Madhya Pradesh High Court
Malkhan Singh vs State Of M.P on 3 January, 2017
1
M.Cr.C.No.2306/2013
(Malkhan Singh & Ors. v. State of M.P.)
03/01/2017
Shri Rajiv Sharma, counsel for the applicants.
Shri Prakhar Dengula, Panel Lawyer for the
respondent/State.
The present petition under Section 482 of CrPC has been filed for quashing the FIR registered in Crime No.22/2013 by Police Station Dehat, District Bhind under Section 447 of IPC and under Section 3 (1)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
The necessary facts for the disposal of this petition are that a complaint was made by the complainant Prem Narayan @ Prem Singh Jatav on 11.01.2013 alleging that they are in possession of Survey No.881 area 0.67 Hectares and the applicants have illegally and forcibly encroached upon 0.20 Hectares of land and have constructed a boundary wall, a platform and a room.
It is contended by the applicants that for the similar allegations the applicants were tried in Criminal Case No.1818/2009 and the Trial Court by judgment dated 04.02.2013 had acquitted them from the charge punishable under Section 447 of IPC. It is further contended by the counsel for the applicants that for the similar allegations, the present FIR has been lodged and, therefore, it amounts to double jeopardy and is violative of Article 20 (2) of Constitution of India as well as Section 300 of CrPC.
2 M.Cr.C.No.2306/2013(Malkhan Singh & Ors. v. State of M.P.) Before considering the legal position, it would be appropriate to consider the factual aspects of the case. It is apparent from the judgment dated 04.02.2013 passed in Criminal Case No.1818/2009, the allegations were that on 19.10.2009, the applicants No.1 & 2 Malkhan Singh and Bharat Singh have forcibly entered in the property of the complainant Prem Narayan @ Prem Singh Jatav and thus have committed an offence of criminal trespass. Thus, it is apparent that the applicants No.1 & 2 were tried on the allegations of having committed the offence of criminal trespass on 19.10.2009. It is also apparent from the judgment of the Trial Court that the Trial Court had also taken the fact in consideration that civil disputes were pending between the parties.
The State in his reply has submitted that the civil suit filed by the applicants has been dismissed. The civil appeal too has been dismissed.
The counsel for the applicants fairly admitted that the Second Appeal No.434/2012 which was filed by the applicants has also been dismissed by this Court. Thus, it is clear that the civil court has dismissed the suit of the applicants for declaration of title and injunction. Further, if the allegations in the FIR are considered, then it would be clear that in the FIR in question, the allegation is that in the month of August 2012, the applicants have forcibly encroached upon the land of the complainant and 3 M.Cr.C.No.2306/2013 (Malkhan Singh & Ors. v. State of M.P.) they have constructed a boundary wall, a room and a platform. Thus, it is clear that the allegations for which the applicants No.1 & 2 were tried were in respect of the offence of criminal trespass committed on 19.10.2009, whereas, the allegation in the FIR in question is in respect of illegal construction and encroachment made in the year 2012.
Section 300 of CrPC reads as under:-
"300. 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. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not 4 M.Cr.C.No.2306/2013 (Malkhan Singh & Ors. v. State of M.P.) happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section." In order to take the benefit of Section 300 of CrPC, the applicants must establish that in both the proceedings the offence was the same. If the offence of a similar nature is committed on two different dates then it cannot be said that the second proceeding is bad or amounts to double jeopardy.
Similarly, Article 20 of the Constitution of India reads as under:-
"20. Protection in respect of conviction for 5 M.Cr.C.No.2306/2013 (Malkhan Singh & Ors. v. State of M.P.) offences -
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself."
As this Court had already found that two different offences are committed on two different dates and, therefore, it cannot be said that the subsequent FIR which was lodged in respect of a different offence, may be of the similar nature is bad or amounts to double jeopardy. Further, only the applicants No.1 & 2 were tried in the earlier case. Even otherwise, the plea of double jeopardy is not available to the applicants No.3 to 6.
It is further contended by the counsel for the applicants that even if the entire allegation is accepted then also it would be a case of civil nature.
Suffice, it to say that there is already a decree against the applicants and their prayer for declaration of their title and injunction has already been rejected, whereas, the complainant has been found to be in possession of the land in dispute, 6 M.Cr.C.No.2306/2013 (Malkhan Singh & Ors. v. State of M.P.) then encroachment on the said land cannot be said to be purely of civil nature.
Accordingly, this Court is of the considered view that no case is made out for quashing the FIR. The petition is accordingly dismissed.
(G.S.Ahluwalia)
(ra) Judge