Gauri Shanhar Rai and Others vs Emperor

Ray, J.—This motion is directed against an order passed by the Sub-divisional Magistrate Bettiah, complaining against the petitioners for having" committed an offence u/s 188, Penal Code.

The complaint is to the effect that the petitioners were served with an order u/s 144, Criminal P.C. on 20-7-1945, restraining them from going over the Bhikhampur zirat lands in dispute or to commit any breach of peace over the same which was made absolute by an order dated 9-8-1945, and that the petitioners in disobedience of the said order entered upon the land in question forming themselves with others into an unlawful assembly armed with deadly weapons and committed a riot and caused bodily injuries to the persons of the first party who were lawfully employed in ploughing the lands on behalf of Parsa Farm.

The petitioners in moving this Court for quashing the proceedings advanced two contentions, namely, (1) that the prohibitory order u/s 144 commenced to operate from 9-6-1945, and was spent up by 17-8-1945, which is alleged to be the date of occurrence in the complaint referred to and any subsequent order of 18-7-1945, alleged to have been served on the petitioners on 20-7-1945, is without jurisdiction as it offends against the principle that there can be no successive orders u/s 144, Criminal P.C., having the effect of extending its duration for more than two months, and (2) that the proceeding initiated upon the complaint of the Sub-divisional Magistrate, referred to above, is barred by the principles of autre fois acquit. This latter contention, is based upon the undisputed fact that these petitioners were tried under Sections 147 and 323, Penal Code on the self-same facts and the same occurrence, and were acquitted by a competent Magistrate by his order dated 4-12-1945.

The facts relating to and relevant for the first contention are as follows: The Sub-divisional Magistrate of Bettiah passed an order against the petitioners as members of the second party on 9-6-1945, u/s 144 by which he restrained them from going over the Bhikhampur zirat lands in dispute between the parties or to commit any breach of peace over the said lands. In pursuance of the notice the manager of Lauriya Farm, as representing the first party, appeared and gave an undertaking not to disturb the status quo on 16-6-1945. On the following date fixed for hearing the parties, that is, on 28-6-1945, the Magistrate heard arguments for both sides and reserved orders. On 18th July he rescinded the order u/s 144 with the following observations:

Perused record. The learned lawyer for the second patty has argued that notices u/s 144, Criminal P.C., have not been served on them in respect of the disputed land and so the proceeding is not maintainable.

I have looked at Section 144 notice served on the second party, and I find that no mention of plots or of the area involved in dispute has been mentioned. He, however, got another written order u/s 144, Criminal P.C., served on both parties in relation to the lands specifically mentioned therein. After both parties showed cause and were heard, the learned Magistrate made the order absolute against the members of the second party, namely, the petitioners, and rescinded the order against the first party.

On these facts, it is contended that as the original order prohibiting the parties from entering upon the land was passed on 9-6-1945, the order must be taken to have spent its force by 9-8-1945, and the petitioners, therefore, by entering upon the land and committing riot, if it is granted that they have done so, have not disobeyed any lawful order that was then in force. In support of this argument, it is pointed out that the issue of a second prohibitory order by the Magistrate on 18-7-1945, was in the Miscellaneous case No. 63 and the order absolute was passed in the selfsame case. In my judgment, this contention is ill-founded because what Section 144 means by limiting the duration of such order, except under special circumstances referred to in the section, to two months is with regard to orders that are valid and orders that are made absolute. If the preliminary order is rescinded either against one of the parties or against both, it becomes ineffective for all purposes since the date of rescission. So this order which originated on 9-6-1945, ceased to exist as a prohibitory order u/s 144 on and since 18-7-1945. There was no order in force since 18-7-1945 till 9-8-1945, as it is urged by the learned Counsel for the petitioners. The first order which commenced operating on 9-6-1945, was found on the contention advanced on behalf of the petitioners, to be one not in accordance with law. That contention may or may not be sound, and it may be that so far and so long that order was in operation, both parties understood what the lands in dispute were and in relation to which they had been prohibited entrance upon, yet the Magistrate either rightly or wrongly rescinded the order. I am not satisfied on consideration of the authorities cited by the learned Counsel, namely, Ashutosh Roy and Others Vs. Haris Chandra Chattopadhya and Others, and Inderdeo Narayan v. Durga Prasad Singh. AIR 1936 Pat. 59 that when the Magistrate for some reason or other cancels a proceeding he is prevented from starting another proceeding if the emergency of maintaining peace still continues. This is not a case in which a prohibitory order u/s 144 has been fully in operation for a statutory period of two months by way of avoiding the law. The Magistrate took recourse to another proceeding. No case has been cited to me which establishes the point that if a proceeding initiated u/s 144, Criminal P.C., is cancelled as being defective, that will prevent the Magistrate from initiating a valid proceeding and passing therein an effective order to enure in its operation, for the statutory period of two months. In my view, therefore, there is no substance in this point.

