Allahabad High Court
Pulloo @ Shiv Pratap vs State Of U.P. on 14 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 78 Case :- APPLICATION U/S 482 No. - 10193 of 2010 Applicant :- Pulloo @ Shiv Pratap Opposite Party :- State of U.P. Counsel for Applicant :- Rakesh Prasad Counsel for Opposite Party :- Govt. Advocate Hon'ble Anil Kumar-IX,J.
Heard learned counsel for the applicant and learned AGA for the State as well as perused the record.
This application u/s 482 Cr.P.C. has been moved by the applicant Pullo @ Shiv Pratap with prayer to quash the entire proceedings of Criminal Case No.1048 of 2005 (State Vs. Pullo @ Shiv Pratap), under Sections 147, 148, 323, 504, 325, 308, 324 IPC, arising out of Case Crime No.99 of 2002, Police Station- Handia, District- Allahabad.
Brief facts relating to the case are that on 18.02.2002 First Information Report was lodged by the informant Vijayi as Case Crime No.99 of 2002 in Police Station- Handia, District- Allahabad against the accused Ram Raj son of Sri Nath, Indramani son of Gangaram Chauhan, Shiv Mangal son of Indramani, Pulloo son of Indramani, Indrajeet son of Gangaram, Dayaram son of Shrinath, Ram Shiromani son of Shankar, Ramdhani son of Indraraj and Ramsajivan son of Indraraj. It was alleged in the said FIR that all the named accused came at the door of the informant with weapons in their hands and assaulted the informant and his family members. After investigation charge sheet was filed by the I.O. on 02.8.2002 agaisnt Ramraj, Indramani, Dayaram, Ram Shiromani, Ramdhani and Ramsajivan, under Sections 147, 148, 149, 323, 324, 325, 504, 308 IPC. No charge sheet was submitted against the named accused Shiv Mangal because allegedly he was murdered in cross case of this offence. No charge sheet or any report was submitted against the named accused Pulloo son of Indramani and Indrajeet. After the case was committed to Sessions on 07.07.2003 by the Magistrate. It was registered as Sessions Trial No.775 of 2003 and later on transferred to Additional Sessions Judge, Court No.13, Allahabad. Charges were framed on 11.11.2003 against the accused Ramraj, Indramani, Dayaram, Ram Shiromani, Ramdhani and Ram Sajivan, under Sections 147, 148, 324/149, 308/149 IPC.
Trial of the aforesaid Session Trial No.775 of 2003 started after recording of the statement of PW-1. Applicant accused Pulloo @ Shiv Pratap and Indrajeet were also summoned under Section 319 Cr.P.C. to face this trial. Against the applicant-accused and Indrajeet charges under Sections 147, 148, 324/149 and 308/149 IPC were framed on 04.05.2005. After full trial all the charged accused of this trial including the applicant were acquitted by judgement and order dated 25.11.2005 passed by Additional Sessions Judge, Court No.13, Allahabad.
A supplementary charge sheet dated 20.10.2002 was filed by the I.O. in aforesaid Case Crime No.99 of 2002 against the applicant Pulloo @ Shiv Pratap and Indrajeet, under Sections 147, 148, 323, 504, 325, 308, 324 IPC. This supplementary charge sheet was sent to the Court of ACJM for further proceeding, which was numbered as Case No.1048 of 2005. Proceedings were started by the concerned Magistrate and warrant was issued against the applicant for his appearance. Against the second trial this application u/s 482 Cr.P.C. has been filed by the applicant.
Learned counsel for the applicant contended that in the same crime number and for the charged sections, the applicant has been acquitted vide judgement and order of the Additional Sessions Judge, Court No.13, Allahabad dated 25.11.2005. Copy of which has been filed as Annexure No.1 to the affidavit and in the same crime number and charged sections subsequently charge sheet has been submitted by the prosecution and now the warrant has been issued against the applicant. Learned counsel for the applicant further argued that once the person has been tried and acquitted, he cannot be tried for the same offence again as per the provisions of Section 300 Cr.P.C. and therefore the proceedings are bad in law.
