Judgment:
Indu Prabha Singh, J.
1. This application in revision filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code') is directed against the order dated 8.12.1998 passed in Case No. 59M/85 by Shri R.P.S. Singh, J.M. 1st Class, Lakhisarai as also for quashing the entire proceeding of Case No. 59M/85.
Criminal Misc. No. 6579 of 1992 :
So far as Criminal Misc. No. 6579/92 filed under Section 482 of the Code is concerned, it is directed against the order dated 23.3.1992 passed in Cr. Rev. No. 144 of 1991 by Sri Ram Prabodh Singh, II Additional Sessions Judge, Munger by which he confirmed the order and judgment dated 3.4.1991 passed by Shri Ravindra Patwari, J.M. 1st Class, Munger under Section 125 of the Code. Both these cases were heard analogous and this judgment will govern both of them.
2. The petitioner in Criminal Revision No. 28 of 1999 is husband and opposite party No. 2 has claimed to be his first wife. It appears that opposite party No. 2 had filed Complaint Case No. 159 (C) of 1982 against the petitioner for his prosecution under Section 494 of the Indian Penal Code claiming therein that she was the first wife of the petitioner. She has filed another Case No. 58M/85 against the petitioner under Section 125 of the Code for her maintenance claiming therein also that she is wife of the petitioner. So far as Complaint Case No. 159(C)/82 is concerned, the petitioner was acquitted by Shri P.K. Dubey, Magistrate 1st Class by judgment dated 8.5.1985 holding that opposite party No. 2 had failed to prove her marriage with the petitioner. Against this judgment of acquittal opposite party No. 2 had filed Cr. Appeal No. 15/85 in this Court which was dismissed by A.N. Chaturvedi, J. on 2.7.1996 holding therein that the evidence on record did not prove beyond doubt that opposite party No. 2 is the first wife of the petitioner. Aggrieved by this order opposite party No. 2 filed S.L.P. (Cri.) No. 3174/96 before the Hon'ble Supreme Court before which the parties reached a settlement and the respondent (present petitioner), was directed to pay a sum of Rs. 15,000/- to the present opposite party No. 2 who was the petitioner before the Hon'ble Supreme Court. By order dated 5.12.1997 the Hon'ble Supreme Court dismissed this S.L.P. (Cri.) as withdrawn.
3. So far as Case No. 59M/85 is concerned, this was brought under Section 125 of the Code by opposite party No. 2 claiming herself to be the wife of the petitioner. Shri Ravindra Patwari, Judicial Magistrate, 1st Class by his order dated 3.4.1991 allowed this petition for maintenance of opposite party No. 2 and directed the petitioner to pay her a sum of Rs. 300/- per month by way of her maintenance. The petitioner filed Cr. Revision No. 144/91 before the Court of Session against this judgment of the learned Judicial Magistrate. It was heard and disposed of by Shri Ram Prabodh Singh, 2nd Addl. Sessions Judge, Munger who by his order dated 23.3.1992 dismissed the revision application and confirmed the order passed by the learned Magistrate. After dismissal of this revision application the petitioner filed Cr. Misc. No. 6579 of 1992 before this Court. It was, however, dismissed as not pressed by an order dated 23.2.1998. An application for its restoration (Cr. Misc. No. 13424 of 1998) was filed against this order of dismissal. This restoration petition was, however, dismissed for default on 13.11.1998 on account of peremptory order passed by this Court on 6.11.1998. Subsequently another restoration petition (Cr. Misc. No. 23124 of 2000) was filed for restoration of Cr. Misc. No. 13424/98 as also for the restoration of Cr. Misc. No. 6579 of 1992. By order dated 7.11.2000 Cr. Misc. No. 6579/1992 was restored to the file. From the record it appears that this criminal misc. case was heard along with present Criminal Revision No. 28/1999 by this Court on 3.1.2001 and this judgment will govern both of them.
4. From the aforesaid it would appear that the order for maintenance passed by the learned Judicial Magistrate in Case No. 59(M)/1985 was confirmed by the learned Addl. Sessions Judge in Criminal Revision No. 144/91. It is this order which has been now challenged before this Court in Cr. Misc. No. 6579/92 and is pending for disposal.
