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Gunanidhi Meher and anr. Vs. Usha Meher - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Case No. 21 of 1984
Judge
Reported in1985(II)OLR545
ActsCode of Criminal Procedure (CrPC) , 1974 - Sections 221(1), 221(2), 300, 300(1), 330(2) and 482
AppellantGunanidhi Meher and anr.
RespondentUsha Meher
Appellant AdvocateJ.K. Mishra, Adv.
Respondent AdvocateNone
DispositionApplication dismissed
Cases ReferredEmperor v. Chinna Khaliappa Gounden and Anr.
Excerpt:
.....trial and were ultimately acquitted in the said g. 4. the correctness of the submission of the accused persons as well as the legality of the orders passed by the learned magistrate and the revisional court rejecting the prayer of the accused persons is now to be examined in this case. section 300 of the code is based on the well-known legal maxim 'nemo debet bis vexari pro eadem causa' i. it is a well established rule of common law that a man should not be put twice in peril for the same offence. case that the husband of the complainant as well as the present petitioners were accused in the said case and were tried for the offence under section 160, indian penal code, on the allegation that they assaulted each other on the public place thereby causing breach of public peace and..........of the present case, but the learned magistrate was of the opinion that the offences for which the accused persons have been charged in the complaint case, namely, sections 323 and 324, indian penal code, are distinct offencss than that of section 160, indian penal code, for which they were charged in the earlier g. r. case and, therefore, the provisions of section 300 of the code would have no application. the accused a petitioners carried a revision to the learned sessions judge who rejected the same without any discussion of law or facts and hence the accused-petitioners have invoked the inherent jurisdiction of this court.3. it appears from the certified copy of the judgment of acquittal in the earlier g. r. case which is on record that on 16. 9. 1981, at 9. 00 a. m. the present.....
Judgment:

G.B. Pattnaik, J.

1. This is an application by the accused persons in a complaint case bearing ICC Case No. 70 of 1981 invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') for quashing the cognisance taken against them. The only ground on which the inherent jurisdiction is being invoked is that the principle of autre fois acquit on trained in Section 300 of the Code would apply with full force in view of the earlier order of acquittal in G. R. Case No. 1346 of 1981 wherein on the self-same allegations the petitioners were tried under Section 160, Indian Penal Code, and were acquitted by the learned Magistrate,

2. An application was filed on behalf of the petitioners before the learned Magistrate in the complaint case alleging that the provisions of Section 300 of the Code would apply in the facts and circumstances of the present case, but the learned Magistrate was of the opinion that the offences for which the accused persons have been charged in the complaint case, namely, Sections 323 and 324, Indian Penal Code, are distinct offencss than that of Section 160, Indian Penal Code, for which they were charged in the earlier G. R. Case and, therefore, the provisions of Section 300 of the Code would have no application. The accused a petitioners carried a revision to the learned Sessions Judge who rejected the same without any discussion of law or facts and hence the accused-petitioners have invoked the inherent jurisdiction of this Court.

3. It appears from the certified copy of the judgment of acquittal in the earlier G. R. Case which is on record that on 16. 9. 1981, at 9. 00 a. m. the present petitioners as well as the complainant-party fought with each other and assaulted each other on the village road which caused breach of peace in the locality. On the same day, station diary entries were made by both the parties and ultimately the police booked members of both parties and filed charge-sheet under Section 160, Indian Penal Code. The present petitioners as well as the members belonging to the complainant-party faced their trial and were ultimately acquitted in the said G. R. Case by judgment dated 5.10. 1982. In the meantime, a complaint had been filed on 1919. 1981 by Smt. Usha Meher, wife of Trinath Meher, alleging that on 16. 9. 1981 between 8.00 a. m. and 11.00 a.m., the accused persons abused the complainant and accused Dayanidhi assaulted the complainant and accused Gunanidhi also assaulted the complainant with a stick and both of them assaulted her husband. It was further stated in the complaint: petition that accused Dayanidhi also assaulted her daughter Sarojini by making her half-naked and, therefore, according to the complainant, the accused persons committed offences under Section 323, 324, 311 and 504, Indian Penal Code. After recording the initial statement of the complainant, the learned Magistrate took cognisance of the offences under Sections 323, 324 and 341, Indian Penal Code, by order dated 26. 10. 1981, summoning the accused persons to appaar on 29. 10. 1:281. The accused persons did appear pursuant to the said summons and the complaint case proceeded to a great extent and on 6. 7.1982, the complainant was examined and two other witnesses were also examined on-behalf of the complainant. The case was then adjourned to 19. 8. 1932. On that day, the case was further adjourned to 21. 9. 1982. On 21. 9. 1982, the complainant prayed for time and time was allowed till 19. 12. 1982. The case was adjourned from date to date. On 4. 8. 1983, it was discovered that charges have not been framed against the accused persons. The learned Magistrate, therefore, heard the parties on the question of framing of charge and charges were framed against the accused parsons under Sections 323 and 324, Indian Penal Code. On the next date i. e., on 25. 8. 1983, an application was filed by the accused persons to call for the records of the G. R. Case and the said prayer was allowed On 23. 9. 1983, P. Ws. 1 and 3 were cross-examined and discharged and the case was posted to 1. 10. 1933. At this stage, on 1.10. 1983, the accused persons filed a petition purporting to be one under Section 300 of the Code stating that in view of the, order of acquittal passed against chem in the G. R.Case, they cannot be tried again in this complaint case.

