Balchu vs Sheomangal

Shivdayal, J.—This revision is directed against the conviction of Balchu Petitioner u/s 497 of the Penal Code. He has been sentenced to pay a fine of Rs. 200/- and in default, to suffer simple imprisonment for one month. The conviction and the sentence have been maintained by the Additional Sessions Judge. Ambikapur.

The case for the complainant Sheomangal was that Mst. Rukman was his legally married wife, whom the accused Balchu remarried and committed adultery with her.

The fact of remarriage and the accused living with Mst. Rukman as her husband and also the fact that Mst. Rukman gave birth to a child by Balchu are admitted. The only question raised in this revision is whether the conviction could be sustained when the Petitioner had been earlier tried for offence u/s 494 of the Penal Code and had been acquitted of that charge on the finding that at the time when Mst. Rukman went away with Balchu, the marriage between her and Sheomangal was not subsisting Learned Counsel appearing for the Petitioner has invited my attention to the judgment in Criminal case No. 1947 of 1957 in the Court of Magistrate First Class, Ambikapur. I have carefully perused that order which is dated November 4, 1958. There Balchu was prosecuted for the offence u/s 494 of the Penal Code for having enticed away Mst. Rukman. The judgment of that case shows that the accused was acquitted because there had been a caste Panchayat before which Sheomangal refused to take back Mst. Rukman and that according to the caste custom she was treated as divorced so that Balchu was not guilty of the offence u/s 494 of the Penal Code. To-day I am not called upon to go into the correctness or otherwise of that judgment. The question precisely before me is whether that decision operated as a bar to the present trial. If there was a subsisting marriage between Mst. Rukman and Sheomangal, there could be no possibility of an acquittal in the previous trial. A fortiori, the present charge u/s 497 also cannot be sustained. Undoubtedly this was putting the accused in peril twice for the same cause. This will be governed by the principle of res judicata-a principle based on public policy. It is not correct to think that that principle is confined to civil suits. The maxim res judicata pro veritate accipitur is a sacred one and has been applied wherever possible. It will not be a complete statement to say that the only effect of the acquittal pronounced in the former case was that the accused could not be tried again for that very offence. He could not be tried for an offence u/s 497, after his acquittal in the former case of the offence u/s 494 on the finding that the marriage of the woman with the Complainant was not subsisting. The observations in Sambasiyam v. Public Prosecutor, 1950 A.C. 458, cited by their Lordships in Pritam Singh and Another Vs. The State of Punjab, , are apposite. See also Banwari v. State of Rajasthan 1961 SCN 87. It is remarkable that the present complaint was filed on November 3, 1959, i. e., exactly after one year of the decision in the former trial. This is a clear case of a vexatious complaint.

Before I leave this case, I am constrained to observe that the learned Additional Sessions Judge, Ambikapur, does not appeal to have applied his mind at all either to the judgment in the previous trial or to its legal implications. His judgment is perfunctory and superficial. He did not bear in mind the real point for determination. Without looking at Section 40 of the Evidence Act and the decision of the Supreme Court in Pritam Singh''s case (supra), he skipped over the implication of the previous acquittal by saying:

The lower Court was right in not taking into consideration the judgment in Criminal Case No: 1947/57 dated 4-11-58. The lower Court has given cogent reasons.

This revision is allowed. The judgment and order of both the Courts below are set aside. The conviction and the sentence are set aside. The accused is acquitted. Fine, if recovered, shall be refunded to him.