SINGHAL, J. - (1.) THIS revision under section 397 read with Sec. 401 Cr. P. C. has been filed against the order dated 30. 6. 94 passed by the Munsif and Judicial Magistrate Karauli.
(2.) THE brief facts of the case are that there was an incident in the court of Addl. Chief Judicial Magistrate Karauli on 5. 4. 91 where the petitioner has allegedly man-handled an advocate of the other side. THE proceedings for contempt of court were taken and besides that a criminal complaint u/ss. 324, 341, 323, 394, 504 and 427 IPC was also filed. THE proceedings for contempt of court ultimately resulted in discharge of the notices by order of this court dated 3. 11. 92 which were as under: - "an application under Section 15 (2) of the Contempt of Courts Act, 1971 was filed by Sushil Kumar Rawat against Shyam Singh for taking contempt proceedings against him. THE allegations made in the application are that the respondent Shyam Singh had misbehaved with the appellant in the court room by catching his neck mercilessly. THEre is no report of the Presiding Officer as to happening in the court room. THE applicant also did not file the application with the permission of the Advocate General. About the incident in the court it is its version that bears material. THE incident allegedly took place on 2. 4. 91 about two years have passed. It is not in the interest of justice that action be taken against the respondent Shyam Singh. Let the case be sent to the court below immediately for decision. " The petitioner thereafter moved an application u/s 300 Cr. P. C. in the Court of Munsif & Judl. Magistrate Karauli on the ground that in respect of same offence for which he has already been discharged/acquitted, the petitioner cannot be tried as resulting double jeopardy. The learned trial court vide its order dated 30. 6. 94 has held that various offences for which the trial is to be made, cannot be considered to be same offence for which the order was passed by the Rajasthan High Court on 3. 11. 92 and, therefore, the application was accordingly rejected. Learned counsel for the petitioner has submitted that in accordance with the provisions of Sec. 26 of the General Clauses Act if an offence is punishable under more than one enactment, the petitioner cannot be tried under two enactments. Reliance has been placed on Punjab High Court's case reported in The State vs. Kuldeep Singh Sohan Singh and Ors. (1), wherein it was observed that it is wholly immaterial upon what grounds the order of acquittal was passed. Even if the order of acquittal is made on a technical ground, as long as the order stands, it will prevent further prosecution of the accused person. Reliance has also been placed on the decision of Allahabad High Court in the case of Jagnarain Singh vs. State of U. P. (2), wherein it was held that the principles of resjudicata will have to be applied to the criminal cases in respect of subsequent trial and it was observed as under : - "a matter finally decided between the parties under the writ jurisdiction, is one which cannot be allowed to be re-opened and re-agitated in a subsequent proceeding even though the subsequent proceeding is a criminal case. The rule of finality of decision applicable to civil cases Could be applied to criminal cases also. If the criminal trial in question is based upon facts which had actually been decided in exercise of jurisdiction under Art. 226 of the Constitution* of India and as a result of the appeal preferred from that decision, that decision had become final between the parties, it would not be open to the parties to render that decision ineffective by claiming to have the right to re-agitate that question in a subsequent criminal trial. For the application of the general principles of res judicata, the nature of the proceedings are not very relevant. Whatever be the nature of the proceedings, the question which has been finally settled and set at rest between the parties in a previous proceeding before a competent court, could not be permitted to be re-opened and re-agitated in the subsequent proceedings. " The decision in the case of Kalu vs. State of Raj. (3), has also been relied wherein it was observed that where act of accused fell under two different enactments, and he was tried and convicted under one enactment, he cannot be tried under the other enactment irrespective of the fact whether the court under first enactment was not competent to try offence under the other enactment. The decision of this court in Gangaram vs. Ludinda Ram (4), has also been relied wherein it was held that the accused petitioner cannot be again tried for the same occurrence. In the case of T. V. Sharma vs. R. Meeriah, and Ors. (5), it has been observed as under: - "it is a well accepted principle of criminal law that a person cannot be prosecuted and punished for the same offence for more than once. This principle has been incorporated in Article 20 of the Constitution. The principle of issue estoppel applies to criminal cases also. The rule of issue estoppel is not the same as the plea of double jeopardy of autrefois acquit. If does not introduce any variation in the Cr. P. C. either in investigation, enquiry or trial. The rule of issue estoppel in criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and finding has been reached in favour of an accused, such a finding would constitute an estoppel or resjudicata against the prosecution. But this principle would equally apply to an issue estoppel has been invoked in criminal cases in order to cover cases where the plea of autrefois acquit will not be available because the crime with which the accused is charged in the later proceedings may not be the same crime of which he was acquitted earlier. Yet it may be that the verdict of acquittal in the earlier proceedings might have been based on a finding, the consequence of which is that he must be acquitted of the charge in the later proceedings also. That is not autrefois acquits as the accused is not able to show that the crime charged is substantially the same crime on which a finding was given in the first verdict. Such a situation is covered by the principle of issue estoppel or resjudicata. "
(3.) THE decision of Orissa High Court in the case of Rabindra Dhal and Ors. vs. Jairam Sethi (6), has also been relied on wherein it was observed as under : - "where the complaint was dismissed after issue of commons to the accused on account of the absence of the complainant the order would amount to one of the acquittal irrespective of whether the Magistrate uses the word 'discharge' or 'acquitted'. THErefore, the order of discharge of the accused passed under S. 245 by the Magistrate for the offence of the theft as the Complainant was absent on the date of the hearing, would amount to acquittal under S. 256. Thus the subsequent trial of the accused for the commission of the same offence, in which conviction was recorded against him, was illegal in view of s. 300. " The decision of Kamruddin Pathan vs. Rajasthan State Road Transport Co. has also been relied wherein it was observed by this court that no person shall be prosecuted and punished for the same offence more than once. In Rasool vs. State of Mysore (8), the offence u/s 494 (b) was considered to be different than the offence under R. 7 of the Foreigners Order 1948 read with S. 14 of Foreigners Act, 1946 and it was held that subsequent prosecution is not barred. In Vonnelly vs. DPP (9), it was held by the House of Lords that the conviction of the appellant on the second indictment, charging robbery with aggravation, would not be set aside as the earlier trial was for quashing of conviction of murder in the course of theft and the plea of autrefois acquit was held in applicable. ;