Himachal Pradesh High Court
Dinesh Chander Sharma vs Nirmala Devi And Others on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 338 of 2017 .
Reserved on : 29.11.2019
Date of decision : 03.01.2020
Dinesh Chander Sharma ... Petitioner.
Versus
Nirmala Devi and others ... Respondents
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Petitioner in person.
For the Respondents : Mr. Dheeraj K. Vashist, Advocate vice
Mr. Tara Singh Chauhan, Advocate for
respondents 1 to 8 and 11 to 13.
Anoop Chitkara, Judge
1. Challenging the judgment of acquittal, passed by the Sessions Court, Una, affirming the order of dismissal of complaint under Section 203 CrPC, passed by the Judicial Magistrate, Una, the complainant, who is practicing as an Advocate, has come up before this Court, seeking directions to proceed against the accused-
respondent, for commission of offences punishable under Sections 119, 170, 323, 355, 452, 500, 504, 506-II/149 of IPC.
1Whether reporters of Local Papers may be allowed to see the judgment?
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2. The gist of the facts apposite to adjudicate the present petition .
traces its history to an incident, which had taken place on November 21, 1999. The complainant alleged in the complaint, filed on September 21, 2007, filed after a gap of more than seven years, as follows: -
(a) Accused No.6, Smt. Raj Rani was related to the complainant as his sister-in-law. Due to some marital discord, Panchayat of accused No. 6, mediated to settle the dispute.
(b) This settlement preceded the complaint dated Nov 1, 1999, made by Smt. Raj Rani to her Panchayat against the complainant.
(c) The Accused No.1 Smt. Nirmala Devi was president of Nagar Panchayat, Santokhgarh. She sent a notice to the father of the complainant, asking him to appear in the Nagar Panchayat Office on Nov 21, 1999, at 11.00 a.m., and also directed him to bring complainant Shri Dinesh Chander Sharma with him.
(d) The complainant, through some local person, contacted the accused Nirmala Devi and asked her to appraise the purpose of the said meeting. However, fifteen persons, who are arraigned as accused in the complaint, visited the house of the complainant at around noon.::: Downloaded on - 04/01/2020 20:27:47 :::HCHP
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(e) The complainant asked the Pradhan to serve upon .
him proper notice. Still, she refused by saying that it is unnecessary, and on this complainant declined to join the said inquiry without service of the formal notice.
(f) The first accused Nirmala Devi told the complainant that she is not bound to follow the Court procedure, and being an Advocate, the complainant was willfully evading the said inquiry.
(g) In this melee, accused No. 2 to 5; namely, Bhajan Singh Maan, Balram, Naresh Kumar, Sham Lal Chabba, and other relatives of accused Raj Rani passed various unhealthy remarks against the complainant. Accused No. 13 and 14, namely, Laxmi Devi and Kamla Devi, gave illegal threats to his life and limb.
(h) Instead of stopping these persons from indulging in these illegal acts, accused No. 1 Nirmala Devi justified the said remarks and condemned the conduct of the complainant with accused No.6.
(i) The complainant further alleged that he could see evil in the eyes of all the accused, the way they were staring at him, and it lowered his dignity.
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(j) After that, accused No.1 Nirmala Devi asked the .
complainant to accompany her to the residence of his elder brother at Una, where his parents resided. However, the complainant refused on the ground that they have no legal authority to ask him to join the said inquiry. On this, the accused persons started to leave his house, but while moving, they used undignified remarks against him.
(k) Accused No.13, Laxmi Devi passed immoral remarks, and others did not try to restrain her.
(l) The complainant further stated that accused No. 6, 7,9,10, 13, and 14, namely, Raj Rani, Aruna Sharma, Santosh Kumari, Kamlesh, Laxmi Devi, and Kamla Devi, re-entered his house and started beating their breast to humiliate him. This conduct lowered his grace and that of their family, in public.
Accused No. 7 pounced upon him and held him from the collar of his shirt, which again lowered his dignity. Accused No. 6 gave two-
three blows of slippers on his left hand, and intimidated him. The complainant clarified that only accused No. 13 condemned them.
(m) After that, the complainant brought this fact to the notice of the police and showed them their swollen left hand.
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However, the police did not register FIR till 10.30 p.m. due to the .
mischievous conduct of the Sub Inspector.
3. On the above facts, the complainant alleged in the complaint that accused persons committed the following acts: -
(i) The accused No.1 Smt. Nirmala Devi, the then Pradhan of Panchayat, persuaded herself to be a public servant, whereas she was not so, and thus committing an offence punishable under Section 170 IPC.
