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2010 DIGILAW 213 (ORI)

Kumar Das v. Banchhanidhi Behera

2010-03-26

B.K.NAYAK

body2010
JUDGMENT B.K. NAYAK, J. — The short point that arises for consid¬eration in this revision is whether a second complaint is barred under Section 300, CrPC where an original complaint in respect of the very same occurrence and the offence ended in acquittal of the accused persons in terms of Section 256(1), CrPC. 2. The factual matrix that gives rise to the question are set forth below:- Opposite party No.1, Banchhanidhi Behera of village Kulali¬lo,P.S. Athagarh, District-Cuttack filed a complaint petition against the petitioners on 16.3.1994 which was registered as ICC No.29 of 1994 in the Court of S.D.J.M., Athagarh. The allegations in the complaint, in short, were that the complainant (O.P.No.1) was in possession of a land measuring Ac.0.03 decimals since 1950 and that on 1.3.1994 at about 8 A.M. while the complainant was fencing the said land the accused persons (petitioners) who were his neighbours, came there, abused him in filthy language and cut and damaged various trees and plants on the said land and also threatened the complainant. It appears that after inquiry u/s. 202, CrPC by order dated 13.4.1994 the learned S.D.J.M. took cognizance of the offence u/ss. 427,294/34, IPC and issued proc¬esses against the accused-petitioners. Subsequently, the accused persons appeared in Court and went on bail and were sometimes being represented by their counsel u/s. 317, CrPC. On 2.9.1994 the particulars of the offence were read over and explained to the accused persons and their counsel having not pleaded guilty, the case was posted to 7.10.1994 for evidence and the complainant was directed to be present with his witnesses. Ultimately, after an adjournment taken by the complaint the case was fixed to 9.11.1994 for evidence, on which date the complainant and his counsel having remained absent, the learned S.D.J.M. passed order u/s. 256(1), CrPC acquitting the accused persons. 3. Subsequently, on 29.11.1994 the complainant-O.P. filed a fresh complaint against the accused-petitioners for same of¬fences arising out of the very same occurrence for which the petitioners were earlier acquitted u/s 256(1), CrPC. The said complaint petition was registered as ICC No.89 of 1994. The subsequent complaint is a verbatim reproduction of the earlier complaint in ICC No. 29 of 1994. 4. The learned Magistrate after inquiry took cognizance of the offence u/ss. The said complaint petition was registered as ICC No.89 of 1994. The subsequent complaint is a verbatim reproduction of the earlier complaint in ICC No. 29 of 1994. 4. The learned Magistrate after inquiry took cognizance of the offence u/ss. 447, 427, 294/34, IPC against the accused-petitioners in ICC No.89/1994 and after trial found the petition¬ers guilty and convicted them for the offence u/s. 447,427/34, IPC and sentenced them to pay a fine of Rs.200/- each on each count, and in default to suffer S.I. for ten days on each count. 5. The petitioners filed Crl. Appeal No.40 of 1998 chal¬lenging the said order of conviction and sentence which was ulti¬mately heard by the 2nd Addl. Sessions Judge, Cuttack and dis¬missed by judgment dated 22.12.2000. 6. Against the aforesaid appellate order passed in Crl. Appeal No. 40 of 1998 confirming the order of conviction and sen¬tence passed by the learned S.D.J.M. in ICC No. 89 of 1994 the petitioners have filed the present revision. 7. The only contention raised by learned counsel for the petitioners in this revision is that in view of the acquittal of the petitioners in the earlier ICC No.29 of 1994 by learned S.D.J.M., Athagarh u/s. 256(1), CrPC, they could not have been tried and convicted in the second complaint case bearing No.89 of 1998 in respect of the very same offence arising out of the very same occurrence in view of the bar contained in S. 300, CrPC. It is further submitted by him that the bar of the second complaint was specifically urged as a ground in the Criminal Appeal and also a petition was filed on behalf of the petitioner before the appellate Court on 24.7.2000 to accept the certified copies of the complaint petition and the entire order sheet including the order of acquittal u/s. 256(1), CrPC passed in ICC No.29 of 1994 as additional evidence and though the appellate Court passed order for considering the said petition at the stage of final hearing of the appeal, the said petition has not been considered by the appellate Court and no finding with regard to the bar of the second complaint has been given in the impugned judgment. 8. 8. The learned counsel for the O.Ps., on the other hand, contended that an acquittal order u/s. 256(1), CrPC is a mere technical acquittal without any trial and, therefore, that will not operate as a bar for a second complaint. 