Thursday, 7 April 2016

Whether Magistrate can pass order of acquittal of accused in session triable cases?

  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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT:

                  THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

         MONDAY, THE 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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