Punjab-Haryana High Court
Raj Kaur And Another vs Bahadur Singh on 7 September, 2012
Author: Sabina
Bench: Sabina
Crl.No. 440 of 2008 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Date of Decision: September 07, 2012
Criminal Revision No. 440 of 2008
Raj Kaur and another................................................Petitioners
Versus
Bahadur Singh...........................................................Respondent
Criminal Revision No. 457 of 2008
Ranjit Singh @ Makhan Singh
and another ................................................Petitioners
Versus
Bahadur Singh...........................................................Respondent
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Aakash Singla,Advocate for the petitioners.
Mr.Angel Sharma Advocate for the respondent.
Sabina, J.
Vide this judgment, the above mentioned two petitions would be disposed of as the petitioners have challenged the order dated 12.2.2008 passed by the learned Additional Sessions Judge,Barnala while allowing the revision petition filed by the complainant. The complainant filed the complaint against the petitioners under Sections 406/34 of the Indian Penal Code (`IPC' for short).
Crl.No. 440 of 2008 2
The case of the complainant-Bahadur Singh, in brief, was that his daughter-Jaswinder Kaur @ Baljinder Kaur was married to Ranjit Singh on 21.1.1996. On 30.5.1996, his daughter had been murdered by the petitioners and their co-accused. In this regard, FIR No.60 dated 30.5.1996 was registered against them under Sections 302, 304-B and 498-A read with Section 34 IPC at Police Station Tapa. The trial Court convicted accused-Baldev Kaur, Raghbir Singh and Ranjit Singh vide judgment dated 26.11.1998 under Section 304- B/34 IPC. At the time of marriage, sufficient dowry was entrusted to the accused. However, when the complainant demanded the dowry articles from the accused on 26.11.1998, they refused to hand over the same to the complainant. The complainant approached the Police Station Dhanaula for initiating the proceedings against the accused but they expressed their inability to take action against the accused and, hence, the complaint in question was filed.
In support of his complaint, the complainant led his preliminary evidence. The trial Court vide order dated 5.4.1999 ordered the summoning of the accused under Section 406/34 IPC.
Thereafter, the complainant led his pre-charge evidence. The trial Court, after hearing the parties, vide order dated 24.8.2004 dismissed the complaint and consequently, the accused were discharged. Aggrieved against the said order, the complainant preferred the revision petition.
The Court of revision vide impugned order dated 12.2.2008 allowed the revision petition and directed the trial Court to apprise the evidence in the light of observations made in the order Crl.No. 440 of 2008 3 and pass a fresh order vis-a-vis the framing of charge against the accused. Hence, the present petition by the accused.
Learned counsel for the petitioners has submitted that after the unnatural death of Jaswinder Kaur @ Baljinder Kaur, FIR No.60 dated 30.5.1996 under Sections 302, 304-B and 498-A read with Section 34 IPC was registered against Ranjit Singh, husband of Jaswinder Kaur @ Baljinder Kaur and his parents-Raghbir Singh and Baldev Kaur. Since in the said case, the accused had already faced the trial, the complaint under Section 406 IPC moved by the complainant was liable to be dismissed as it would amount to double jeopardy.
Learned counsel for the petitioners has placed reliance on Kuljit Singh vs. Jasbir Singh 2002(4) RCR(Criminal) 707 wherein it was held as under:-
"This Section embodies the ancient maxim "nemo debet bis vexani pro eadem causa" ( no person should be twice disturbed for the same cause). One of the principle of this Section is that where an accused can be held at one trial for several offences and has not been so tried for all the offences but only for a few he should not be put again in jeopardy for the offences for which he could have been tried at the time but had not been tried. From the bare reading of the aforesaid Section, it is clear that if a person, who has once been tried by a Court of competent jurisdiction, for an offence and he has been convicted or acquitted for such an offence, shall not be tried again for the same offence or for Crl.No. 440 of 2008 4 any other offences, for which a different charge from the one made against him might have been made under Section 221(1) of the Code or for which he might have been convicted under sub-section (2) thereof. Sub-section (1) of Section 300 of the Code consists of two limbs. The first limb deals with the case of a person, who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence. Such person shall not be liable to be tried again for the same offence while such conviction of acquittal remains in force. The second limb of the sub-section deals with 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. The case of the petitioner is covered under second limb of this sub-section.
