Kariyappa and ors. Vs. Somanna

Kariyappa and ors. vs Somanna

Type Court Judgment Court Karnataka Decided Aug 16, 1955

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Citation: sooperkanoon.com/373360
Court: Karnataka High Court
Judge: Venkataramaiya, C.J. and ;Sreenivasa Rau, J.
Decided On: Aug 16, 1955
Case Number: Criminal Revn. Petn. No. 398 of 1954
Subject: Criminal;Constitution

Case Summary

AI-generated summary - not the official court judgment text.

- Section 26: [Ram Mohan Reddy,J] Custody of child Rejection of application made under Order 7, Rule 11 (A) C.P.C., - Order passed by Family Court - Decree of divorce by mutual consent and Childs custody in terms of the compromise - Difficulties in implementation of visiting rights and custody of the child -Sep...

Key legal issue: Criminal;Constitution
Acts & sections: Constitution of India - Article 20; Indian Penal Code (IPC), 1860 - Sections 160, 323, 352, 406 and 420; Code of Criminal Procedure (CrPC) , 1898 - Sections 35, 235(1), 236, 237, 403 and 403(3);...

Parties & Advocates

Appellant / Petitioner

Kariyappa and ors.

Advocate Gulur Srinivasa Rao, Adv.

Respondent

Somanna

Advocate B.S. Puttasiddiah, Adv.

Legal References

Acts: Constitution of India - Article 20; Indian Penal Code (IPC), 1860 - Sections 160, 323, 352, 406 and 420; Code of Criminal Procedure (CrPC) , 1898 - Sections 35, 235(1), 236, 237, 403 and 403(3); City Police Act - Sections 75; Excise Act
Reported In: AIR1955Kant138; AIR1955Mys138; 1955CriLJ1611

Excerpt

- section 26: [ram mohan reddy,j] custody of child rejection of application made under order 7, rule 11 (a) c.p.c., - order passed by family court - decree of divorce by mutual consent and childs custody in terms of the compromise - difficulties in implementation of visiting rights and custody of the child -separate application by the parties under section 26 of the hindu marriage act, 1955 for custody of the child - petitioners application for custody of the female child subject to visitation rights to the respondent-ex-husband was allowed and confirmed by the apex court with certain modifications in the year 2004.- application filed by the respondent under section 26 of the act for permanent and exclusive custody of the minor child, in the year 2006. petitioners objections - at the stage of evidence of respondent, petitioners application under order vii rule 11(a) c.p.c. to reject the application filed by the respondent under section 26 held, there can be no dispute that all orders relating to the custody of minor children from their very nature must be considered to be temporary orders made in the existing circumstance and that with changed conditions and circumstances, including passage of time, the court is entitled to vary such orders, if such variation is considered to be in the paramount interest of the welfare of the minor. indisputably, the object of order 7, rule 11 is to keep out of courts irresponsible law suits, a tool in the hands of the courts. the question to be decided while dealing with an application filed under order 7, rule 11(a) cpc, is whether a real cause of action is set out in the plaint or something purely illusory has been stated. if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the court should exercise the power under order 7, rule 11(a). if clever drafting has created the illusion of a cause of action, it must be nipped in the..........section 160, i. p. c., convicted of the said offence and sentenced to pay a fine' of rs. 20/- each. the respondent now wants the petitioners to be dealt with according to law for causing him hurt. objection was taken to this on the ground that the facts relating to both cases are common and the offences alleged though different are those committed in the course of the same transaction. the contention in the lower court and repeated here by sri gular sreenivasa rao on behalf of the accused is that provisions of section 403, criminal p. c. and article 20 of the constitution of india operate as a bar to the case being proceeded with. article 20 states that no person shall be prosecuted and convicted for the same offence more than once; and according to section 403, criminal p. c:'a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall... ....not he 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 section 236, or for which he might have been convicted under section 237.'the objection was overruled by the learned magistrate before whom the case is pending and the petitioners seek revision of this order.2. the petition which was posted for hearing before a single judge at first has been - referred to a division bench as the point raised is said to be of importance. the offence for the commission of which the petitioners were convicted being different from that now complained of, article 20 or the constitution cannot prima facie be availed of. as regards section 403, cr. p. c., since it is admitted that the trial in the' former case was confined to the offence of affray, the question which needs consideration is whether the petitioners' should have been tried then also for the offences alleged by the respondent.it is unnecessary to examine the bearing ofthis factor on.....