5. So far as Complaint Case No. 159(C)/1982 is concerned it appears that it was filed for the prosecution of the petitioner under Section 494 of the Indian Penal Code which ended in his acquittal by the judgment dated 8.5.1985 passed by the Magistrate 1st Class. Against this judgment of acquittal Cr. Appeal No. 15/85 was filed and heard by this Court which was dismissed by the order dated 2.7.1996 passed by A.N. Chaturvedi, J. Thus while on one hand there is order of maintenance in favour of opposite party No. 2 under Section 125 of Code on account of her claim of being lawful wife of the petitioner, her allegation of second marriage by petitioner filed under Section 494 of. the Indian Penal Code has failed.
6. It has been seriously argued before me on behalf of the petitioner that since his prosecution under Section 494 of the Indian Penal Code at the instance of opposite party No. 2 has failed and since this Court in Cr. Appeal No. 15/85 has held that the evidence on record did not prove the charge under Section 494 of the Indian Penal Code beyond all reasonable doubts against the present petitioner he cannot be asked to pay maintenance to opposite party No. 2 since as per the judgment of acquittal passed by Shri P.K. Dubey, Judicial Magistrate, 1st Class, Munger in Complaint Case No. 159(C)/82 confirmed by this Court in Cr. Appeal No. 15/85 opposite party No. 2 has failed to prove that she is the legally married wife of the petitioner and accordingly she is entitled to maintenance. In other words the thrust of the argument advanced on behalf of the petitioner is that since opposite party No. 2 has failed to bring home the charge under Section 494 of the Indian Penal Code against the petitioner she is no entitled to get any maintenance from him, inasmuch as her claim for maintenance would be barred by the principle of estoppel. This brings us to the consideration of question whether the claim for maintenance of the petitioner allowed by the two Courts can be said to be barred by estoppel on account of the judgment of acquittal passed by the Judicial Magistrate as also by this Court in a charge under Section 494 of the Indian Penal Code levelled against the petitioner. It has been seriously argued before him that by virtue of the principle of estoppel the opposite party No. 2 is not entitled to get any maintenance on the grounds mentioned above. In this connection my attention has been drawn to the impugned order dated 8.12.1998 passed by the Judicial Magistrate. From this order it appears that the learned Magistrate has taken into account the facts and circumstances of this case and had directed the opposite party No. 2 to submit before the Court her total claims for her maintenance as directed by the two Courts.
7. At the time of hearing learned Counsel for the petitioner has placed reliance on Section 300 of the Code which corresponds to Section 403 of the old Code. This sections runs as follows :
'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, nor 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.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (2) of Section 220.
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(6) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897 (10 of 1897), or of Section 188 of this Code.
Explanation-The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.'
8. From a perusal of Section 300 of the present Code which corresponds to Section 403 Old Code, it would appear that its provision could be attracted only in a case when a person has been convicted or acquitted of the charge for having committed an offence in which case he shall not be tried against for the same offence. Section 26 of the General Clauses Act as referred to above runs as follows :
'26. Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.'
So far as Section 186 of the Code is concerned, it does not apply to the facts of the present case as it provides for the procedure for the trial of the offence committed outside India.
9. In this connection a reference also be made to Article 20(2) of the Constitution of India which also makes a provision for a bar against the second prosecution in analogous cases.
'Article 20(2)-No person shall be prosecuted and punished for the same offence more than once.'
10. A bare reading of Section 300 of the Code shows that is relates to the offences and reference to the conviction or acquittal of same offence. The word offence has not been defined in the Code, however, it has been defined in Section 40 of the Indian Penal Code which runs as follows :
'40. 'Offence'-Except in the Chapters and sections mentioned in Clauses 2 and 3 of this section, the word offence' denotes a thing made punishable by this code
In Chapter IV, Chapter V-A and in the following sections, namely Sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445 the word 'offence' denotes a thing punishable under this Code or under any special or local law as hereinafter defined.
And in Sections 141, 176, 177, 201, 202, 212, 216 and 441 the word 'offence' has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.'
