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PATNA HIGH COURT
Kanhaiya Singh, J.
Suraj Narain Singh
Versus
Nirpat Singh
Decided On : DECEMBER 23, 1960
CRIMINAL PROCEDURE CODE - SECTION 403 - ACQUITTAL OR CONVICTION - BAR TO SUBSEQUENT TRIAL - EXCEPTIONS - OFFENCES UNDER SECTIONS 147 AND 448, PENAL CODE - DISTINCT FROM OFFENCE UNDER SECTION 323, PENAL CODE - SUBSEQUENT TRIAL NOT BARRED.
Fact of the Case:
The accused were charged with offences under Sections 323, 147, and 448 of the Penal Code. They were acquitted of the charge under Section 323, but the Magistrate took cognizance of the offences under Sections 147 and 448 and issued processes summoning the accused. The accused challenged the Magistrate's order, arguing that the acquittal under Section 323 barred their subsequent trial for the other offences.
Finding of the Court:
The High Court held that the acquittal of the accused under Section 323 did not bar their subsequent trial for the offences under Sections 147 and 448. The Court found that the offences under Sections 147 and 448 were distinct from the offence under Section 323 and that the case fell under Section 235(1) of the Code of Criminal Procedure, which allows for the trial of multiple offences committed in one series of acts.
Issues: Whether the acquittal of the accused under Section 323 of the Penal Code barred their subsequent trial for the offences under Sections 147 and 448 of the Penal Code.
Ratio Decidendi: The Court held that the offences under Sections 147 and 448 were distinct from the offence under Section 323 and that the case fell under Section 235(1) of the Code of Criminal Procedure, which allows for the trial of multiple offences committed in one series of acts. The Court further held that the acquittal of the accused under Section 323 did not bar their subsequent trial for the offences under Sections 147 and 448, as these were distinct offences.
Final Decision: The High Court discharged the reference and directed the Magistrate to proceed with the trial of the case in the light of the observations made in the judgment.
Kanhaiya Singh, J.
1. This is a reference under Sec. 438. Criminal Procedure Code, recommending that the order of the Sub-divisional Magistrate Muzaffarpur, dated 31-8-1959 summoning the accused persons upon a complaint of offences under Sections 323, 147 and 448 of the Penal Code be set aside.
2. On 20-11-1958 one Nirpat Singh filed a petition of complaint before the Subdivisional Magistrate, Muzaffarpur The allegations in the petition of complaint are as follows. The complaint Nripat Singh had married a Nepali girl, on account of which the accused persons, six in number, who are his gotias were enraged and therefore, ostracised him. When his mother died in the Baisakh of the same year, the complainant invited them to the usual feast, but they declined to participate in it. Instead, they started stopping egress and ingress of the complainant
The latter convened a Panchaiti, but the accused remained adamant and paid no heed to the Punches, rather, before the very punches they abused him and were ready to assault him. The Punches, however, intervened and took them away. This irritated them further. On 18-11-1938, the accused started digging a ditch to close his passage intended for bringing water. The complainant stopped it, whereupon the accused wanted to assault him.
The complainant fled away and took shelter in his bathan (cowshed). The accused pursued him and dragged him out of the bathan and assaulted him with lathis, butt-end of the gun and fists, inflicting thereby serious injuries on his person. Some persons came at the time of the occurrence and separated them. The gun was carried by Jageshar Singh, one of the accused, who struck him with its butt-end. These allegations apparently disclose three offences under Sections 147, 323 and 448. The Magistrate examined the complainant on solemn affirmation and took cognizance of the offence under Sec.323, Penal Code, and issued processes summoning the accused persons. Some of the accused persons did not appear until after warrants of arrest were issued against him.
On 6-9-1958 the complainant filed a petition to adopt the procedure for warrant cases in trial of the accused. The Magistrate allowed this prayer and directed that procedure in warrant cases would be adopted. Accordingly, the trial proceeded and after several adjournments, the case was set down for hearing on 7-7-1959. On this date the accused were present but the complainant who was present on all the previous dates fixed for hearing was absent and, therefore, the learned Magistrate directed the accused to be acquitted under Sec.247 of the Criminal Procedure Code. The operative part of this order runs as follows: The cognizance of the offence has been taken Under Sec.323 I.P.C. which is triable as summons case. In the circumstances, the accused persons are acquitted Under Sec.247 Gr. P.C.
3. Thereafter, on 11-7-59, another complaint was made on the self-same facts on which the previous complaint was made, and the plea of the complainant was that because of his being involved in a false criminal case at the instance on the accused, he could not attend Court on 7-7-1959 and prayed for issue of processes against the accused. He was examined on solemn affirmation. The Magistrate called for the record of the previous complaint and passed the following order on 31-8-1959:
Complainant files hazri. The record from the trial Court received and seen. Heard lawyers. The learned lawyer for the complainant has filed Jagan V/s. Ram Kishore Pandey -- in support of his contention that Sec.323 I. P. C and 147 I. P. C were both applicable to this case, hence in case the complaint has been dismissed for default, the order passed by the learned Magistrate should have been one of discharge and not of acquittal, and fresh trial on complaint Under Sec. 403 Cr. P.C. (was not barred). The learned Magistrate in his order dated 6-10-1959 has allowed warrant procedure to be followed in this case. As such, I find that fresh trial, on th
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