Puthalath Kannan Nair vs Kuttichi Kausalya

K. Sadasivan, J.—These revision petitions arise from Criminal Appeal 22 of 1968 on the file of the District Magistrate, Tellicherry. That appeal had arisen from C.C. 1145 of 1967 on the file of the Sub Magistrate, Cannanore. That was a case started on a private complaint filed by one Kousalia against Puthalath Kannan Nair alleging that on 16-4-1967 at about 10.30 A.M. he pushed her down and beat her with a fire-wood-stick causing injuries on her. She was rendered unconscious and sometime after the incident when she was restored to consciousness, she went to the Baliapattam Police Station and lodged the complaint. From the Police Station she was sent to the Government Headquarters Hospital, Cannanore where she was an inpatient for thirteen days. On the complaint filed by her a petty case u/s 51 of the Kerala Police Act was taken even though the information furnished by her had disclosed the commission of an offence u/s 324 T.P.C. Learned Sub Magistrate convicted the accused under S. 324 IPC and sentenced him to undergo Rigorous Imprisonment for one month and a fine of Rs. 200/-. It was further directed by the learned magistrate that out of the fine collected, Rs. 100/- should be paid to the complainant. In appeal the learned District Magistrate set aside the conviction under S. 324 IPC, but convicted the accused under S. 323. The sentence of imprisonment passed under S. 324 IPC was also set aside and the accused was sentenced under S. 323 to a fine of Rs. 200/- Criminal Revision Petition No. 449 of 1968 is by the accused against the conviction under S. 323 while the connected Criminal Revision Petition No. 478 of 1968 is by the complainant for enhancement of the sentence. In Crl. R.P. 449 of 1968 the sole Point raised by the learned counsel is that the trial is vitiated by the bar of S. 403 of the Criminal Procedure Code. The bar of issue ''Estoppel'' was also raised by the learned counsel but that was not pressed at the final stage. He confined himself solely on the bar of S. 403; S. 403 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 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, or for which he might have been convicted under S. 237". Sub-section (2) of S. 403 is particularly relevant for the present case. The sub-section reads:--

(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 under S. 235, sub-Section (1).

In the present case the contention is that in so far as the accused was tried under S. 51 of the Police Act and acquitted the second trial under S. 324 or 323 cannot be sustained as it is hit by the bar of S. 403 (1). The argument cannot be countenanced for the simple reason that the second trial was in respect of a distinct offence the character of which is such that it could not have been taken cognisance of and tried in the first trial. The first trial was solely under S. 51 of the Police Act for disorderly behaviour etc., in a public place. The hurt caused to the complainant and the injuries sustained by her in consequence thereof, did not and could not have formed part of the first charge. The division bench ruling of the Patna High Court in Ishodanand Biswas and Others Vs. The State, is instructive in this case. There it was held:--

Where it appears that the second trial sought to be started against the accused is in respect of a distinct offence, an offence, of a character which cannot be said to be cognate to the offence which was the subject matter of the charge in the first trial--If is clearly a case where sub s. (2) of S. 403 of the Code will apply and they may afterwards be tried for that offence If in respect of a second trial sought to be launched, it can be found that it relates to a distinct offence which may have been committed in the course of the same transaction and yet is a distinct offence, S. 235(1) will apply.

Thus, the second trial is not barred.

In a very recent decision of the Tripura High Court Joy Sanker v. Sushi Kumar (AIR 1969 Tri 31) the same view is seen taken. There, the contention was that the accused having already been prosecuted under Ss. 60 and 61 of the Bombay Cooperative Societies Act, there could not be a second prosecution under the provision of the Penal Code. The plea was not accepted and the court held that the offences under the Co-operative Societies Act are different from those under the Penal Code. The same is the case in the present instance also. As already indicated, the first trial was under the Police Act and only those aspects of the occurrence which were necessary to be considered under that charge could alone be included in that charge and the trial also was in respect of these charges. For sustaining injuries in the course of that act, the complainant had to seek her remedies under the Penal Code in the second charge. The principle is that a previous acquittal is no bar to a trial for a distinct offence for which a separate charge might have been made in the former trial under S. 235 (1) of the Code. The only bar will be against the reception of evidence of the first trial in the trial under the subsequent charge. The following observations appearing at page 1704 of the Code of Criminal Procedure by P. Ramanatha Iyer Fourth Edition Vol. 1.2 are pertinent in this connection. The learned author would observe:--

conviction of an accused for an offence under S. 130, Penal Code, in a prosecution initiated by the police against both the accused and the complainant in which both were sentenced to varying fines, does not bar the subsequent prosecution of the accused for offences under Ss. 323 and 147, Penal Code, on complaint laid by the complainant. For, in the previous prosecution the charges under Ss. 323 and 147 could have been joined against the present accused under S. 235 (1):31 Bom. L.R. 922 :1929 Bom. 451; see also 47 A. 284. The acquittal of an accused person on a charge of affray under S. 160, I.P.C. is no bar to his subsequent trial and conviction under S. 323, I.P.C., for causing hurt in the course of the affray. The offence of affray and that of causing hurt in the course of an affray are distinct offences coming within subsection (2) of S. 403, Cr. P.C., and the matter is governed by that sub-section and not by subsection (1) as it is not a case of offences coming within S. 236 or 247, Cr. P.C.; 17 P.L.T. 723: 1936 P. 502. Where the allegations in the complaint relate to offences under Ss. 323, 147 and 448, I.P. Code, the acquittal of the accused persons of the charge under S. 323 of the Penal Code in the former trial will not bar their subsequent trial for the remaining offences under Ss. 147 and 448 of the Penal Code. In such a case the accused are not being tried again for an offence, as contemplated under S. 403(1), but for distinct offences, as contemplated under S. 403 (2), and therefore the subsequent trial is legal: 1961 B.L.J.R. 365: 1961 (2) Cr. L.J. 537: A.I.R 1964 Pat. 406.

The position is thus quite clear that subsequent trial for an offence under the Indian Penal Code cannot be said to be bad in law for the reason that the accused was once tried and acquitted for an offence under the Kerala Police Act. The two are distinct offences falling under two different enactments; the one could not have been cognate with the other so as to be clubbed together in the same trial. The second trial therefore is quite in order and I see no reason to interfere with the conviction entered in the second trial. Crl. R.P. 478 of 1968 as already stated, is for enhancement of the sentence. The present sentence awarded by the trial magistrate was vacated by the learned appellate magistrate, apparently for the reason that the offence itself had to be brought down from S. 324 to S. 323 I.P.C. In the circumstances I do not see any reason to interfere. The trial magistrate had directed that Rs. 100/- out of the fine collected should be paid to the complainant towards compensation; but in the judgment of the appellate magistrate I see no mention about this direction. So, to make the point clear, I would direct that out of Rs. 200/-, Rs. 100/- will be paid to the complainant by way of compensation for the harm done to her.

The Criminal Revision Petitions will stand disposed of as above.