Suchana Roy And Others v. Paresh Kr. Ray Opposite Party.

1. This Rule was obtained in respect of an order dated 14th July, 1976 passed by the Sub-divisional Judicial Magistrate, Kalna rejecting an application of the petitioners for their discharge from the prosecution In Case No. CR. 110 of 1976 and the proceeding thereon. It appears that on 28th December, 1974 a criminal case being C.R Case No. 405 of 1974 was started in the court of the Sub-divisional Judicial Magistrate, Kalna, against the accused petitioners on the complaint of the opposite party No. 1, Paresh Kumar Rov, under Ss. 323, 504 and 448 of the I.P.C On 9th March, 1976 the complainant was absent and the learned Magistrate passed an order acquitting the accused persons under S. 256 of the Cr. P.C No step was taken to set aside that order of acquittal. On 29th March, 1976 the complainant filed a fresh petition of complaint stating the same facts which he had stated in the previous complaint. It was a verbatim copy of the earlier complaint without even the necessary correction to bring it upto date. The accused petitioners were summoned under Ss. 323 and 504 I.P.C and they made an application for dismissal of the case in view of the previous order of acquittal. The said application was rejected on 14th July, 1976 occasioning the present Rule.

2. Mr. Mihir Roy, learned advocate appearing in support of the Rule, contended that S. 300 of the new Cr. P.C was a complete bar to a fresh trial.

3. Sub-secs. (1) and (5) of S. 300 run as follows.

“300. 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 a different charge from the one made against him might have been made under sub-sec. (1) of S. 221, or for which he might have been convicted under sub-sec. (2) thereof.

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(5) A person discharged under S. 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate”.

4. This S. 300 corresponds to old S. 403 of the earlier Cr. P.C This is based on the well known principle that no man's life or liberty should be twice put in jeopardy for the same offence on the same set of facts. Some of the decisions of this Court and of other courts on which reliance was made by Mr. Roy clearly support his contention. In the case of Sukum Ram Koch v. Krishna Deb Sarma, reported in (1929) 33 Cal WN 260 : (30 Cri LJ 585) it was held that the previous case having ended in acquittal the accused could not, so long as the order remained in force, be prosecuted again in the same set of facts. The case of Phani Bhusan Mukherjee…Plaintiff, v. Phani Bhusan Mukherjee…Defendants, Opposite Parties., reported in (1935) 39 Cal WN 919 : (36 Cri LJ 1238) considered this question in some detail and it was specifically held by Lord Williams J. sitting in Division Bench that the procedure under S. 247, at whatever stage of the proceedings it may be applied is a trial within the meaning of S. 463 (now S. 300). In that case, the facts were similar to the present case. As the complainant was found absent and no step was taken in the matter, the accused were acquitted under Section 247 Cr. P.C (corresponding to S. 256 of the new Code) Without getting the above order of acquittal set aside by a competent court the complainant filed a fresh petition of complaint on the same facts before the same Magistrate who once again summoned the accused. It was noted, inter alia, that the definition of trial in the Code of 1872 was omitted in the Code of 1898. It was further observed that the trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused. To quote Rankin, C.J in the case of Sudhindra Kumar Roy v. Emperor reported in (1933) 37 Cal WN 312 : (34 Cri LJ 611) it was held ‘it is very difficult to say at what stage apart from the very earliest stage, trial does begin before a Magistrate. There is some ground for arguing that the moment the Magistrate takes cognisance of the offence, the trial commences. On the other hand, people may argue that in a warrant case not until the charge is framed can the trial be said to have begun”. Observation of Mukherjee, J. in (1929) 33 Cal W N 260 : (30 Cri LJ 585) already referred to was that the word “tried” used in S. 403 does not necessarily import a decision of the case on the merits, but only refers to the nature of the proceedings that were had or; in other words, means, that the proceedings in which the acquittal was passed were in the nature of a trial. His Lordship found himself in complete agreement with the same. A clear distinction was also drawn between discharge and acquittal as would appear from the explanation to Section 403 of the old Code and which is now found in S. 300. Some of the other cases on this point are AIR 1960 Punj 149 : (1960 Cri LJ 399) (State v. Kuldip Singh Sohan Singh) and AIR 1959 All 627 : (1959 Cri LJ 1135) (Mohammad Mansoor v. Hira Singh). In the former case, it was held by a Division Bench consisting of G.D Khosla and Tek Chand, JJ. that it was wholly immaterial upon what grounds the order of acquittal was based. Even if the order of acquittal is made on a technical ground, so long as the order stands, it will prevent further prosecution of the accused person. In the latter case also M.C Desai. J. of the Allahabad High Court held that once the accused is acquitted he cannot be tried again for the same offence.

5. Mr. Pal, appearing on behalf of the complainant, however, drew the attention of the court to the case of Saurendra Mohan Basu… v. Saroj Ranjan Sarkar…Opposite Party., reported in AIR 1961 Cal 461 : ((1961) 2 Cri LJ 204 (FB)) in which a Full Bench of this court held that a fresh complaint after dismissal of the previous complaint may be entertained when there was any manifest error or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming. But that was a case relating to dismissal of a complaint under S. 203 and is clearly distinguishable. It may be pointed out that Section 203 of the new Code belongs to the group of sections under Chapter 15 which relates to complaint to Magistrate whereas S. 255 dealing with acquittal or conviction is included in a group of sections comprised in Chapter 20 of the Cr. P.C that relates to trial of summons cases by a Magistrate Dismissal of complaint by a Magistrate is therefore quite different from an order of acquittal by a Magistrate in a summons case. The Cr. P.C has specifically incorporated the provision for acquittal under S. 256 on the ground of non-appearance of the complainant that acquittal is good enough to constitute an acquittal under S. 300. It may be noted further that sub-sec. (5) of S. 300 which has been quoted earlier provides that even a person discharged under S. 258 shall not be tried again for the same offence except with the consent of the court. It is not necessary to deal with some other aspects of the matter which were discussed at the Bar namely, on what conditions a complaint being dismissed a fresh one can be instituted. The same has been dealt with by the Supreme Court in the case of Pramath Nath Talukdar v. Saroj Ranjan Sarkar, reported in AIR 1962 SC 876 : ((1962) 1 Cri LJ 770) and other cases. It is not relevant to discuss the circumstances under which a second petition of complaint would lie when the former one is dismissed under S. 208, For the reasons stated above, the petition succeeds. The impugned order and the proceedings are quashed. The Rule is made absolute.

6. Rule made absolute.