Rafiq Khan and Another vs Smt. Jamila Bee and Another

S.B. Sakrikar, J.

Accused/applicants have directed this petition u/s 482, Criminal Procedure Code for quashing of the proceedings of the Misc. Criminal Case No. 158/1990 registered against the applicants on the complaint of non-applicant No. 1 for the offences punishable under Sections 498A 506 342 and 323, Indian Penal Code.

Briefly stated the facts of the case are that respondent No. 1 Smt. Jamila Bee lodged a report against the applicants on 20.3.1989 at P.S. Shahjapur with regard to the offences under Sections 498A 506 and 323/34, Indian Penal Code. The said report was sent to police station, Sundarsi, District Shahjapur as the alleged of fences were found to have been committed in the jurisdiction of said Police Station. P.S. Sundarsi, on investigation, filed charge-sheet against the applicants in the Court of JMFC, Shahjapur and a Criminal Case No. 459/91 was registered against the applicants in the said Court. The charges under Sections 498A and 506, Indian Penal Code were framed against the applicants and they were acquitted of the charges on completion of the trial vide order dated 3.1.1995 of the Court concerned.

It is alleged that on the same report and on the same allegations respondent No. 1 also filed 3 private complaint against the applicants in the Court of JMFC, Shahjapur under Sections 147 148 342 506 498A/149, Indian Penal Code. The learned Magistrate, on recording statements u/s 200, Criminal Procedure Code registered a criminal case against the applicants under Sections 498A 506 323 and 342, Indian Penal Code vide order dated 22.6.1990 passed in Criminal Case No. 158/90 (New No. 224/96) and directed issuance of summons against the applicant. On appearance, the applicants have filed application u/s 210 read with Section 300, Criminal Procedure Code and prayed that the applicants cannot be prosecuted again on the same report and the allegations upon which they have been tried and acquitted in a case registered against them on the police report. The learned Magistrate partly allowed the application and held that the prosecution against the applicant can continue for the offence under Sections 343 and 323, Indian Penal Code of which the applicants were not charged or acquitted in a case registered on the police report. A revision petition filed against the said order of the Magistrate on behalf of the applicants was dismissed by the impugned order of the IInd A.S.J., Shahjapur passed in Criminal Revision No. 6/98. Aggrieved the applicants have filed this petition u/s 482, Criminal Procedure Code for quashing of the proceedings of the Criminal Case No. 158/1990 (new No. 2246/96) registered against the applicants on the private complaint filed on behalf of the non-applicant u/s 200, Criminal Procedure Code.

Having heard the learned Counsels for the parties and considering the facts of the case on hand, the only question arise for decision in this case is that whether in the facts and circumstances of the present case the applicants can be prosecuted for the offences under Sections 342 and 323, Indian Penal Code on a private complaint filed by the non-applicant u/s 200, Criminal Procedure Code ?

In view of the facts of the case, the proper procedure would have been to try both the cases together i.e. the case arising on the police report and the complaint case filed by the non-applicant u/s 200 of the Criminal Procedure Code under the provisions of Section 210(2), Criminal Procedure Code. But in the instant case; the two cases against the applicants have been registered and tried separately and in the case instituted on police report, the applicants have been acquitted of the offences under Sections 506 and 498A, Indian Penal Code and the said order of acquittal became final and operative. In such state of affairs on the same set of facts and the report the applicants cannot be charged or prosecuted constituting some other offences in view of the provisions of Sub-section 1 of Section 300, Criminal Procedure Code which is extracted below for the convenience and better appreciation of the case on hand:

"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 the 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 while considering the scope of Section 300(1), Criminal Procedure Code has also 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 sub-section 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 Subsection 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 offences 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 but had not been tried."

In view of the facts and the circumstances of the instant case and the law applicable, in my considered opinion when the applicants in a case instituted on a police report have been tried for the offences under Sections 498A and 506, Indian Penal Code and have been acquitted thereof, the said order of acquittal becomes final and still remains in force. In such state of affairs, on the same set of facts the applicants cannot be prosecuted for the offences under Sections 323 and 342, Indian Penal Code, in view of second limb of Section 300, Sub-section 1 of Criminal Procedure Code.

In this view of the matter, the petition deserves to be allowed and is allowed accordingly. The criminal proceedings initiated against the applicants of the Misc. Criminal Case No. 158/90 (new No. 2246/96) on the private complaint of the non-applicant No. 1 cannot continue and stand quashed. No order as to cost.