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Calcutta High Court
Kailashpati Upadhya And Anr. vs Gopi Koeri on 8 March, 1929
Equivalent citations: AIR 1930 Cal 60


1. This rule was issued to show cause why the order of the learned District Magistrate of Howrah rejecting the application made by the petitioners for the quashing of an order issuing processes against them under Section 323 should not be set aside. The main ground urged is that the petitioners had already previously been tried for an offence under the Railways Act and had been convicted and fined, and that being so, they ought not to be again placed in peril in respect of another offence arising out of the same facts for which they might have been tried and convicted at the former trial. The trying Magistrate relying upon Section 403(2), Criminal P.C. held that the trial was competent and the learned District Magistrate has endorsed that view. The point involved is not altogether free from doubt; but we do not think that we are called upon to decide it in this case inasmuch as it seems to be clear that while there was no charge of assault in the previous case, and which the accused were not on that occasion asked to plead in respect of that offence, the Court nevertheless took into accounted the fact that the accused had committed an assault upon the complainant, and in consideration thereof inflicted heavier fines upon them than upon the other two accused who had not committed any assault. That being so, we do not think that it would be just or proper that the petitioners having already been punished although indirectly on this account, should be again tried in respect of the same matter since that would involve punishment twice over for the same offence. In this view of the case we make the rule absolute and set aside the order complained of.

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