Bhagat Ram vs State of Haryana

K.P.S. Sandhu, J. (Oral)

This is a revision petition filed by Bhagat Ram against the order of the Special Judge, Jind, dated 28th July, 1984, vide which the petitioner was ordered to be charged under sections 420 and 163 of the Indian Penal Code.

The facts which gave rise to this petition are as follows. The petitioner and his coaccused Deva are alleged to have committed offences under sections 420 and 163 I.P.C in April, 1977. This matter was reported to the police by Jati complainant on 29th October, 1979, and the case against the petitioner and his coaccused was registered on 29th March, 1980. The challan was put in the Court of the Judicial Magistrate, First Class, Narwana. The learned Magistrate vide his order dated 24th April, 1982, gave the benefit of doubt to the petitioner and acquitted him of the charges. However, the coaccused of the petitioner was held guilty had was convicted and sentenced under sections 420 and 163 of the Indian Penal Code. Aggrieved by the order of his conviction and sentence, Deva Singh went up in appeal in the Court of Session. The appeal came up for hearing before Shri M.K. Bansal, Additional Sessions Judge, Jind. The main argument raised by Devan Singh appellant, coaccused of the petitioner, was that since an offence under section 163 of the Indian Penal Code was triable exclusively by the Special Judge so the trial of the case by the Court of the Judicial Magistrate First Class was illegal. The learned Additional Sessions Judge allowed the appeal, set asdie the conviction of Deva Singh appellant and observed that the acquittal of the appellant would ot debar the prosecution from presenting a fresh challan against him before the competent Court. The prosecution then submitted a challan against the petitioner and his coaccused Deva Singh under Sections 420 and 163 of the Indian Penal Code on 12th March, 1983, in the Court of the Special Judge. The petitioner raised an objection before the learned Special Judge that since the Magistrate was competent to try an offence under section 420 of the Indian Penal Code of which the petitioner had been acquitted, so his acquittal of the offence under section 420 of the Indian Penal Code became final and that as far as the offence under section 163 of the Indian Penal Code was concerned the trial for the same was barred by limitation under section 468 of the Code of Criminal Procedure. However, the learned Special Judge vide his order dated 28th July, 1984, overruled the objection. The petitioner has thus come upto this Court in revision against the aforesaid.

Notice was issued to the State but the office of the AdvocateGeneral, Haryana, has informed that nobody would appear in this case on behalf of the State.

Mr. Hari Mittal, learned counsel for the petitioner, has contended in the first instance that since the petitioner was acquitted by the trial Magistrate and no appeal or revision was preferred against the order of acquittal, that order became final and that the petitioner cannot be retired. But I do not find any substance in this contention because the trial of the petitioner under section 163 of the Indian Penal Code by the trial Magistrate was not a trial by a competent Court since the trial Magistrate did not have the jurisdiction to try an offence under section 163 of the Indian Penal Code.

The second contention raised by Mr. Hari Mittal is that the trial Magistrate was certainly competent to try an offence under section 420 of the Indian Penal Code and that the trial of the petitioner for an offence under section 420 of the Indian Penal Code and acquittal of the same was not improper in any way. To support this contention he has relied on a Division Bench authority in State of Mysore v. Dattatray Nagapaa, A.I.R. 1960 Mysore 86. In Dattaraya Nagapa''s case (supra) the accused was tried by a Judicial Magistrate First Class for offences under sections 409 and 477 of the Indian Penal Code. Although the Magistrate was competent to try the accused for an offence under section 409 of the Indian Penal Code but he was certainly not competent to try him for an offence under section 477 of the Indian Penal Code. It was held that the trial and acquittal of the accused under section 409 of the Indian Penal Code was proper although his trial under section 477 of the Indian Penal Code was not proper.

Mr. Hari Mittal thus contended that the trial and acquittal of the petitioner under section 420 of the Indian Penal Code is valid and proper and that the trial of the petitioner under section 163 of the Indian Penal Code is hit by section 468 of the Code of Criminal Procedure since the term of imprisonment which can be awarded for an offence under section 163 of the Indian Penal Code does not exceed one year and as per section 468(2)(b) of the Code of Criminal Procedure the limitation for taking cognizance of an offence under section 163 of the Indian Penal Code is one year. The offence was allegedly committed in the year 1977 and the chalan was now put in the Court of the Special Judge in 1984. So, I find considerable force in the contention of the learned counsel. Not only that the cognizance of an offence under section 163 of the Indian Penal Code is barred by limitation, but in the situation the retrial of the petitioner would amount to an abuse of the process of the Court. Consequently I allow the revision petition and set aside the impugned order of the learned Special Judge.