceed with the second complaint in respect of all the offences which it disclosed. With this contention we do not find ourselves in agreement, although it does receive support from Bezwada Kotayya and others v. Konathalapalli Venkayya AIR 1918 Mad 212, relied upon by Learned Counsel for the appellant. In that case it was held that the trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused u/s 242 of the Code and that if a complaint giving rise to such a case was dismissed for default before such particulars were so stated, the accused could not be said to have been "tried" within the meaning of sub-section (1) of section 403 of the Code so that a second complaint for the offence of which he was earlier acquitted would lie. There is, however, an overwhelming mass of authority against the view expressed in Bezwada Kotayya and others v. Konathalapalli Venkavya, supra (see footnotes 3 and 4 appearing at page 2654 under Note 7 to section 403 in AIR Commentaries on "the Code of Criminal Procedure" by Chitaley and Rao, 1965 Edition). According to the view which thus holds the field, any acquittal u/s 247 of the Code would be an acquittal after trial.....a proposition to which we also subscribe. The contention above mentioned, therefore, must be repelled.

The next contention raised on behalf of the appellant is that in so far as the new complaint was dismissed in respect of offences under sections 323 and 504 of the Indian Penal Code, the impugned order was without jurisdiction. Now if the recital in that order about the acquittal in the previous case being only one in relation to an offence u/s 342 of the Indian Penal Code is correct, the contention is unassailable because in that event it cannot be said that there is any conviction or acquittal in force with regard to the offences under sections 323 and 504 of the Indian Penal Code within the meaning of the provisions of sub-section (1) of section 403 of the Code. The final order in the previous complaint, however, is not on the file and it may be as is contended on behalf of the respondent on the basis of a recital in the memorandum of appeal presented to this Court to the effect that the previous complaint alleged the commission of offences under sections 323 and 342 of the Indian Penal Code by the respondent, that that order directed an acquittal of the respondent not only in respect of an offence u/s 342 of the Indian Penal Code but also of one u/s 323 thereof. If that be so, the fresh complaint will not be liable to be entertained in respect of the offence last mentioned also. That is a matter, however, which we leave to be finally decided by the trial Court to which this case is being remanded.

With regard to the offence u/s 504 of the Indian Penal Code, it is quite clear that the respondent''s acquittal thereof was never recorded by any Magistrate before the new complaint was filed. Besides, even if it could be said that the previous complaint was one disclosing inter alia an offence under that section, the Magistrate could only order a discharge of the respondent on failure of the appellant to appear in court on any date of hearing before the charge was framed. Section 403 of the Code, therefore, does not come into play with regard to the offence u/s 504 of the Indian Penal Code. This proposition is sought to be controverted on behalf of the respondent on the plea that in the previous complaint all the facts constituting this offence were alleged and that the dismissal of the previous complaint being one after trial, a second trial was barred. The provisions of section 403 of the Code, however, clearly point to the contrary As laid down in The State of Andhra Pradesh v. Kokkiliagada Meerayar, 1969 Cr. AR 40 SC the following important rules emerge from the terms of section 403 of the Code:

(1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which be may have committed, if the Court trying the first offence was incompetent to try that other offence.

(2) If in the course of a transaction several offences are committed for which separate charges could have been made but if a person is tried in respect of some of those charges, and not all, and if acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made.

(3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which resulted therefrom constitute a different offence, he may again be tried for that different offence arising out of the consequences, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.

(4) A person who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure.

Rule (2) above enunciated is fully applicable to the facts of the present case and we hold that section 403 of the Code did not stand in the way of the entertainment of the complaint in respect of an offence u/s 504 of the Indian Penal Code (and also of one u/s 323 thereof if no acquittal was recorded in respect thereof in the earlier proceedings).

For the reasons slated, we accept the appeal and set aside the impugned order in so far it dismisses the new complaint in toto. The learned Magistrate shall entertain the complaint in respect of the offence u/s 504 of the Indian Penal Code and if it turns out that in the previous proceedings no acquittal was recorded for an offence u/s 323 of the Indian Penal Code, also in respect of that offence. The acquittal of the respondent in respect of the offence u/s 342 of the Indian Penal Code is confirmed.