- (1.) THIS a reference by the Additional Sessions Judge, Bundi, in a case under sec. 429 of the Penal Code and arises under the following circumstances.
(2.) IT appears that on the 16th April, 1962, one Sunderlal Mina of village Bharta Bavri filed a report at the police station Talera that the accused Kalu Chhotia had inflicted injuries with a lathi on his she-buffalo aged about seven or eight years with the result that it died on the same day. According to the complainant the she-buffalo was worth about 350 rupees. Both the accused were eventually challaned in the Court of the Sub-Divisional Magistrate, Bundi, from whose court the case was then transferred to that of the Magistrate, First Class, Bundi. Before this case was disposed of by the Magistrate, it so transpired that the aforesaid Sunderlal also filed a complaint before the Nyaya Panchayat at Barundhan under sec. 5 of the Prevention of Cruelty to Animals Act, 1890 (Act No. XI of 1890, hereafter called the Act) on the 22nd September, 1963, which was tried and the result was that both the accused named above were convicted under sec. 5 of the Act and sentenced to a fine of Rs. 16/- each. That being so, an objection was raised on behalf of the accused before the Magistrate that as they had already been tried and punished by a competent court on the very facts which were the subject-matter of the complaint before the Magistrate, they could not be tried and prosecuted for the same offence or on the same facts for another offence by virtue of the provisions of sec. 403 Cr. P. C. and consequently the Magistrate should stay his hands and consign the case to the record. The Magistrate repelled this objection. His principal reasoning seems to have been that although it was beyond dispute that the accused had been tried and punished by the Nyaya Panchayat for an offence based on the same facts upon which the case against the accused before him was founded, the offence for which the accused were being tried before him was a distinct one, being under sec. 429 of the Penal Code, which the Nyaya Panchayat was not competent to try at all, and, therefore, he dismissed the objection raised by the accused, and ordered that their trial under sec. 429 shall be proceeded with. Aggrieved by this order, the accused petitioners went up in revision before the Additional Sessions Judge, Bundi, who has made the present reference and his recommendation is that the order of the trial Magistrate be set aside and a direction be issued to him not to proceed with the trial of the case as the accused petitioners could not be tried and punished on the same facts twice. The contention raised on behalf of the accused petitioners, in my opinion, is not without force. There can be no doubt or dispute that the petitioners had been convicted and sentenced by the Nyaya Panchayat under Sec. 5 of the Act on precisely the same set of facts upon which the present case before the Magistrate under the ordinary criminal law of the land is founded. The learned Magistrate seems to have thought, however, that as the Panchayat was not competent to take cognizance of a case under Sec. 429 of the Penal Code, he was entitled to proceed with the case under sub-sec. (4) of Sec. 403 Cr. P. C. That sub-section reads as follows: - "403 Person once convicted or acquitted not to be tried for same offence.- (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the court by which he was first tried was not competent to try the offence with which he is subsequently charged. " The learned Magistrate, however, seems to have lost sight of the next following sub-section of Sec. 403 which, inter alia, lays down that nothing in this section shall affect the provisions of Sec. 26 of the General Clauses Act, 1897. Sec. 26 of the General Clauses Act reads as follows: - "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. " This is an over-riding provision and must be given the effect to which such a provision is entitled. It clearly lay down that the accused cannot be punished twice over where his act or omission constituting an offence falls under two or more enactments. It must follow therefore, bearing in mind sub-sec 5 of Sec. 403 Cr. P. C. read with Sec. 26 of the General Clauses Act that the accused where his act or omission constitutes an offence under more than one enactment cannot be punished twice for the same offence notwithstanding anything contained in the other provisions of Sec. 403. This conclusion, to my mind, is not adversely affected by the circumstance that the Nyaya Panchayat could not have tried the accused under Sec. 429 of the Penal Code. It further seems to me that where an act is punishable under a special law such as the Act of 1890 and also under a general statute such as the Penal Code, the offender could have been initially prosecuted for either or both of these offences but could not and cannot be punished twice for the same act or omission which constitutes an offence under both the enactments. The result, therefore, at this date inevitably is that when the accused petitioners already stand convicted and punished for killing the complainant's she-buffalo under Sec. 5 of the Act, they cannot be punished once again on the same set of facts for an offence under the Penal Code and in such circumstances their prosecution under Sec. 429 I. P. C. would be little short of a futility and a sheer waste of judicial time. In this view of the matter, I accept this reference, quash the order of the Magistrate and the complaint under Sec. 429 I. P. C. , and direct that the case shall be consigned to the record. .;