(ii) The accused No. 2, Bhajan Singh, Member of the Nagar Panchayat, abetted the offence of accused No.1 and thereby committed the same offence.
(iii) All the accused have committed offences punishable under Sections 500, 504, and 506 IPC, and by criminally trespassing in the house of the complainant, they also committed offence under Section 451 read with Section 149 IPC.
(iv) The accused No. 6, 7, 9, 10, 13, and 14, namely, Raj Rani, Aruna Sharma, Santosh Kumari, Kamlesh, Laxmi Devi, and Kamla Devi, made derogatory remarks, committing offenses punishable under Section 500 and 504 IPC.::: Downloaded on - 04/01/2020 20:27:47 :::HCHP
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(v) Accused No. 8 and 12 Ashok Kumar and Om Prakash .
criminally intimidated the complainant to do away his life and limb and thereby committed an offence punishable under Section 506- Part II, IPC.
(vi) Accused No. 6 and 7 Raj Rani and Aruna Sharma by holding the collar of his shirt, committed an offence punishable under Section 355 IPC.
(vii) Accused No. 6 by giving him beatings with a slipper, committed an offence punishable under Section 323 and 500 IPC.
Accused No. 6 also committed an offence under Section 506 (II) IPC, by criminally intimidating him, and even an offence under Section 452 IPC by criminally trespassing the house of the complainant.
(viii) The accused No. 6, 7, 9, 10, and 14, namely, Raj Rani, Aruna Sharma, Santosh Kumari, Kamlesh, Laxmi Devi, and Kamla Devi, committed an offence punishable under Section 500 IPC by beating their breast.
(ix) The accused No. 1 and 2, Nirmala Devi, and Bhajan Singh have committed offences punishable under Sections 323, ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...7...
355, 452, 500, 504, and 506 IPC by keeping quite being public .
servants.
4. In paragraph 14 of this complaint, the complainant mentioned that he had filed a similar complaint against accused No. 1 and 2, which was registered as Complaint Case No.86-I-2000, RBT No. 4-I-2005, which was dismissed erroneously on account of non-prosecution, by order dated Feb 18, 2006, passed by ACJM, Una. He further states that the Sessions Judge upheld the said order and, after that, affirmed erroneously by the Hon'ble High Court in Cr.MMO No. 120/06, vide order dated December 1, 2006.
5. After the dismissal of the first complaint, on Oct 10, 2007, the petitioner filed the second complaint dated Sep 21, 2007. The office registered this new complaint as Cr. Complaint No. 136-II-07.
6. Vide order dated Mar 25, 2008, the Addl. Chief Judicial Magistrate took cognizance of the offence and posted the matter for preliminary evidence.
After recording the evidence of the complainant, and taking on record the documentary evidence, vide order dated Feb 13, 2009, the Additional Chief Judicial Magistrate dismissed the complaint without proceeding under Section 468 CrPC.
7. The petitioner challenged this order of dismissal by filing a Revision Petition before Sessions Court, Una. Vide order dated May 13, 2010, passed in Criminal Revision No. 10/09, Additional Sessions Judge, Fast Track Court, Una, set-
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aside the order dated February 13, 2009, and remitted the complaint to the Judicial .
Magistrate, to decide the same following the law.
8. Vide order dated Dec 31, 2010, Judicial Magistrate 1st Class, Una, HP., did not find prima facie grounds to proceed against the accused and held that the evidence found in the inquiry is not sufficient to summon the accused. The Judicial Magistrate further held that issuance of process against the accused should amount to a misuse of process of law, and accordingly, she dismissed the complaint under Section 203 CrPC. r
9. The petitioner challenged this order by filing a criminal revision under Section 397 of the CrPC before the Sessions Court, Una. Vide judgment dated Sep 24, 2012, passed in Criminal Revision No. 2-X of 2011, Sessions Judge, Una upheld the order dated Dec 31, 2011, and dismissed the criminal revision.
10. Challenging the order of dismissal of the complaint, the complainant has come up before this Court by filing the present petition under Article 227 of the Constitution of India read with Section 482 of the CrPC, seeking prosecution of the accused persons by issuing the process under Section 204 CrPC.
11. The petitioner has further stated in the prayer clause that in both the impugned orders, the Court has passed baseless disparaging remarks against the petitioner, and he has prayed to expunge the said remarks.
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12. I have heard Shri Dinesh Chander Sharma, the complainant, who .
appeared in person, and counsel for the respondents. I have also waded through the entire record.
