Kuttappu and Others vs Intelligence Officer, North Zone, Kozhikode and Another

P. Govinda Menon, J.—This Revision Petition has been filed by the accused in C.C. 123 of 1961 under sections 435, 439 and 561A, Crl. P.C. against the preliminary order passed by the District Magistrate of Kozhikode negativing the objection raised by him that the prosecution is barred u/s 403, Crl. P.C., as he had already been tried and acquitted for the very same offence in the earlier case C.C. 146/59 on the file of the District Magistrate of Kozhikode. The case against the accused is that on 25th February 1959 certain Sales Tax Officers visited the shop of the first accused and while they were inspecting the account books, the petitioners snatched the books and the 4th accused ran away with the books. On a complaint being made to the police all the accused were charge sheeted for an offence of assaulting a public servant in the discharge of his duties, offence punishable u/s 353, I.P.C. At the trial they were acquitted by the District Magistrate as the offence u/s 353, I.P.C., had not been made out.

On appeal to this Court the order of acquittal was confirmed and Raman Nayar J. in disposing of the appeal observed that it was still open to P.W. 1 to make a complaint u/s 186 I.P.C. The Sales Tax Authorities therefore filed a complaint against the petitioners for an offence u/s 186 I.P.C., viz., voluntarily obstructing a public servant in the discharge of his duties. The question for decision in this petition is whether section 403, Crl. P.C., is a bar to the trial of the case.

Two conditions are necessary before the provisions u/s 403(1) can be availed of: firstly there must have been a conviction or an acquittal, and secondly there should be a new trial for the very same offence or for an offence for which he might have been charged u/s 236 or might have been convicted u/s 237, Crl. P.C. The plea of autrefois acquit cannot operate in cases covered by section 235, Crl. P.C. A previous acquittal would, therefore, be no bar to a trial for any distinct offence for which a separate charge might have been made in the former trial u/s 235(1). It cannot be denied that an offence u/s 353, I.P.C. and an offence u/s 186 I.P.C., are distinct offences. The key to sub-section (2) lies in the words "distinct offence" and when the second charge is in respect of a distinct offence the accused cannot successfully plead the bar u/s 403, Crl. P.C.

The Learned Counsel then attempted to argue that even though the section may not in terms apply yet the accused must be given the benefit of the principle involved in the section because the accused had already been prosecuted once and to prosecute them again for this technical offence u/s 186, I.P.C., would be a distinct hardship. No doubt, there are a line of cases where it was held that though the plea of autrefois acquit may not technically be available still the principle could be availed of. But I do not think that this is a case where the principle could be applied. The next argument raised by the Learned Counsel is that the complaint before the court has not been laid in accordance with the provisions of section 195(1) Crl. P.C. Section 195(1) says that no court shall take cognizance of an offence punishable under sections 172 to 188 I.P.C., except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. It is submitted in this case that the public servant concerned has not filed the complaint, but the question is whether the term "public servant concerned" would take in only the individual public servant or it would cover his successor in office. The filing of a complaint prescribed in sub-section (1) clause (a) is a public duty and responsibility and not a personal privilege Hence the successor in office of the public servant concerned can make a complaint under the section. Authority for this position may be had in the decisions in Jot Narain Thakur Parsad v. Emperor (A.I.R. 1939 Sind 164); P.D. Patel v. Emperor (A.I.R. 1933 Rang. 29(sic) and Government Advocate, Bihar v. Kumar Singh (A.I.R. 1939 Pat. 83). I am in respectful agreement with the view taken in these cases and I hold that the complaint filed by the successor in office would be a valid complaint.

In the result the revision petition is dismissed. The District Magistrate will now dispose of the case as expeditiously as possible.