IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.23252 of 2010
1. Sanjay Kumar Verma alias Sanjay Verma, son of Sukhdeo Prasad.
2. Sukhdeo Prasad alias Sukhdeo Prasad Verma, son of Babulal Verma.
Both permanent resident of Mohalla-Jheelganj, P.S.-Kotwali, District-
Gaya. At present residing at 29, Shashtri Nagar, P.S.-Kotwali, District-
Sheopuri (Madhya Pradesh). .....Petitioners.
Versus
1. The State of Bihar.
2. Ravindra Prasad, son of Late Prayag Ram, resident of mohalla-Mahani
Gali, Nai Sarai, P.S.-Bihar, District-Nalanda.
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For the petitioners : Mr. Suraj Narayan Prasad Sinha, Sr. Advocate.
Mr. Sanjay Kumar, Ghosarvey, Advocate.
Mr. Dr. Anand Kumar, Advocate.
Mr. Manoj Kumar Pandey, Advocate.
For Opp.Party No.2 : Mr. Chandra Mohan Jha, Advocate.
For the State : Mr. Dr. Mayanand Jha, A.P.P.
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2 17.08.2011 Heard learned counsels of both sides.
Petitioners being aggrieved by and dissatisfied with an order
dated 19.12.2009 passed by Chief Judicial Magistrate, Nalanda at Bihar
Shariff in Complaint Case No.747(c) of 2008 summoning the petitioner to
face trial for an offence punishable under Section 498A, 304B and 34 of the
I.P.C. have invoked extraordinary power to this Court so provided under
Section 482 of the Cr.P.C.
Shorn of unnecessary details, one Rupa who was married with
one of the petitioner, namely, Sanjay Kumar Verma alias Sanjay Verma met
with an unnatural death within seven years of her marriage at Gurudwara
Road, Sheopuri, District-Sheopuri (M.P.) for which on the statement of
Sanjay Kumar Verma alias Sanjay Verma U.D. Case No.58/2006 was
registered which was subsequently converted into a substantial case after
having appearance of O.P. No.2 bearing Sheopuri P.S. Case no.38/2008
under Section 304B, 498A, 34 of the I.P.C. where under cognizance was also
taken after submission of charge-sheet and accordingly, petitioners were put
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on trial and were acquitted vide judgment dated 4/8/2008 from the court of
3rd Additional Sessions Judge, Sheopuri delivered in connection with S. Tr.
No.147/2008. While the aforesaid matter was pending, O.P. No.2 filed
Complaint Petition No. 1257/2006 before Chief Judicial Magistrate, Nalanda
at Bihar Shariff which was sent to the local police for registration and
investigation as provided under Section 156(3) of the Cr.P.C. which led
initiation of Bihar P.S. Case No.350/2006 under Section 498A, 304B, 34 of
the I.P.C., wherein after concluding investigation final report was submitted.
However, as protest petition was already pending consequent thereupon after
having the final report accepted by the learned Chief Judicial Magistrate, the
matter proceeded treating the protest petition as complaint petition, wherein
after concluding inquiry as provided under Section 202 of the Cr.P.C., by the
order impugned petitioners have been summoned to face trial for an offence
punishable under Section 498A, 304B, 34 of the I.P.C. which has caused
grievance to the petitioner to file instant petition. It is worth mention to note
that O.P. No.2 failed to place information before either of the court regarding
Pendency of case.
It has been submitted on behalf of the petitioner that the order
of cognizance and summoning of petitioner is bad in law and so the order
impugned cannot be found to be tenable in the eye of law. To buttress his
submission, learned counsel for the petitioner drew attention towards section
300 of the Cr.P.C. and submitted that once petitioners have already tried for
the same allegation and acquitted, then under such situation he cannot be
prosecuted and tried in subsequent proceeding for the same cause which is
also found to be contrary to sub-clause 2 of Article 20 of the Constitution. To
support his plea also relied upon decision reported in 2011(1) PLJR. SC 159
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(Kolla Veera Raghav Rao Versus Gorantla Venkateshwara Rao & Anr.).
At the other hand the learned Additional Public Prosecutor
though opposed, but fairly concedes so far legal position is concerned and
submitted that after having chronological reading of Article 20 sub-clause 2
of the Constitution as well as Section 300 of the Cr.P.C., subsequent trial is
prohibited.
So far O.P. No.2 is concerned, it has been submitted that before
conversion of U.D. Case to regular case bearing Sheopuri P.S. Case No.38 of
2008, O.P.- informant had already taken legal recourse by filing complaint
petition which was sent to the P.S. concerned for registration and
investigation of the case and then and then only, the accused coming to know
about the aforesaid development and further having the police official
acknowledged with the aforesaid development, transformed the U.D. Case as
regular case and then thereafter the matter proceeded at Sheopuri where trial
commenced and concluded. Therefore, the submission is that the present case
happens to be earlier instituted case and so this case should have been
allowed to proceed instead of Sheopuri P.S. Case No.38 of 2008 which was
the subsequent event. So submitted that for the present petitioners are not at
all entitled for the privilege for which they have approach the court. The
better recourse, as submitted, to appear before the court below and to face
trial.
It goes without saying that for the death of Rupa Devi though
earlier U.D. Case was registered , but subsequently was converted into
substantial case bearing Sheopuri P.S. Case No.38 of 2008 under Section
304B, 498A, 34 of the I.P.C. for which the present case happens to be. There
is also no controversy amongst the parties with regard to appearance of O.P.
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No.2 and his family members during course of investigation of Sheopuri P.S.
Case No.38 of 2008, their statement recorded under Section 161 of the
Cr.P.C., commencement of trial and having their presence as prosecution
witnesses which lastly culminated under acquittal of the petitioners.
However, it is surprising that none of the prosecution witness disclosed
regarding pendency of instant case. Therefore, suddenly in the instant case
though it origin happens to be before conversion of U.D. Case as substantial
case, but as none of the party raised any objection nay challenged, therefore,
the prosecution of petitioner with regard to Sheopuri P.S. Case No.38 of
2008 certainly prohibits their repeated prosecution under the instant trial
which happens to be for the same cause and further the same appears to be
prohibited under Section 300 of the Cr.P.C. At this juncture, I would like to
refer the principle laid down by the Hon’ble Apex Court reported in 2011(1)
P.L.J.R. SC 159, para-7.
7. Thus, it can be seen that Section 300(1)
of Cr.P.C. is wider than Article 20(2) of the
Constitution. While, Article 20(2) of the
Constitution only states that ‘no one can be
prosecuted and punished for the same offence
more than once’, Section 300(1) of Cr.P.C.
states that no one can be tried and convicted
for the same offence or even for a different
offence but on the same facts.
For the reason stated above, the instant petition is allowed
consequent thereupon the order of cognizance dated 19.12.2009 taken with
regard to Complaint Case No.747 of 2008 by the learned Chief Judicial
Magistrate, Nalanda at Bihar Shariff is quashed.
PN (Aditya Kumar Trivedi, J.)