Full Judgment

ORDER

1. The question raised in this case is whether the trial of Petitioners for offences alleged by the Respondent in C. C, No, 158/1954 on the file of the Munsif-Magistrate, Bhadravati, is barred by virtue of the proceedings in C. C. No-951/53 in the same Court. In the latter case the Petitioners as well as the Respondent were accused of committing affray, an offence under Section 160, I. P. C., convicted of the said offence and sentenced to pay a fine' of Rs. 20/- each. The Respondent now wants the Petitioners to be dealt with according to law for causing him hurt. Objection was taken to this on the ground that the facts relating to both cases are common and the offences alleged though different are those committed in the course of the same transaction. The contention in the lower Court and repeated here by Sri Gular Sreenivasa Rao on behalf of the accused is that provisions of Section 403, Criminal P. C. and Article 20 of the Constitution of India operate as a bar to the case being proceeded with. Article 20 states that no person shall be prosecuted and convicted for the same offence more than once; and according to Section 403, Criminal P. C:

'A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall... ....not he 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 Section 236, or for which he might have been convicted under Section 237.'

The objection was overruled by the learned Magistrate before whom the case is pending and the Petitioners seek revision of this Order.

2. The petition which was posted for hearing before a single Judge at first has been - referred to a Division Bench as the point raised is said to be of importance. The offence for the commission of which the Petitioners were convicted being different from that now complained of, Article 20 or the Constitution cannot prima facie be availed of. As regards Section 403, Cr. P. C., since it is admitted that the trial in the' former case was confined to the offence of affray, the question which needs consideration is whether the Petitioners' should have been tried then also for the offences alleged by the Respondent.

It is unnecessary to examine the bearing ofthis factor on the maintainability of the presentcomplaint in view of the decisions of this Court.So far back as 1902 a Division Bench of this Courtin 7 Mys CCR 131 (A) laid down that a previous conviction for affray was no bar to a subsequent trial for causing hurt during affray. Following this decision Doreswamy lyer J. in 31 Mys CCR 335 (B) observed that offences of affray andhurt are distinct- offences and not merely separableoffences as that term is explained in Section 35, Criminal P. C. The view taken in these two cases issupported by the decision in 'Thanammal v. Ala-melu Ammal', AIR 1940 Mad 224 (C) where it washeld that a conviction under Section 75 City Police Actwas no bar to the trial for offences under Sections. 323 ;and 352, Penal Code.

3. 35 Mys CCR 10 (D) cited by Mr. Gulur Srinivasa Rao is distinguishable as it is based on the consideration that the facts relating to the offence under the Excise Act of which the accused was acquitted were the same as those relating to offences under the Indian Penal Code. It cannot be said that the requirements for the offence of affray are the same as those for hurt as likelihood of disturbing the public peace is essential for one and harm or injury to an individual for the other.

The decision of the Full Bench of the Madras High Court in -- 'Emperor v. John MoIner : AIR1936 Mad353 cannot afford help to the Petitioners as it turned upon the facts constituting offences under Sections. 420. (cheating) and 406 (misappropriation) being the same. For the same reason - 'Chaito Kalwar v. Emperor', Al R 1928 Cal 240 (F) and -- 'Kailashpati Upadhya v. Gopi Koeri', 6AIR 1930. Cal 0 (l) (G) do not help the Petitioners.

4. It may be mentioned that Sub-section (2) of Section 403 states:

'A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (l)'.

Section 235, Sub-section (1) reads thus:

'If, in one series of facts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such' offence.'

The test for determining the legality of the trial of a person more than once is whether the offences for which he is tried are distinct from those for which he was previously tried. As observed by Mukherji J. in -- 'Emperor v. Ramsukh : AIR1925 All299 :

'It is true there might be a joint trial but that is because it is convenient under the circumstances to have a joint trial. But for the application of the rule of bar we have to see whether the case does not fall within Clause (2) of Section 403.'

The learned Judge held that the conviction for affray is no bar to the trial for the offence of hurt.

5. As already pointed out the facts necessary to make out an offence of hurt are altogether different from those for affray. There is no impediment to the case filed by the Respondent being proceeded with. This petition is therefore dismissed.

6. Petition dismissed.

Same Parties Kariyappa and ors. vs Somanna Same Subject Criminal;Constitution Same Judge Venkataramaiya, C.J. and ;Sreenivasa Rau, J. Acts & Sections Constitution of India - Article 20; Indian Penal Code (IPC), ...

Criminal;Constitution