Learned AGA has filed his counter affidavit on behalf of the State. In paragraphs 4 and 5, it is categorically stated that in this case FIR was lodged against the applicant and co-accused persons, which was registered as Case Crime No.99 of 2002, under Section 147, 148, 149, 323, 324, 308 IPC, Police Station- Handia, District- Allahabad, in which charge sheet was submitted against Ramraj, Indramani, Dayaram, Ram Shiromani, Ramdhani and Ram Sajivan. In that case, cognizance was taken by Magistrate and trial started after committal. During the trial applicant-accused Pulloo @ Shiv Pratap and Indrajeet were summoned under Section 319 Cr.P.C. They were also tried along with other charged accused persons and ultimately all the accused including applicant were acquitted by judgement and order dated 25.11.2005. It is also stated in the counter affidavit that a supplementary charge sheet No.164A dated 20.10.2002 was submitted against accused applicant Pulloo @ Shiv Pratap and Indrajeet. Learned AGA further argued that the matter should be brought by the applicant before the court concerned for appropriate relief and he has wrongly filed this application u/s 482 Cr.P.C.
I have considered the submissions of learned counsel for the applicant, learned AGA and perused the record.
Section 300 Cr.P.C. provided that a person once convicted or acquitted cannot be tried for the same offence. Section 300(1) of Cr.P.C. is as under:-
"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-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof."
Above provision is based on maxim "nemo debet bis vexari", which means that a person cannot be a convicted on second time for an offence which was involved in the offence with which he was previously charged. In order to bar the trial of the any offence already tried it must be shown-
(i) that he has been tried by a competent court for the same offfence or one for which he might have been charged or convicted at that trial on the same facts.
(ii) that he has been convicted or acquitted at the trial and
(iii) that such conviction or acquittal is in force.
In case at hand the applicant-accused was summoned under Section 319 Cr.P.C. in Sessions Trial No.755 of 2003 (Case Crime No.99 of 2002) Police Station- Handia, District- Allahabad and was charged under Sections 147, 148, 324/149, 308/149 IPC and after complete trial he has been acquitted by judgement and order dated 25.11.2005 of Additional Sessions Judge, Court No.13, Allahabad, which was a competent court to try the offence.
Learned AGA raised an objection that in previous case applicant was charged under Sections 147, 148, 324/149, 308/149 IPC and supplementary charge sheet dated 20.10.2002 has been filed under Section 147, 148, 323, 504, 325, 308, 324 IPC. Learned AGA also submitted that some additional sections have been added in the charge sheet.
It is relevant that in both the trials incident is the same. They are based on same prosecution story and the facts. In previous trial i.e, S.T. No.775 of 2003 charge sheet against the six accused were submitted under Sections 147, 148, 149, 323, 504, 325, 308, 324 IPC and applicant was also summoned in that case but charges against them were framed in only Section 147, 148, 324/149, 308/149 IPC. Charge against the applicant was also framed under the above sections of Indian Penal Code. In Thakur Ram vs. State of Bihar AIR 1966 SC 911, it has been observed by Hon'ble Apex Court that Section 300 Cr.P.C. bars the trial of a person again not only for the same offence but also for any other offence on the same facts Inguva Mallikarjun Vs. State of A.P. 1978 Cr.LJ 392 (DB), it was observed that Section 300 Cr.P.C. also applies to offence for which charges might have been framed at previous trial.
It is not disputed by the learned AGA that previous offence was tried by a competent court in which applicant was acquitted. This fact is also stated in the counter affidavit of the State. Third necessary point to apply the bar of Section 300 Cr.P.C. is such acquittal or conviction is in force. Learned counsel for the applicant submitted that the acquittal order dated 25.11.2005 is still in force. Learned AGA has not disputed this fact.
In view of the above facts and discussion, second trial of the applicant for the same offence in which he has been acquitted is barred by Section 300 Cr.P.C.
Consequently, entire proceedings of Criminal Case No.1048 of 2005 arising from Case Crime No.99 of 2002, under Section 147, 148, 323, 504, 325, 308, 324 IPC against the applicant is hereby quashed.
This application u/s 482 Cr.P.C. is, accordingly, allowed.
Order Date :- 14.1.2020 Ashutosh Pandey