Muhammad Saleh vs Emperor

Das, J.—I have no doubt whatever that the order of the learned Sessions Judge of Monghyr, directing fresh enquiry with a view to ascertain if offences under sections 366 and 368 or any other section have been committed by the petitioner before me, ought not to be allowed to stand.

It appears that the petitioner was charged u/s 363, Indian Penal Code. The charge was framed against him on the 16th November 1918. On the 4th December 1918 an application was Sled before the Magistrate asking him to frame charges against the petitioner u/s 365, 366 or 368. The learned Magistrate, being of opinion that on the evidence and in the circumstances of the case charges under those sections should not be framed, refused to pass an order in favour of the complainant. There can be no doubt that the learned Magistrate, who was in possession of all the facts, had absolute power to reject the petition filed before him on the 4th December 1918. This order by the learned Sub-Divisional Officer was passed on the 7th January 1919. On the 15th January the complainant moved the District Magistrate of Monghyr asking him to call for the record and to commit the accused to the Court of Session. This application was admittedly made u/s 435 of the Code of Criminal Procedure. This application was refused by the District Magistrate. The petitioner was tried u/s 363 and was acquitted by the Sub-Divisional Magistrate. Thereupon the opposite party made an application for fresh enquiry before the learned Sessions Judge of Monghyr and the learned Sessions Judge of Monghyr has directed that a fresh enquiry be made with a view to ascertain if the offences u/s 366 or 368 or under any other section have been committed by the petitioner. This application is directed against this order of the learned Sessions Judge.

The first point that has been argued before me is that the learned Sessions Judge was incompetent to deal with this matter, the same having been dealt with by the District Magistrate on the 15th January. It is, in my opinion, unnecessary to deal with this point, because I have no doubt whatever that the learned Sessions Judge should not have directed the fresh enquiry in the circumstances of this case.

Now, it is admitted that kidnapping is an essential element in offences u/s 365, 366 or 368. He has already been acquitted of an offence of having kidnapped Musammat Rambatia. It is a well recognised principle that a person should not be put on trial twice for having committed the same offence. It seems to me that he cannot be convicted u/s 365, 366 or 368 unless and until the prosecution establishes that he did kidnap Musammat Rambatia. He has already been tried for that offence and has been acquitted, and in my opinion he should not be tried again for any offence of which kidnapping is an essential element.

I would, therefore, set aside the order passed by the learned Sessions Judge of Monghyr directing fresh enquiry into this matter. No further proceedings will be taken against either of the accused.