With regard to the second point, it is to be stated at the outset that if the petitioners are put on trial on the complaint filed by the Sub-Divisional Magistrate, the terms of which have been set forth above, they will be tried twice over again on the same facts and on the same occurrence. The question that is raised is that even though the circumstances of the case do not bring it within the four corners of Section 403, Criminal P.C., as a matter of prudence and wisdom underlying the policy of administration of criminal law, no accused shall be tried twice on the same facts and on the same occurrence in the absence of any statutory provision to the contrary. Section 403, Criminal P.C., lays down in Sub-section (1) that:

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 u/s 236, or for which he might have been convicted u/s 237.

In view of this Sub-section, it is contended that the bar of autre fois acquit is confined to the circumstances provided for in the said Sub-section and once a case falls outside the pale of that Sub-section, there is nothing in the criminal law to prohibit a second trial even though it be on the same facts and for the same occurrence.

As at present advised, I am not inclined to accept this proposition for more than one reason which I am mentioning below. The section in its constituent parts enacted as different Sub-sections and an explanation goes to provide not only what cannot be done but also what can be done. On close examination of these Sub-sections and on consideration of the principle behind the section as a whole, it seems very clear to me that the section in effect intends to lay down that generally no accused shall be vexed with more than one trial for offences arising out of the same set of facts. In sub Section (2) of the section it is provided that on a case falling under Sub-section (1) of Section 235 a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him. This brings me to Sub-section (1) of Section 235 which runs as follows:

If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

Under this Sub-section different offences as contemplated, do not arise out of the same set Of facts. They do arise in one series of acts so connected together as to form the same transaction, that is to say, when there is a series of acts connected together as to form the same transaction, different acts committed in course of the same transaction may give rise to or bring into existence different offences. The acts are different and necessarily the facts which amount to the acts must be different though the different offences arising out of the different acts may form the subject-matter of separate charges in one trial; that does not mean that either the facts or acts are identical. In my view, therefore, Sub-section (2) of Section 403 does not militate against the view that the mischief aimed at by the section is "trying the accused persons over again on the same facts."

Then let us examine Sub-section (3) which says that:

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 ha 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.

The last portion of the sub section beginning with the words "if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted" is decisive. It is implicit in the Sub-section that where the consequences had already happened, or were known to the Court to have happened, it would not be permissible to try the accused over again for the separate offence which is constituted on account of the consequence happening. A case contemplated under this Sub-section does not fall u/s 236 or Section 237, Criminal P.C., referred to in Sub-section (1) of Section 403.

I would next consider Sub-section (4). This Sub-section is an enabling one and provides that if the Court by which a person was tried and either acquitted or convicted of any offence constituted by any acts be not competent to try the person for another offence constituted by the same acts, then the person concerned may be tried over again for an offenee constituted by the same acts. The Legislature has been cautious enough to use the word "may" in Sub-section (4) leading to the inference that the principle of natural justice must be kept in view while permitting a second trial in the eventuality referred to in the section. This also inferentially leads one to think that what the section aims at, is that no accused should be vexed with more than one trial for offences constituted by the same set of facts. Sub-section (5) makes the matter further clear, This Sub-section provides, inter alia, that "Nothing in this section shall affect the provisions of Section 26, General Clauses Act, 1897, or Section 188 of this Code." Section 26, General Clauses Act, runs:

Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

In my view, this very strongly emphasises the view that I am taking of the principle underlying Section 403, Criminal P.C. I have no hesitation in holding that the bar of autre fois acquit is not confined to cases falling within Sections 236 and 237, Criminal P.C. In case the section is so construed. I am inclined to think that the section like Section 11, Civil P.C., is not conclusive on the principles of autre fois acquit, or if I may say so, the principle of res judicata in the administration of criminal law. To illustrate myself I will call attention to sub-as. (2) and (3) of Section 235. It may be noticed that Sub-section (2) of Section 403 excepts cases falling u/s 235, Sub-section (1) from the bar and pre-eminently, as I have already said, on the ground that a case contemplated therein does not involve more than one trial on the same facts. Sub-section (2) of Section 235 has rather contemplated cases in which if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for each of such offences. It would be absurd to contend that a man can be tried once for the acts alleged for one offence falling under one definition of any law constituted by the acts and after his conviction or acquittal, he may be again subjected to another trial for another offence defined under any other law in force and constituted by the same acts. Cases are easily conceivable in which the same acts may constitute not only two but a number of offences under the Penal Code as well as under any other special law. Can it be conceived that while the Legislature provides that all the offences constituted by the same acts can be tried in one trial, it will be open to the prosecution to have the luxury of trying the man over and over again for the same acts but for different offences as defined by law in force. The learned Counsel for the petitioners has referred me to the following cases, namely, Rangachariar v. Venkatasami Chetti AIR 1935 Mad. 56. Fatteh Muhammad v. Emperor AIR 1926 Lah. 639, and Manhari Chowdhuri v. Emperor AIR 1918 Cal. 406. Except some observation in AIR 1935 Mad. 56 and AIR 1926 Lah. 639, the other oases might not be strictly in point but they illustrate the view that I am making out, namely, that the intention of the Legislature in enacting Section 403 is that an accused should not be vexed with more than one trial on the same facts.

The learned Counsel, Mr. Baldeo Sahay, appearing for the opposite party (private), the Crown not being represented before me, urges that Sub-section (4) of Section 403 makes it clear that if the Magistrate was not competent to convict the petitioners u/s 188, Penal Code, an offence arising on the same facts, they can certainly and ought to be tried for the latter offence. He further submits that in order to constitute an offence u/s 188, it is not necessary for the prosecution to go so far as to establish that the petitioners were members of an unlawful assembly armed with deadly weapons and that they committed rioting. If the prosecution succeeds in proving that the petitioners entered upon the land with the intention of committing such acts, or with such consequences as are referred to in Section 188 which may fall far short of offences of rioting, the petitioners could be lawfully convicted u/s 188. That the Magistrate was not competent to convict the accused persons u/s 188 on the same facts is based upon his submission that a trial for an offence u/s 188 has to be initiated only by a complaint by the Magistrate whose order has been disobeyed. From the facts submitted to me, it appears that the Magistrate made his complaint on 22-11-1945, and the trial of the accused persons for the same occurrence and on the same facts on which they could have been convicted u/s 188, Penal Code, was still proceeding before the trial Court. In fact that was the date when the prosecution witnesses of the case of rioting against the petitioners in the Court of the second class Magistrate were cross-examined. The bar, therefore, to the trial of these persons for an offence u/s 188 was thereby removed, and the prosecution should have found its way to transfer the case arising out of this complaint to that Court which then could have charged them u/s 188 either Alternatively or in addition to a charge of rioting. This procedure is permissible u/s 235 Sub-section (2), Criminal P.C., which has just been noticed. Under the circumstances, the prosecution cannot be allowed to have the luxury of taking another chance of getting the petitioners convicted after failing to substantiate the charges of rioting and assault based upon the same facts. I have had the advantage of reading the order of acquittal of the petitioners of the charge u/s 147 read with Section 323, and the learned Magistrate after coming to a finding that on ''the alleged date of occurrence the near and dear relations of the petitioners died of cholera and that cholera was prevailing in epidemic form in that place holds it impossible that such an occurrence should have taken place.

Under the circumstances, I am clearly of opinion that it is against the principles of administration of (criminal) justice to allow the contemplated trial based upon the belated complaint of the Subdivisional Magistrate to take place to the extreme harassment of the petitioners. It would in fact amount to allowing an indulgence to the prosecution to have the luxury of prosecuting, whatever be the result, the accused persons. I find it remarkable that the learned District Magistrate though served with notice of this motion has not thought it his worth while to get the Crown represented in order to oppose the motion. This also throws a flood of light upon the circumstances of the case. In conclusion, I would quash the proceedings in the Court below arising out of the complaint of the Sub-divisional Magistrate referred to above dated 22-11-1945. The rule is made absolute.