Smt. Kitabun and Others vs State of U.P.

N.N. Sharma, J.—This petition u/s 482 of the Code of Criminal Procedure assails the proceedings in Criminal Case No. 176 of 1963, State v. Bashir and Ors. Criminal Case No. 176 of 1963 Under Sections 147/323/452/149/325, IPC pending in the court of Sri Ram Kumar, Special Magistrate, Kanpur so far as Petitioners are concerned.

All the Petitioners are ladles and were accused by Zamin Hussain who lodged an FIR against them and 15 others in police station Cantt. Kanpur relating to an incident dated 14-2-1962. The accusation was that the accused trespassed in his residential house; dragged him out and belaboured him.

It appears that Sri Zamin Hussain filed a complaint against the accused about this incident on 19-7-1962 in the Court of Sri P.D. Tripathi, Magistrate Ist Class Kanpur. It was sent for disposal to Sri N.K. Gupta, Special Magistrate who proceeded to try this case as a warrant case.

Meanwhile police also submitted a charge-sheet against the accused on 5-2-1963 which reached the court. Thereafter the cases were merged by Sri N.K. Gupta, learned Special Magistrate on 19-7-1963 in pursuance of the order of Sri Mithlesh Bahadur, Judicial Magistrate, Kanpur.

Sri M.C. Singh who tried both these cases examined the complainant and discharged the Petitioners on 19-4-1965. That order of discharge became final as no revision etc. was preferred against it. Sri Ram Kumar, Special Magistrate, Kanpur framed charges on 25-5-1978 against all the accused including the Petitioners despite the objection preferred by the Petitioners that the order dated 19-4-1965 operated as a bar to the trial of the Petitioners.

I have heard learned Counsel for the parties and considered over the matter. It appears that the Petitioners were discharged by the learned Magistrate in a warrant case relating to cognizable offences. Such order of discharge amounted to acquittal and the Petitioners could not be retried for the same offences in view of Section 403 of the old Code of Criminal Procedure (Act No. 5 of 1898).

So the proceedings against them are illegal and liable to be quashed. Thus the petition is allowed. Proceedings against the Petitioners only pending in the court of Sri Ram Kumar, Special Magistrate Kanpur in case No. 176 of 1963, State v. Bashir case No. 176 of 1963are quashed. However, it is made clear that the case shall proceed against co-accused of Petitioners in accordance with law. As the case has become very old so let the record of this case be sent forthwith to the court of Chief Metropolitan Magistrate for a quick disposal. Inform the parties concerned.