Madras High Court
Mokkaraj vs Pandiyammal on 30 August, 2012
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/08/2012 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Crl.O.P.(MD).No.15419 of 2010 & M.P(MD)Nos.2 & 3 of 2012 1.Mokkaraj 2.Mahadevi 3.Muthupillai 4.Karuppu 5.Singam 6.Mayakkal ...Petitioners Vs Pandiyammal ...Respondent/ De-facto complainant PRAYER Petition filed under Section 482 of the Code of Criminal Procedure, to call for the entire records pertaining to the case in C.C.No.105 of 2010 on the file of the learned Judicial Magistrate No.II, Usilampatti, Madurai District and quash the same. !For Petitioners ... Mr.R.Maheswaran for Mr.R.Anand ^For Respondent ... Mr.Prithivi Rajan for Mr.D.Sadiqu Raja :ORDER
It is a classic case in which, the proposed accused are sought to be prosecuted, two times for the same offence otherwise called, double jeopardised which is prohibited by the Constitution of India under Article 20(2).
2.The case of the de-facto complainant is that while drawing drinking water from a public tap, the petitioners assaulted and caused injury to the de- facto complainant, resulting in giving a complaint to the police against the petitioners which was registered in Crime No.9 of 2009 under Sections 342, 324, 323 and 506(ii) IPC r/w Section 34 IPC. The date of occurrence is 23.01.2009. After the investigation, the police filed a charge sheet against the petitioners 1 to 4 and thereafter, at the instance of the respondent, a petition was filed under Section 319 Cr.P.C, by which, the petitioners 5 and 6 were added as A5 and A6. The said case is pending in C.C.No.135 of 2009.
3.When things stand so, subsequently, a private complaint was filed by the respondent against the petitioners which was taken on file by the learned Magistrate in C.C.No.105 of 2010 for the alleged offences said to have been committed by the petitioners on the same day namely on 23.01.2009. As the de- facto complainant initiated proceedings through the private complaint as well as by police complaint for the same occurrence, the petitioners are before this Court challenging the proceedings initiated by the respondent in the private complaint.
4.Mr.R.Maheswaran, learned Counsel appearing for the petitioners would submit that there cannot be any double jeopardy for the same offence which is prohibited as per the Article 20(2) of the Constitution of India. The proceedings are nothing but an abuse of process of law and he relied upon the judgment of the Honourable Supreme Court in G.Sagar Suri and another -vs- State of U.P and others reported in (2000) 2 SCC 636.
5.On the other hand, Mr.Prithivi Rajan, learned Counsel appearing for the respondent/de-facto complainant would submit that the private complaint is based on subsequent occurrence as the petitioners continued to threat the respondent who is a poor lady and therefore, on a different cause of action or different occurrence, the respondent filed a private complaint. As the two occurrences are different, the petitioners can also proceed with the prosecution initiated through police as well as through the private complaint. In fine, he justified the actions of the respondent.
6.Heard the learned Counsel appearing for the petitioners as well as the learned Counsel appearing for the respondent and perused the materials available on record.
7.A perusal of the two complaints namely, the private complaint as well as the charge sheet filed by the police, would disclose that the date of the alleged occurrence is on 23.01.2009, and no different dates are given and the proposes accused in both the cases are the same. Even, the incidents which are explained in both the complaints are the same and they constitute the same ingredients. Though, initially, the petitioners 1 to 4 were shown as accused in C.C.No.135 of 2009, on the petition filed by the respondent/complainant, the left out parties namely R5 and R6 were also added as accused. Even, in the private complaint, all the six accused who are shown in C.C.No.135 of 2009 have been arrayed as accused. No new occurrence has been shown in the subsequent proceedings, even though the learned Counsel for the respondent tried to justify by contending that there was subsequent occurrence. This Court is unable to find any different dates in the subsequent complaint namely a private complaint. Therefore, it is very clear that for the same occurrence, the petitioner is attempting to prosecute and prosecute the petitioners twice for the same offence which is not permissible in law. As rightly contended by Mr.R.Maheswaran, learned Counsel for the petitioner Article 20 prohibits double jeopardye which reads as follows:
"20.Protection in respect of conviction for 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. "
(Emphasis applied)
8. In the Apex Court judgment. G.Sagar Suri and another -vs- State of U.P and others reported in (2000) 2 SCC 636, a Finance Company lodged a police complaint against the borrowers under Section 406/420 IPC and an FIR was registered. Even before that, a complaint under Section 138 of Negotiable Instruments Act, was initiated before the Magistrate and the same was pending against the accused persons namely borrowers. When the criminal proceedings through police initiated was challenged by the borrowers, the Honourable Supreme Court held that the criminal proceedings for the alleged offences under Sections 406/420 amounted to abuse of process of law and accordingly quashed the said proceedings. The relevant portion is extracted hereunder:
"14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly those who are the parents of the Managing Director of Ganga Automobiles Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with the sole purpose of getting the loan due to the Finance Company by browbeating and tyrannising the appellants with criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed."
From the above, it is clear that two proceedings cannot be initiated, against the accused for the same offence. Therefore, the respondent is attempting to abuse the process of law, by initiating two criminal proceedings against the petitioners.
9.For the reasons stated above, the impugned proceedings suffer and are quashed. Accordingly, this Criminal Original Petition is allowed. Consequently, the connected Miscellaneous Petitions are closed.
gsr To
1. The learned Judicial Magistrate,No.II, Usilampatti, Madurai District.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.