9. The point of law raised in this revision is no more res integra. In an identical situation, this Court in the case of Madan Mohan Tripathy v. Rama Chandra Behera, (1988) I OCR-474 have in paragraphs 4 and 5 held asunder:- “4. The submission that an acquittal under Sec. 256(1) Cr.P.C. is not covered under Sec. 300(1), Cr.P.C. appears to be based upon the words “has once been tried” in that section, it being usually contended that when an order is passed under Sec. 256(1) acquitting accused, it could not be said of him having been tried and acquitted. The contention is not acceptable since it is evident that the word “tried” would include all stages after taking of cognizance the Court and the date fixed for appearance of the accused pursuant to the summons. The order may be passed even without any evidence being recorded or after all or some evidence being recorded. But in all such cases the accused would be deemed to have been tried and acquitted.” “5. There seems to be unanimity of authorities on the sub¬ject. In A.I.R. 1958 Patna 239 (Rasik Tatma v. Bhagwat Tanti), dealing with a case under the old Code, it was held that an order passed under Sec. 247 (corresponding to Sec. 256 of the new Code) is a protection under Sec. 403 against the subsequent trial of the accused for the offence. In 1979 Criminal Law Journal 555 (Buchana Roy and others v. Paresh Kr. Ray), the question directly came for consideration where, for the very same reasons as dis¬cussed above, the same conclusion was reached. A case which throws much light on the question is (1977) 1 SCC 417 (State of Karnataka v. K.H. Annegowda and another) where the facts were that after committal of a case to the Court of Session and fixing of the date of trial by that Court, an application was moved by the Public Prosecutor praying for withdrawal from the prosecution under Section 494 of the old Code. The prayer was accepted and the learned Sessions Judge “discharged” the respondents. The prayer was accepted and the learned Sessions Judge “discharged” the respondents. Thereaf¬ter, a fresh investigation was directed by the State in respect of the same offence and a new charge sheet was filed under the new Code. An objection was taken by the respondents under Sec. 300 Cr.P.C. that in view of their earlier acquittal they could not be tried again. Their plea being negatived, they came before the High Court which allowed the case being of the view that order “discharged” was actually an order of acquittal and hence the provisions of Sec. 300 would apply. On appeal by the State, the Supreme Court affirmed the view of the High Court deciding that a nomenclature of the order by the Sessions Judge as “dis¬charged” would not alter the fact of acquittal of the respondents since the earlier order was passed only after charge had been framed by the Magistrate and commitment had been made to the Sessions Court where the trial on the charge, unless otherwise modified by the Sessions Court, was to take place and inasmuch as the order of discharge came after framing of the charge, it was in effect an order of acquittal and in that view of the matter, the respondents were entitled to the benefit of Sec. 300, Cr.P.C. The case is an authority for the present case and fortifies my view that “tried” under Sec.300(1) would include all steps taken after taking of cognizance and the date of appearing of the accused after issue of summons.” 10. The certified copies of the complaint petition and the entire order sheet in ICC No. 29 of 1994 of the Court of S.D.J.M., Athagarh which were filed by the petitioners before the appellate Court along with a petition for accepting those docu¬ments and additional evidence are perused by this Court. The certified copy of order dated 9.11.1994 in ICC No.29 of 1994 also reveals that because of the absence of the complainant and his counsel on the date which was fixed or hearing of the case, the accused-petitioners were acquitted as per provisions of Sec. 256(1), CrPC. Factually, therefore, there is no doubt or dispute that in respect of the very same occurrence the petitioners were acquitted in ICC No.29 of 1994 and have been subsequently tried and convicted in ICC No. 89 of 1994. Factually, therefore, there is no doubt or dispute that in respect of the very same occurrence the petitioners were acquitted in ICC No.29 of 1994 and have been subsequently tried and convicted in ICC No. 89 of 1994. It also appears from the order sheet of the appellate Court that though the appellate Court directed for consideration of the petitioner of the peti¬tioners for additional evidence at the time of final hearing of the appeal, no order has been passed by the appellate Court on the petition and the question of double jeopardy as contended in S. 300, CrPC has not at all been considered by the appellate Court. Since the subsequent trial of the petitioners for the very same offences and the very same occurrence is a matter which touches the jurisdiction of the trial Court, this Court in the revision can go into the same without remitting the matter to the appellate Court as the same would only prolong the litigation. 11. In the light of the aforesaid discussion it is held that the subsequent trial of the petitioners in ICC No. 89 of 1994 is totally without jurisdiction and amounts to double jeop¬ardy and the consequential conviction is therefore illegal and unsustainable. 12. The revision is therefore allowed and the impugned original and appellate orders of conviction and sentence are set aside and the petitioners are acquitted of the offences. Revision allowed.