From the above definition of the word 'offence' it becomes clear that it denotes a thing made punishable by IPC. The sections referred to in its Clauses 2 and 3 are the sections of the Indian Penal Code and not of the Code of Criminal Procedure. Section 125 as mentioned in Second Clause refers to Section 125 of the Indian Penal Code and not to Section 125 of the Code of Criminal Procedure, and the offence mentioned in Section 125 is waging war against any Asiatic Power in alliance with the Government.
11. As per Section 2(n) of the Code of the words and expressions used in the Code but not defined in it but defined in the Indian Penal Code have the meaning respectively assigned to them in that Code. From the aforesaid it would appear that an offence as mentioned in Section 300 of the Code denotes a thing made punishable by the Indian Penal Code. It is on this account that Section 300 of the Code provides that the person once convicted or acquitted is not to be tried again for the same offence.
12. In view of the aforesaid meaning of the word 'offence' as used in Section 300 of the Code I will now proceed to examine whether the provisions of this section will be applicable on the facts of the present case. It may be stated here that while Section 494 of the Indian Penal Code is punishable with imprisonment for a term which may extend to 7 years and shall also be liable to fine, there is no punishment prescribed in Section 125 of the Code. As a matter of fact Section 125 of the Code provides for order for maintenance to the wife, children and parents. It empowers the Magistrate to order any person to make monthly allowances for the maintenance of his wife or child or father or mother at such monthly rate not exceeding Rs. 500/- in the whole. This is not a penal section and the word 'offences' as noticed above cannot be applied to a person who has been ordered to pay maintenance to the persons noted above. It is only in Sub-section (3) of Section 125 of the Code that a provision is made for issuing a warrant for levying the amount due in the manner provided for levying fines and only if the allowances remain unpaid then such person may be sentenced to imprisonment for a term which may extend to one month or until payment of allowance is made. This provision cannot be said to be a penal provision as no punishment as such is prescribed to the person ordered to pay maintenance. In this view of the matter any failure on the part of the person to pay maintenance as per Section 125 of the Code will not come within the definition 'offence' since it cannot be said to be made punishable under Indian Penal Code. From the aforesaid discussion it becomes clear that the provisions of Section 300 of the Code would not be attracted under the facts and circumstances of this case inasmuch as it simply provides that once a person has been convicted or acquitted by a Court of competent jurisdiction he cannot be tried for the same offence twice. Here in the case of an order under Section 125 of the Code the question of any conviction or acquittal for an offence as defined in Section 40 of the Indian Penal Code will not arise. Hence properly speaking the provisions of Section 300 of the present Code corresponding to Section 403 of the Old Code would not be attracted under the facts and circumstances of this case. In view of above I will now proceed to refer to the decisions cited by the learned Counsel for the petitioner.
13. I will firstly refer to the case of Manipur Administration, Manipur v. Thocchom Bira Singh, AIR 1965 SC 87. In this decision the rule as to issue estoppel have been explained. It has been held in this decision that the rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res-judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact, when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2) of the Old Code. This rule only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. In the present case as noticed above the provisions of Section 403 of the Old Code corresponding to Section 300 of the Code are not attracted and will not apply inasmuch as a case under Section 125 of the Code is not a trial of any person in which any punishment is prescribed. Hence this decision is hardly of any help to the petitioner.
14. In this connection a reference may also be made to the case of Kharkan and Ors. v. State of Uttar Pradesh, AIR 1985 SC 83 This case also relates to Section 403 of the Old Code. According to this decision the plea of autrefois acquit will arise when a person is tried again for the same offence or on the same facts for any other offence under the conditions attracting Section 236 or 237 of the Old Code. It has further held that the reasoning of the judgment of acquittal will not be admissible as evidence in the subsequent case. In paragraph 11 of this judgment it has been held as follows :
'It was contended by Mr. Tewatia that the earlier judgment involved almost the same evidence and the reasoning of the learned Judge in Puran's case destroys the prosecution case in the present appeal. He attempted to use the earlier judgment to establish this point. In our opinion he cannot be allowed to rely upon the reasoning in the earlier judgment proceeding as it did upon evidence which was separately recorded and separately considered... The earlier judgment is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence.'