DISCUSSIONS AND REASONING:
13. The petitioner in paragraph 14 of the complaint, dated Sep 21, 2007, very candidly admits that a similar complaint filed by him was dismissed for non-
prosecution, vide order dated Feb 18, 2006, and the Sessions Court finally upheld the same, and so did this Court. The relevant portion of paragraph 14 is extracted as follows: -
"The complainant instituted complaint case No. 86-I-2000 RBT No. 4-I-2005 which was dismissed erroneously on account of alleged non prosecution on 18.02.2006 by learned ACJM, Una when the procee under Section 204 Cr.P.C. was still not issued against the accused. The Sessions Judge, Una upheld the said order which was erroneously affirmed by Hon'ble High Court, Shimla in Cr.MMO No. 120/06 on 1-12-2006."
14. The previous complaint, as mentioned in paragraph 14, was dismissed for want of prosecution by Judicial Magistrate 1st Class, Court No.1, Una, vide order dated Feb 18, 2006. The said order reads that in the morning at the pre-
lunch session, the complainant was absent, and the Court called the case again at ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...10...
2.45 p.m., and then finally at 3.30 p.m., but the complainant did not appear. Thus, .
the Judicial Magistrate was left with no alternative and dismissed the complaint for non-prosecution under Section 256 CrPC. The complainant challenged the said order before Sessions Court, Una, by filing a criminal revision petition under Section 397 CrPC. Vide order dated Jun 8, 2006, passed in Cr. Revision No. 6 of 2006, Sessions Judge, Una, dismissed the criminal revision.
15. While upholding the order of dismissal, learned Sessions Judge did not accept the explanation offered by the complainant about the mistake in noting down the date.
16. The complainant challenged the order of dismissal passed by Sessions Judge before this Court. Vide order dated December 1, 2006, passed by Hon'ble the Chief Justice, in Cr.MMO No. 120 of 2006, dismissed the same, after hearing the petitioner.
17. The dismissal of the complaint due to non-appearance of the complainant amounts to the acquittal of the accused. Acquittal under Section 256 CrPC is different from the dismissal of the complaint under Section 203 CrPC. When the Judicial Magistrate dismisses the complaint under Section 203 CrPC, then after explaining, the complainant can refile the complaint. However, once the Judicial Magistrate dismissed the complaint under Section 256 CrPC, then it amounts to the acquittal of the accused. Once the accused is acquitted, then Article 20 Clause (2) ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...11...
of the Constitution of India comes into operation. Similarly, Sections 362 and 392 .
CrPC, protect the accused.
18. Reference to the following provisions of law and the judicial precedents, would clinch the issue:
19. ARTICLE 20 (2) OF THE CONSTITUTION OF INDIA:
20. Protection in respect of conviction for offences. -
(2) No person shall be prosecuted and punished for the same offence more than once.
a) In Maqbool Hussain vs. State of Bombay, AIR 1953 SC 325, a Constitutional bench of Supreme Court holds, [7] The fundamental right which is guaranteed to Art 20 (2) enunciates the principle of autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a Court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence." (Per Charles J. in Reg. v. Miles (1890) 24 Q. B. D. 423(A)) To the same effect is the ancient maxim "Nimo Bis Debet Punir Pro Uno Delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "Pro Eadem Causa" that is for the same cause.
[8] This is the principle on which the party pursued has available to him the plea of "autrefois convict" or "autrefois acquit".
"The plea of 'autrefois convict' or "autrefois acquit" cavers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned....The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arrainged, for the, rule of law is that a person must not the put in peril twice for the same offence, the ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...12...
test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts .
constituting the one are sufficient to justity a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of "autrefois acquit "is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter". (Vide Halbusy's Laws of England-Hailsham Edition - Vol. 9, Pages 152 and 153. Para. 212) [9] This principle found recognition in section 26 of the General Clauses Act, 1897- "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence", and also in S. 403 (1), Criminal P.C., 1898- "A person who has 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 far which a different charge from the one made against him might have been made under S. 236, or for which he might have been convicted under S. 237".
[10] The Fifth Amendment of the American Constitution enunciated the principle in the manner following-
"... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself. . . . "
Willis in his Constitutional Law, at page 528 observes that the phrase ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...13...
"'jeopardy of life or limb' indicates that the immunity is restricted to crimes of the highest grade, and this is the way .
Blackstone states the rule. Yet, by a gradual process of liberal construction the Courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanours." . . . . "Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a Court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impaneled and sworn. It is not necessary to have a verdict. The Protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned".