4. The correctness of the submission of the accused persons as well as the legality of the orders passed by the learned Magistrate and the revisional Court rejecting the prayer of the accused persons is now to be examined in this case. Section 300 of the Code is based on the well-known legal maxim 'nemo debet bis vexari pro eadem causa' i. e., no person should be vexed twice for the same' offence. It is a well established rule of common law that a man should not be put twice in peril for the same offence. {See, Emperor v. Chinna Khaliappa Gounden and Anr., I. L. R. 29 Madras, 126 (F. B). The law Commission in its 41st, Report had observed that where a person has been acquitted or convicted of an offence and a separate charge could have been made but was not made against him in the former trial, he should not be liable to be prosecuted again on the other charge as a matter of course because that might lead itself to abuse. In accordance with the said observations and to provide a check against such abuse, Sub-Section (2) of Section 300 of the Code makes the consent of the State Government pre-condition before a new prosecution is launched on the basis of the earlier facts. The principles underlying the English common law plea of autrefois acquit has been statutorily recognised in Section 300 and when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 221(1) or for which he might have been convicted under Section 221(2), Section 300(1) of the Code operates. The question whether a particular trial is barred by reason of previous prosecution ending in conviction or acquittal is a question to be determined on the facts and circumstances of the particular case. One of the tests is undoubtedly whether the facts are the same or not, but the true test is not so much whether the facts are the sama in both the trials as whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction from the second charge- In order that the accused can avail himself of the protection of Section 300(1) of the Code, two conditions are necessary. There must be a conviction or acquittal and there should be a new trial for the same otfence or for an offence for which he mighc have been charged under Section 221(1) or might have been convicted under Section 221(2). The first part of Sub- Section (1) of Section 300 applies where the offences are the same, but not where the offences are distinct. The contention of Mr. Mishra, the learned counsel for the petitioners, is realive have on the second part of Sub- Section (1) of Sec, 300 of the Code. i.e. 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'. According to Mr. Mishra, tha allegations in the present rase on the basis of which cognisance has been taken against the petitioners are that accused Dayanidhi assaulted the daughter of the complainant by making her half-naked and both the accused assaulted the complainant and her husband on the same day, i. e., 16. 9. 1931 and at the same time i. e. 9.00 a. m. on the basis of which the earlier G. R. Case had been instituted and tried and the allegation in the G. R. Case was that there was breach of public peace on account of mutual assault on the village road. It is, therefore, necessary to find out how far the petitioners have been able to establish that they are being prosecuted in the complaint case on the same facts which were the subject-matter in the earlier G. R. Case. It is also to be borne in mind that where such an objection is put forward at a preliminary stage, it should be the duty of the Magistrate to hear the evidence and ascertain what are the facts in the two cases in order to determine whether the facts in the present case are the same as those in the previous one.

5. It appears from the judgment of the G. R. case that the husband of the complainant as well as the present petitioners were accused in the said case and were tried for the offence under Section 160, Indian Penal Code, on the allegation that they assaulted each other on the public place thereby causing breach of public peace and tranquility and the learned Magistrate recorded an acquittal in the said case on a finding that che place of disturbance was not at all a public place. The present complaint has been filed on the allegation that the accused persons have assaulted the complainant and her daughter. The offence for which the present case is being proceeded with, is a distinct one from that, which was being tried in the G. R. Case. Considering the facts and circumstances of the case, it is not possible for me at this stage to conclusively hold that the provisions of Section 300 of the Code apply and, therefore, it would not be proper to quash the cognizance taken in the complaint case. It would, however, be open for the petitioners to contend the same point before the learned Magistrate after conclusion of the trial and the learned Magistrate may consider the same keeping in view the observations made in this judgment regarding the scope and application of the principle of autrefois acquit.

6. The inherent power of the Court to quash a criminal proceeding is to be exercised in a proper case to prevent an abuse of the process of the Court or to secure the ends of justice. Criminal proceeding instituted against an accused person shall ordinarily be proceeded with in accordance with law. It has been stated in several decisions of the Supreme Court and of this Court that it is not possible or expedient to lay down an inflexible rule which would govern the exercise of inherent jurisdiction of the High Court and it is only when the Court is firmly of the opinion that the impugned order clearly brings about a situation which is an abuse of the process of the Court or the Court comes to the conclusion that for the purpose of securing the ends of justice interference by High Court is necessary, the Court may exercise its power under Section 482 of the Code. Such power, however, is to be exercised very sparingly. It cannot be said at this stage of the proceeding that the complaint case is vexatious or without jurisdiction. In this view of the matter, it would be inexpedient to interfere with the order of cognisance in exercise of the inherent power. Accordingly this application is dismissed. The learned Magistrate is directed to dispose of the pending criminal proceedings as expeditiously as possible.


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