Madhya Pradesh High Court
Anil Kumar Gupta vs Anil Kushwah on 18 December, 2018
1 Cr.R. No. 5700/18
THE HIGH COURT OF MADHYA PRADESH
Cr.R. No. 5700/18
(Anil Kumar Gupta Vs. Anil Kushwaha & anr.)
Gwalior, Dated 18/12 /18
Shri Vinod Kumar Bharadwaj, Senior Advocate for the
petitioner.
Shri Yogesh Parashar, Public Prosecutor for the
respondent/State.
Revisional powers of this court u/Ss. 397, 401 of CrPC are invoked to assail the order dated 23/10/18 passed by XIth Additional Sessions Judge Gwalior in case No. 540/17 upholding the order dated 23/9/17 passed by JMFC Gwalior in case No. 1/2013 MJC by which proceedings u/S. 340 CrPC have been launched against petitioner with a direction to prepare and present a complaint u/S. 340 CrPC before the CJM Gwalior.
Leaned senior counsel is heard on the question of admission.
Learned counsel for the petitioner relies upon the provision of section 300 CrPC and Article 20 (2) of the Constitution and draws attention of this court to the interlocutory order dated 20/2/12 vide A/3 of JMFC Gwalior where the trial court warned the petitioner/accused after noticing that Ex. P/1 which was not signed at the time of it's submission before the trial court, was later on signed by the complainant/petitioner herein and on being told about the said mistake committed, the petitioner accepted his mistake which led to the court recording a warning but not taking any 2 Cr.R. No. 5700/18 penal action. In this background, it is submitted that once the trial court on 20/3/12 pardoned the complainant/petitioner for the said mistake, then there was no occasion for the trial court to have subsequently directed, by impugned order dated 29/3/17, for proceeding against petitioner by prima facie finding offence of forgery having been committed by the petitioner in respect of the document Ex.P-1 produced in proceeding before the trial Court.
The trial Court by the impugned order dated 23/9/17 directed preparation of complaint u/S. 340 r/w 195 (b)(ii) CrPC to present the same before the CJM after holding that the offence of forgery in respect of document Ex.P-1 seems to have been committed by complainant/petitioner.
Learned counsel for the petitioner primarily submits by raising the bogey of double jeopardy, that once the petitioner had been pardoned by the trial Court in the earlier order dated 20/3/12 in respect of said incident of appending his signature in Ex.P-1, proceedings u/S. 340 CrPC cannot be initiated or else it would amount to trying and punishing the petitioner/complainant for the same offence in regard to which petitioner has already suffered warning which impliedly amounts to acquittal/condonation.
For proper adjudication of the matter, it would be appropriate to reproduce Article 20 (2) of the Constitution and Section 300 CrPC as under:-
Article 20 (2) of the Constitution
20. Protection in respect of conviction for offences 3 Cr.R. No. 5700/18 (1) xxxxx (2) No person shall be prosecuted and punished for the same offence more than once.
(3) xxxxx Section 300 of 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 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. Illustrations 4 Cr.R. No. 5700/18
(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 the cage 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.
Bare perusal of the aforesaid provisions reveal that the same protect a person from being tried and punished for the same offence in regard to which the said person has already been tried and convicted/acquitted.
When the factual matrix attending the instant case is tested on the anvil of the aforesaid legal provisions, it is seen by the earlier order dated 20/3/12 that the petitioner was neither charged nor tried and therefore there is no question of conviction or acquittal. Trial Court merely noticed the act of petitioner/complainant appending his signature on a document on record and therefore, in it's wisdom decided to 5 Cr.R. No. 5700/18 warn the petitioner/complainant and since the petitioner/complainant accepted his mistake, the trial court did not take any penal action. Thus by no stretch of imagination or by any supportive legal provision can the order dated 20/3/12 be treated as acquittal from any offence. The reason is not far to see. The petitioner was neither tried for the offence of committing forgery qua Ex.P-1 and thus there was no question of any conviction or acquittal. In other words the petitioner was never tried and thus the question of petitioner being subjected to double jeopardy by the impugned order does not arise.
More so the act of the trial judge while passing the order dated 20/3/12 of warning the petitioner cannot lead to condoning of the offence of forgery if at all committed and thus the act of the petitioner in signing Ex.P-1 is always available for the court to be charged and tried against the petitioner/complainant.
In view of above, this court sees no reason to interfere in the absence of any illegality or procedural irregularity or transgression of any jurisdictional limit set by law.
Accordingly, this court declines interference and dismisses this criminal revision sans cost.
(Sheel Nagu) Judge ojha YOGENDR A OJHA 2018.12.2 0 18:08:59
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