Full Judgment
M.Cr.C.No.1435/2011 5.2.2013 Shri Sanjay Patel, Adv.for the petitioneRs.Ms.Pratibha Mishra, PL for the State.
Shri Anurag Shivhare, Advocate for respondent No.2.
The petitioners have filed this petition invoking the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C.for quashment of proceedings of Criminal Case No.90/2011 pending against them before Chief Judicial Magistrate, Damoh.
The charge sheet has been filed against the petitioners on the report of respondent No.2 Smt.
Jayanti Upadhyay in the crime registered as Crime No.526/2010 for the offence punishable under Section 498-A, 294, 506,34 of the IPC alleging the ill treatment with her by the petitioneRs.Learned counsel for the petitioner has submitted that earlier similar FIR was lodged by the petitioner for the offence registered vide Crime No.370/2007 punishable under Section 498-A, 294, 506/34 of the IPC and 3/4 of the Dowry Prohibition Act.
Learned counsel for the petitioner has further submitted that the petitioner has given the statement in Criminal Case No.4087/2007 on 16.9.2010 in which he has stated that her husband and his family members are keeping her in good condition and she has lodged this report (P-1) in anger.
In cross examination she admitted that she came to the Court from her in laws house and she never told about demand of dowry or harassment for dowry and ill treatment by the accused to her mother and father.
Even she denied that she has lodged report for ill treatment and harassment in relation to demand of dowry.
Learned counsel has further submitted that during the pendency of one case under Section 498-A of the IPC, second FIR and trial on the basis of such FIR is not sustainable.
He has placed reliance on the judgment of Hon'ble the Apex Court in Kolla Veera Raghav Rao versus Gorantla Venkateswara Rao & another delivered on 1.2.2011 in Criminal Appeal No.1160/2006, in which it has been laid down thus : It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of the Cr.P.C.Article 20(2) states: “no person shall be prosecuted and punished for the same offence more than once.”
On the other hand, Section 300(1) of the Cr.P.C.states: “300.
Person once convicted or acquitted not to be tried for same offence (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, not on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221 or for which he might have been convicted under sub-section (2) thereof.
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.
In the present case, although the offences are different but the facts are the same.
Hence Section 300(1) of the Cr.P.C.applies.
Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C.The Appeal is allowed and the impugned judgment of the High Court is set aside.
Considering the interpretation of Section 300(1) of the Cr.P.C.by Hon'ble the Apex Court in the aforesaid judgment, no one can be tried or convicted for the same offence more than once.
The trial of the petitioners for the offence punishable under Section 498-A of the IPC for harassment for fulfilling the demand of dowry by second FIR covering the period which was already in consideration in earlier case is not maintainable.
Learned counsel appearing for respondent No.2 has submitted that the second report has been lodged after complainant has been ill treated when she went to live with the petitioners second time after compromise.
This fact has been considered by the Apex Court in Kolla Veera Raghav Rao versus Gorantla Venkateswara Rao & another (supra).therefore, the second FIR lodged by the complainant against the petitioners for the similar kind of offence is not maintainable.
Thus, the trial on the basis of impugned charge sheet filed against the petitioners is not sustainable.
Resultantly, the petition is allowed.
The impugned charge sheet filed against the petitioners in Crime No.526/2010 on the basis of which Criminal Case No.90/2011 is pending against the petitioners before Chief Judicial Magistrate, Damoh is hereby quashed.
Copy of this order be sent to the trial Court for information and necessary action.
(A.K.Sharma) Judge PB