petitioners against Annexure-B order relying on the principle that no
person can be punished or prosecuted for the same offence more than
once. However, a bare perusal of section 300, Cr.P.C would reveal
that it incorporates principle of autrefois acquit viz., no one shall be
punished or put on twice for the same matter. The plea based on this
principle or the doctrine of double jeopardy is recognized by section
300 Cr.P.C only where an issue of a fact has been tried by a competent
court on a former occasion and a finding has been returned in favour
of the accused as in such eventuality, the finding would constitute an
estoppel or res judicata against the parties to that proceedings. In this
case, the learned Sessions Judge interfered with the judgment in the
calender case passed by the learned Magistrate by which the learned
Magistrate, ignoring the fact that offence under section 333, IPC is
triable exclusively by a Court of Session, tried the revision petitioners
and acquitted them. In such circumstances, the provisions under
section 300, Cr.P.C would not be available to challenge the order
passed by the learned Sessions Judge.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
12TH DAY OF JANUARY 2015.
Crl.Rev.Pet.No. 18 of 2015 ()
BADARUDEEN, S/O UMANKANNU RAWTHER,
Vs
STATE OF KERALA,
This revision petition is directed against the order dated
30.11.2009 in Crl.R.P.No.31 of 2009 passed by the Court of Session,
Kollam. The petitioners herein were the accused in C.C.No.397 of
2004 on the files of the Court of Judicial First Class Magistrate,
Sasthamkotta. They were tried therein for offences punishable under
sections 143, 147, 148, 341, 332, 333 read with 149 IPC and section 3
(2)(a) of the P.D.P.P Act and ultimately they were acquitted as per
Annexure-A judgment dated 26.6.2009. However, it was later found
by the learned Magistrate that he has committed an incurable error by
trying the accused in C.C.No.397 of 2004 as the offence under section
333 IPC was exclusively triable by a Court of Session. Thereupon,
that fact was duly reported to the Chief Judicial Magistrate and on
getting a report in that regard from the Chief Judicial Magistrate, the
learned Sessions Judge, Kollam registered a suo motu revision
petition and the entire records in connection with C.C.No.397 2004
were called for. After hearing the petitioners and the learned Public
Prosecutor, Annexure-B order was passed by the learned Sessions
Judge.
2. I have heard the learned counsel for the revision
petitioners and the learned Public Prosecutor.
3. A scanning of Annexure-B order would reveal that at the
time of argument, the position that offence under section 333 IPC is
triable only by a Court of Sessions is rightly conceded by both sides
before the learned Sessions Judge. When once the said fact is admitted
and, in fact, indisputable in view of the classification of offences in
the First Schedule to the Code of Criminal Procedure under the
heading "I-OFFENCES UNDER THE INDIAN PENAL CODE
1860), there cannot be any doubt with respect to the position that
Annexure-A judgment passed by the learned Magistrate would
become totally invalid in view of the fact that a Court of Magistrate of
the First Class is not a court of competent jurisdiction to frame the
charge and try an accused under section 333 IPC and it is an incurable
irregularity. In the said circumstances, the findings of the learned
Sessions Judge that the registration of C.C.No.708 of 2009 after
taking cognizance on the final report was improper as the learned
Magistrate has no jurisdiction to try the offence and consequently,
setting aside the very registration of C.C.No.708 of 2009 cannot be
said to be illegal and warranting interference. The learned Magistrate
was directed to take steps for committing the case in accordance with
law and the case was remitted to the Court of Judicial First Class
Magistrate, Sasthamcotta as per Annexure-B order. That apart, since a
Magistrate not being empowered by law to take cognizance of and to
try an offender for the offence under section 333 IPC the action on the
part of the learned Magistrate in taking cognizance of the offence
under section 333 IPC and in trying the petitioners for the said offence
would vitiate the proceedings in view of section 461, Cr.P.C.
4. Now, I will consider the challenge of the revision
petitioners against Annexure-B order relying on the principle that no
person can be punished or prosecuted for the same offence more than
once. However, a bare perusal of section 300, Cr.P.C would reveal
that it incorporates principle of autrefois acquit viz., no one shall be
punished or put on twice for the same matter. The plea based on this
principle or the doctrine of double jeopardy is recognized by section
300 Cr.P.C only where an issue of a fact has been tried by a competent
court on a former occasion and a finding has been returned in favour
of the accused as in such eventuality, the finding would constitute an
estoppel or res judicata against the parties to that proceedings. In this
case, the learned Sessions Judge interfered with the judgment in the
calender case passed by the learned Magistrate by which the learned
Magistrate, ignoring the fact that offence under section 333, IPC is
triable exclusively by a Court of Session, tried the revision petitioners
and acquitted them. In such circumstances, the provisions under
section 300, Cr.P.C would not be available to challenge the order
passed by the learned Sessions Judge. The learned counsel also made
a feeble attempt to mount challenge against the said order in the light
of Article 20 (2) of the Constitution of India. The right secured under
clause (2) is grounded on the common law maxim "nomo debit bis
vexari"- means, a man shall not be brought to danger for one or the
same offence more than once. Aclose scrutiny of Article 20(2) of the
Constitution of India would undoubtedly reveal that the bar
thereunder operates in respect of a second prosecution and
consequential punishment for the same offence. In other words, what
it bars is the prosecution and punishment after an earlier punishment
for the same offence. 'Offence' for the purpose of Article 20(2) means
an offence as defined in section 3(38) of the General Clauses Act
applied to the Constitution by virtue of Article 367 of the Constitution
of India. True that this must be treated to have supplemented by
section 26 of the General Clauses Act and certainly, by section 300,
Cr.P.C where the second prosecution is excluded by the doctrine of
autrefois convict or autrefois acquit. I have no hesitation to hold that
the said Article also cannot be a ground for the non-prosecution of the
revision petitioners, in view of the position of law and provisions of
law. In this case, evidently, in view of the facts obtained, the revision
petitioners cannot be heard to contend that they were tried by a court
of competent jurisdiction. When a person is booked for an offence he
is liable to face the trial. He cannot be heard to say that the
irregularity committed in the matter of conducting a trial by a
competent court shall be a ground for his non-prosecution or in other
words, that trial by a competent court is impermissible even in such
circumstances. In view of the reasons mentioned as aforesaid, I do
not find any irregularity or infirmity in the order passed by the learned
Sessions Judge setting aside the judgment passed by the learned
Magistrate trying the petitioners for offence under section 333 IPC
and in issuing further directions as referred hereinbefore. When a
case is registered against a person for offences including an offence
triable by a Court of Sessions, certainly the court having jurisdiction
to try that offence alone could try the offence and pass a verdict
thereon. In such circumstances, the direction of the learned Sessions
Judge setting aside the judgment of the learned Magistrate and
ordering for initiating steps for committing the case can only be said
to be in tune with the mandate of law and therefore, this revision
petition is liable to fail. Accordingly, it is dismissed. Taking into
account the fact that the crime is of the year 2004, the learned
Magistrate shall also expedite the committal proceedings and on such
committal, the Sessions Court shall expedite the proceedings.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
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