[11] These were the materials which formed the background of the guarantee of fundamental right given in Art. 20 (2). It incorporated within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.
[12] The words "before a Court of law or judicial tribunal" are not to be found in Art. 20 (2). But if regard be had to the whole background indicated above it is clear that in order that the protection of Art. 20 (2) be invoked by a citizen there must have been a prosecution and punisment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Art 20 and the words used therein:- "convicted", "commission of the act charged as an offence," "be subjected to a penalty", "commission of the offence", "prosecuted and punished", "accused of any offence", would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...14...
prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a .
judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
[13] The rests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, A. I. R. 1950 S. C. 188 (B), in the following passage quoted with approval by Mahajan and Mukherjea JJ. from Cooper v. Wilson, (1937) 2 K. B. 309 at p. 340 (C):
"A true Judicial decision presupposes an existing dispute between two or more parties and then involves four requisites :
- (1) The Presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence: (3) If the dispute between them is a question of law, the submission of legal argument by the parties, and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law."
b). In S A Venkataraman vs. UOI, AIR 1954 SC 375, a Constitutional bench of Supreme Court holds, [5] Although these were the materials which formed the background of the guarantee of the fundamental right given in Article 20(2) of the Constitution, the ambit and contents of the guarantee, as this court pointed out in the case referred to above, are much narrower than those of the Common Law rule in England or the doctrine of "Double Jeopardy" in the American Constitution. Article 20(2) of our Constitution, it is to be noted, does not contain the principle of "autrefois acquit" at all. It seems that our Constitution makers did not think it necessary to raise one part of the Common Law rule to the level of a fundamental right and this make it immune from legislative ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...15...
interference. This has been left to be regulated by the general law of the land.
.
c) In The State of Bombay v. S.L. Apte and Anr., 1961 AIR(SC) 578, the Constitution Bench of Supreme Court holds, To operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence". The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out...
...The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.
d). In Assistant Collector of Customs, Bombay vs. L R Melwani, AIR 1970 SC 962, a Constitutional Bench of Supreme Court holds, ...In order to get the benefit of Section 403, Criminal Procedure Code or Article 20 (2), it is necessary for an accused person to ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...16...
establish that he had been tried by a "Court of competent jurisdiction" for an offence and he is convicted or acquitted of .
that offence and the said conviction of acquittal is in force. If that much is established, it can be contended that he is not 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 Section 236 or for which he might have been convicted under Section
273....
20. SECTION 300 (1) CRPC:
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 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 ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...17...
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 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. Illustrations
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust.
(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.
(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
(d) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless this case comes within sub-section (3) of this section.
(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, robbery on the same facts.
(f) A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.
a). In Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao and Anr, (2011) 2 SCC 703, Supreme Court holds, ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...18...
[6] Thus, it can be seen that Section 300(1) of Code of Criminal Procedure is wider than Article 20(2) of the Constitution. While, .
Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Code of Criminal Procedure states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.
b). In Sangeetaben Mahendrabhai Patel vs. State of Gujrat, (2012) 7 SCC 621, Supreme Court holds, [15] This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. (Vide:
Pritam Singh & Anr. v. The State of Punjab, 1956 AIR(SC) 415;
Manipur Administration, Manipur v. Thokchom Bira Singh, 1965 AIR(SC) 87; Workmen of the Gujarat Electricity Board, Baroda v. Gujarat Electricity Board, Baroda, 1970 AIR(SC) 87; and Bhanu Kumar Jain v. Archana Kumar & Anr., 2005 AIR(SC) 626).
[24] In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the ::: Downloaded on - 04/01/2020 20:27:47 :::HCHP ...19...
offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the .
two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
21. Given the analysis of facts and law, I am of the considered opinion that the second complaint was not maintainable.
22. All the disparaging remarks/unparliamentary language used by the Courts below against the petitioner/complainant are expunged and deleted.
23. However, expunging of remarks shall not entitle the complainant to file any case of defamation, damages, civil suit, or any other nature, whatsoever, against the judicial officers against whom he alleged that they had passed such remarks. This stipulation is made to safeguard the interest of such officers whose actions were not malafide; simultaneously, it does not mean that they had any justification for passing those remarks against the petitioner.
24. Therefore, the petition is partly allowed in the terms mentioned above.
The pending application(s), if any, also closed. Registry to return the records.
January 3, 2020 (Anoop Chitkara)
(TM) Judge
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