IMPORTANT POINT
[The principle of double jeopardy prohibits a person from being tried for the same offence or any other offence based on the same facts after a conviction or acquittal.]

JUDGMENT/ORDER

1. Rule. Rule made returnable forthwith. By consent of the parties taken up for final hearing.

2. The petitioners are original accused against whom process is issued by the learned J.M.F.C., Jalgaon dtd. 26/12/2016 in Criminal Misc. Application No. 426/2013 for the offences punishable under Sec. 313 r/w Sec. 34 of the Indian Penal Code (for short "I.P.C."). The allegations in the application are that, the complainant-wife was harassed and ill treated at the hands of the petitioners who are husband and in laws. In the said complaint itself she has stated about the earlier complaints that she had filed with the police station on the basis of which the crime was registered bearing Crime No. 29/2012 for the offences punishable under Ss. 498-A, 504 and 506 of the I.P.C. On the basis of the crime, a case was registered. The accused were found guilty of the offences punishable under Ss. 498-A, 504 and 506 of the I.P.C. in R.C.C. No. 304/2012 by the learned J.M.F.C., Jalgaon against which it is reported that an appeal is pending. In the said case, on the same set of facts and allegations, the present petitioners are tried.

3. On going through the allegations in the earlier complaint in which the petitioners are already convicted, it is seen that the main allegations and the instances were interalia that these petitioners made wife/informant to terminate the pregnancy. Looking to the present complaint again on the basis of the same facts the application was filed under Sec. 156 (3) of the Code of Criminal Procedure (for short "Cr.P.C.") of the offence punishable under Sec. 313 of the I.P.C. alongwith Ss. 323, 504, 506 r/w Sec. 34 of the I.P.C. The application under Sec. 156 (3) of the Cr.P.C. was filed on 3/9/2013. The learned Magistrate on recording the verification was pleased to direct the complainant to examine her witnesses under Sec. 202 sub Sec. (2) of the Cr.P.C. by order dtd. 4/12/2015. After holding enquiry under Sec. 202 of the Cr.P.C., the learned Magistrate issued process for the offence punishable under Sec. 313 r/w Sec. 34 of the I.P.C. against the present petitioners by order dtd. 26/12/2016.

4. The petitioners therefore filed Criminal Revision Application No. 31/2018 before the learned Sessions Court at Jalgaon specifically pointing out that on the same set of facts and allegations they were already tried and there is conviction recorded against them. The main ground is of double jeopardy. The said revision application came to be rejected by order and judgment dtd. 31/10/2018 by the learned Additional Sessions Judge, Jalgaon. It is this order which is under challenge in the present petition.

5. Learned advocate for the petitioners vehemently argued that, under Sec. 300 of the Cr.P.C. and under Article 20 sub clause 2 of the Constitution of India, the second complaint is not maintainable and the petitioners cannot be made to face the another complaint on the basis of the same set of facts. It is pointed out that, even the Doctor who terminated the pregnancy of respondent No. 2 is also examined in the earlier case. The Court while recording findings about Sec. 498-A has taken into consideration the evidence of Doctor and that is specifically taken as evidence under Sec. 498-A of the I.P.C. This is, in fact, against the principle of double jeopardy.

6. Learned advocate for respondent No. 2 vehemently opposed the petition saying that in the earlier complaint where the petitioners are held guilty, there was no charge under Sec. 313 of the I.P.C. They have been charged and tried for different offences than one under which case is made out now is different. Now, the process is issued for the offence punishable under Sec. 313 r/w Sec. 34 of the I.P.C. and therefore, the second prosecution is not hit by the principle of double jeopardy.

7. Learned A.P.P. fairly submits that looking to the contents of both the complaints, it does appear that, now the process is issued against the petitioners on the same set of facts. It