Om Prakash Pandey vs Gangaram

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. for quashing the criminal complaint bearing no. 746/05 and the order dated 18.07.2005 whereby the cognizance has been taken u/s 336 of I.P.C. and Section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the learned J.M.F.C. Morena. The brief facts are that, respondent no. 1 filed private complaint before J.M.F.C. Morena alleging that petitioner is in service and posted as Lab technician at P.H.C. Morena. Grandson of the complainant namely Pramod had fallen down. Thereafter he was admitted to the Government hospital Morena where after checkup by the doctor the deficiency of blood was advised. Thereafter, the blood of the complainant was taken at and given to the grandson of the complainant. Due to the said action of the petitioner, the patient was seriously fallen ill. Initially the blood of the patient was found "B" positive as per the report of the petitioner, and thereafter the blood was found " AB" positive. Due to the said negligent act of the lab technician, the patient had suffered a lot. When it was asked from the petitioner that why the report has wrongly been given by him then the complainant had been abused by him saying words Chamarey, Haddey. On the basis of the report a case was registered u/s 336 of I.P.C. and 3(1)(10) of SC/ST Act at police station Kotwali Morena at crime no. 589/04. In the said case the petitioner was discharged vide order dated 05.04.2006. Thereafter the complaint was filed by the complainant and on the basis of the statement recorded u/s 202 of Cr.P.C. Cognizance has been taken against the petitioner. Against this order revision petition was preferred and the same was dismissed. Being aggrieved present petition has been filed.

It is submitted that action of the respondent as well as trial Court is bad in law. Cognizance could not be taken at all in the facts & circumstances of the case. On the basis of F.I.R. Lodged by the complainant himself, the petitioner has been discharged by the Session Court. In view of the provision of Section 300 of Cr.P.C. and also Article 20(2) of the Constitution of India cognizance could not be taken.

Learned counsel for the respondent has submitted that the complaint filed by complainant for the offence punishable u/s 336 and Section 3(1)(10) of SC/ST (Prevention of Atrocities Act), therefore the learned trial Court has rightly taken the cognizance.

I have considered the submissions of the learned counsel for the parties.

From the perusal of Annexure P-1, it appears that on the report lodged by the respondent, crime no. 589/2004 u/s 336 of I.P.C. was registered and challan was filed before the J.M.F.C. Morena. It was submitted by the applicant that no charge is made out against him but the prayer was rejected. Being aggrieved the applicant preferred revision petition bearing no. 190/2005 before First A.S.J. Morena. Learned 1st A.S.J. Morena has allowed the revision and set aside the order passed by the learned J.M.F.C. holding that cognizance has been taken after expiry of limitation.

From the perusal of the Annexure P-2, it appears that respondent no. 1/complainant has filed private complaint u/s 336, 294 of I.P.C. and Section 3(1)(10) of SC/ST (Prevention of Atrocities) Act After inquiry cognizance has been taken against the applicant by the Magistrate. From the averment of the complaint it appears that the allegation against the applicant has been made that he has wrongly reported the blood group as a result of which the grandson of the complainant has suffered a lot and when respondent asked from the applicant then he was abused. Learned Magistrate vide order 18.07.2005 has taken cognizance for the same incident for which earlier case was registered by the police u/s 336 of the I.P.C. which was set aside by the revision.

Section 300 of Cr.P.C. Reads as under:

Person once convicted or acquitted not to be tried for same offence: (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, while such conviction or acquittal remains in force, not be liable to be tried again for same offence, nor on the same facts for any other offence for which 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.

On perusal of section 300(1) it emerged that the principle underlying is based on the rule of ''Autre fois acquit'' means that so long as an order of acquittal or conviction at a trial held by a competent Court of a person charged with an offence stands that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising therefrom.

In case of Natarajan Vs. The State, Hon''ble the Madras High Court dealing with the scoaph held that the "first limb of the section deals with the case of a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence while such conviction or acquittal remains in force. The other limb of subsection deals with 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 u/s thereof. The principle of this limb of the section is that whether an accused can be tried at one trial for several offences and if he has not been so tried for all the offence but only for a few, whether he should not be put again in jeopardy for the offence for which he might have been tried at that time bud had not been tried.

In the present case as noticed earlier that crime no. 589/04 was registered against the petitioner and after investigation the charge sheet was filed and learned Magistrate has framed charge u/s 336 of the I.P.C. but on revision First A.S.J. Morena has set aside the order holding that case is barred by time and is not maintainable and the petitioner has been discharged. Therefore, on the same facts petitioner cannot be prosecuted again. In view of the aforesaid, petition deserves to be allowed and the same is allowed. Criminal proceeding initiated by the respondent no. 2 and Criminal complaint case no. 746/05 pending before J.M.F.C. Gwalior is hereby quashed.