Though in the police case, the petitioner and his parents were charged for offences punishable under Sections 302/304-B/34 IPC and they were not charged for offences punishable under Sections 406/498-A IPC, but on the basis of the facts alleged in the FIR, the challan and the evidence came before the Court during the trial, they could have been charged under these offences in exercise of power given under Section 221 (1) of the Code. But neither the complainant/prosecution nor the Court called upon the petitioner and his parents to face trial for offences under Crl.No. 440 of 2008 5 Sections 406/498-A IPC though the allegations constituting these offences were very much available. The petitioner has been convicted and his parents have been acquitted in the earlier trial vide judgment dated August 6,1998. In view of this fact, the petitioner and his parents cannot be tried again on the basis of the present complaint. This view of mine is supported by a decision of this Court Narinder Singh vs. State of Punjab, 1985(2) Recent Criminal Reports 152 where an accused tried and acquitted of offences under Section 5(2) of the Prevention of Corruption Act then such accused could not be retried for offences under Sections 147/158/224/225 IPC. Thus, in view of Section 300 (1) of the Code, the present complaint filed by respondent No.1, brother of the deceased, is liable to be quashed, as the petitioner and his parents cannot be tried again for an offence under Sections 406/498-A IPC on the allegations made therein."
Learned counsel for the respondent,on the other hand, has submitted that in view of Section 6(3) of the Dowry Prohibition Act, 1961, the dowry articles were liable to be returned to the complainant. Complainant had filed a civil suit for recovery of dowry articles. The trial Court had dismissed the suit. However, in appeal, the suit filed by the complainant was decreed. Regular Second Appeal No. 3333 of 2005 against the judgment and decree passed by the First Appellate Court was pending. As an interim measure in the said appeal, the operation of the impugned judgment and decree Crl.No. 440 of 2008 6 passed by the First Appellate Court was stayed provided the entire decretal amount of ` 1,68,000/-was deposited by the appellants before the Executing Court.
After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed.
In the present case, Jaswinder Kaur @ Baljinder Kaur daughter of the complainant was married to petitioner-Ranjit Singh on 21.1.1996. Jaswinder Kaur @ Baljinder Kaur died an unnatural death on 30.5.1996. FIR No.60 dated 30.5.1996 under Sections 302, 304-B and 498-A read with Section 34 IPC at Police Station Tapa was registered against Baldev Kaur, Ranjit Singh and Raghbir Singh and Raj Kaur. After investigation of the case, challan was presented against accused-Baldev Kaur, Ranjit Singh and Raghbir Singh. So far as petitioner Raj Kaur is concerned, she was found innocent during investigation and the application moved by the prosecution for summoning her as an additional accused under Section 319 of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.) was dismissed by the trial Court. Vide judgment/order dated 30.3.2006, Ranjit Singh, Baldev Kaur were convicted and sentenced qua the commission of offence punishable under Section 304-B and 498-A IPC. Raghbir Singh had died during trial.
Section 300 Cr.P.C. reads as under:-
"300. Person once convicted or acquitted not to be tried for the same offence.
(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or Crl.No. 440 of 2008 7 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 subsection (2) thereof.
(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges 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.Crl.No. 440 of 2008 8
(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."
Thus, as per the above provision, no person should be tried twice for the same cause. Petitioners-Ranjit Singh and Baldev Kaur had already faced the trial in the State case after the unnatural death of Jaswinder Kaur @ Baljinder Kaur and they were convicted and sentenced by the trial Court qua the commission of offence punishable under Section 304-B,498-A IPC. So far as petitioner-Raj Kaur is concerned, she was found innocent during investigation in the State case and an application moved qua her summoning under Section 319 Cr.P.C. was dismissed by the trial Court. Petitioner-Veer Paul Kaur was not arrayed as an accused in the State case. The complainant or prosecution never sought for trial of the petitioners under Section 406 IPC in the State case though the allegations in this regard were already available to the complainant/prosecution. Now, a second trial can not be held against the petitioners with regard to offence under Section 406 IPC. The complainant has already availed his civil remedy by filing the suit for recovery of dowry Crl.No. 440 of 2008 9 articles and the said matter is pending in this Court by way of Regular Second appeal. However, the complaint under Section 406 IPC was not maintainable as the trial qua the State case after the unnatural death of Jaswinder Kaur @ Baljinder Kaur has already concluded. All the accused were liable to be tried qua all the offences in the said trial arising on account of death of Jaswinder Kaur @ Baljinder Kaur. Learned Additional Sessions Judge has erred in holding that the cause of action with regard to offence under Section 406 IPC had not arisen to the complainant at the time of lodging of the FIR.
In the facts and circumstances of the present case, the complaint filed by the complainant-Bahadur Singh was liable to be dismissed.
Accordingly, both these petitions are allowed. The impugned order dated 12.2.2008 passed by the learned Additional Sessions Judge is set aside.
( Sabina ) Judge September 07, 2012 arya