The decision clearly shows that the earlier judgment was admissible to show that the parties under the decision but it was not admissible for the parties to rely upon the appreciation of evidence.
15. The other decision relied upon on behalf of the petitioner is the case of Lata and Ors. v. State of U.P., AIR 1970 SC 1381. This case also relates to Section 403 of the Old Code. It has simply held that where an issue of fact has been tried by a competent Court on a former occasion and a finding of fact has been reached in favour of the accused such a finding would constitute an estoppel or res-judicata against the prosecution, not a bar to this trial and conviction of the accused for a different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2) of the Old Code. This decision is also of no help in the present case since as already pointed out above the proceeding under Section 125 of the Code is not a trial for any offence within the meaning of word 'offence' as appearing in Section 40 of the Indian Penal Code. Hence this decision is also not applicable to the facts of the present case.
16. Learned Counsel for the petitioner has also placed reliance in the case of Masud Khan v. State of Uttar Pradesh, AIR 1974 SC 28. In this decision also the question of principle of estoppel has been considered as provided by Section 115 of the Evidence Act. It has been held that the principle of issue estoppel is simply this and where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res-judicata against the prosecution not as a bar to the trial and conviction of the accused for a different and distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. This case related to Foreigners (Internment) Order, 1962. The applicant in the said case could not discharge the burden showing that he is not a foreigner and it was held that he was liable to be dealt with under paragraph 5 of the said order. It was, however, held by the Hon'ble Supreme Court that action prescribed in paragraph 5 of this order was not criminal in nature and even if the petitioner was acquitted for the prosecution under Section 14 of the Foreigners Act subsequent action against him in connection with the Foreigners Order was not barred by issue estoppel. This decision is, therefore, of no help to the learned Counsel for the petitioner.
17. From the discussion of these decisions it would appear that what is barred under Section 403 of the Old Code or Section 300 of the new Code is the subsequent trial of any person for the same offence if earlier he has been tried and acquitted or convicted for the same offence. The ratio of these decisions will not apply to the facts of the present case inasmuch as the preceding under Section 125 of the Code is not with respect to any offence for which a person can be convicted under the provisions of the Indian Penal Code or any other law.
18. In this connection a reference may be made to the case of Anil Behari Ghosh v. Smt. Latika Bala Dassi and Ors., AIR 1955 SC 566. In the said case one Charu Chandra Ghosh was convicted of murder by the Sessions Court. It was held by the Hon'ble Supreme Court that though the judgment is relevant only to show that there was a trial resulting in the conviction and sentence of Charu to the transportation for life. It was not the evidence of the fact that Charu was the murderer.
19. The question involved in the present case had come up for consideration before me in the case of Samir Mandal v. The State of Bihar and Ors., 2000 (1) PLJR 1034. Here also similar question was under consideration, namely, that if a person is acquitted of the charge under Section 494 of the Indian Penal Code can he be asked to pay maintenance to his wife under the provisions of Section 125 of the Code. I was held that in such a situation the wife was entitled for maintenance notwithstanding the fact that her case brought against the petitioner for an offence under Section 494 of the Code ended in acquittal.
20. From the detailed discussion made above it becomes clear that there is no merit in Cr. Revision No. 28/99 which is, accordingly dismissed and the impugned order dated 8.12.1998 passed in Case No. 59-M/85 by Shri R.P. Singh, Judicial Magistrate, 1st Class is confirmed. So far as Cr. Misc. No. 6579/92 is concerned, it is clear that the learned Judicial Magistrate had passed an order of maintenance against the present petitioner which has been confirmed on appeal and against which this misc. case has been filed. In this misc. case the plea of estoppel was raised before this Court but finally it was demised as not pressed on 23.2.1998. Though subsequently it has been restored and though both the parties have been heard on its merit. It is clear that the findings arrived at by two Courts below with respect to payment of maintenance to opposite party No. 2 by the present petitioner are correct both on facts and law and, therefore, they cannot be disturbed. Cr. Misc. No. 6579/92 is, therefore, also dismissed.