J.R. CHOPRA, J.— This appeal against the judgment of Judicial Magistrate No. 3, Jodhpur dated July 16, 1977 raises a very short legal question regarding the applicability of s.300 Cr.P.C.

2. The facts leading to this appeal briefly stated are that the complainant Mohd. Ishaq was living in his sisters house situated at Subhash Chowk, Ratanada, Jodhpur for the past about 14 years. It is alleged that his brother Saleem and his son Safiq came to his house on December 21, 1975 and December 26,1975 and asked him to vacate the house. When he did not agree to their request, Saleem and Safiq gave beating to him, opened the lock of his house and ousted him from it on February 8, 1976. He lodged a report about this incident in the Police. After usual investigation, the Police filed a challan under s. 453 I.P.C. However, he also filed a private complaint regarding the same offence in the court of Judicial Magistrate No. 2, Jodhpur. The case was registered against the accused-persons under ss. 323, 427 and 451 I.P.C. After summoning of the accused - persons, the case was fixed for the evidence of the complainant on October 5, 1976. The case was registered as Private Complaint No 17 of 1976. On October 5,1976, the complainant was absent and the accused-persons alongwith their counsel were present. In the absence of the complainant, the learned Magistrate dismissed the complaint under s. 256 Cr.P.C. and acquitted the accused-persons of the offences under s. 323, 451 and 427 I.P.C. Thereafter, in the case filed on police report which was registered under . 453. I.P.C. an application was moved on behalf of the accused-persons that for the same offence they have already been acquitted by the Court of Judicial Magistrate No. 2, Jodhpur on October 5, 1976 and, therefore, this prosecution is now barred under s. 300 Cr.P.C. This application was moved at the stage when the case was fixed for prosecution evidence. The learned Magistrate held that the second trial of the accused-persons for the same incident is barred under s. 300 Cr.P.C. as they have already been acquitted. Aggrieved against this judgement, the State has preferred this appeal.

3. I have heard Mr. B.C. Bhansali, learned Public Prosecutor for the State and Mr. Suresh Kumbhatt, learned Amicus Curiae for the accused-respondent Saleem. I have also carefully gone through the record of the case.

4. It was contended by the learned Public Prosecutor that s.300 Cr.P.C. bars the second trial only when a person has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence. According to him, in this case no trial took place in the earlier proceedings but only the substance of the allegation was read over to the accused-persons. The accused persons did not plead guilty to the charges and, therefore, the case was fixed for recording of the prosecution evidence and hence the principle of autrefois acquit cannot be pressed into service. In support of his submission, he invited my attention to Venkatasubha V. Soundraraja (1) wherein the accused was discharged under s. 259 Cr.P.C. but the complainant again filed a fresh complaint. It was held that the trial is not illegal and the accused is not prejudiced by the second trial.

5. Learned Public Prosecutor further drew my attention to Harbai V, Raja Premji (2) wherein it was observed as follows :

"Dismissal of complaint under s. 203 or discharge of accused under S. 259 by Magistrate is no bar for taking cognizance of a fresh complaint or a second complaint either by his successor or by any other Magistrate of the co-ordinate jurisdiction even though the order of dismissal or discharge is not set aside. The order dismissing the complaint under s. 203 Cr.P.C. or discharge of the accused under s. 259 Cr.P.C is not a final judgement and, therefore, the bar of section 403 Cr.P.C. (Old) is not applicable for entertainment of such a second complaint. No finding can be attached to an order made under s. 203 or 259

Click Here to Read the rest of this document