MOHAMMAD YUSUF AND ORS. Vs. MOHAMMAD EHSAN, DEPUTY SUPERINTENDENT OF POLICE, SAMASTIPUR

JUDGEMENT

(1.) This is an application in revision by the petitioners for setting aside the order dated the 15th September 1971, passed by the Judicial Magistrate, First Class, Samastipur, and to quash the proceeding against them. It appears that on the 23rd of March, 1967 the fardbeyan of one Ramsagar Singh was recorded at village Bishnupur Bathua against the petitioners on the basis of which a case was instituted and after investigation, charge sheet was submitted against them on the 25th March, 1967, under Ss. 3 and 4 of the Bihar Preservation and Improvement of Animals Act, 1955. Cognizance was, accordingly, taken on the 22nd January 1968 and the case was transferred to Magistrate, Second Class, who framed charges under Ss. 295A and 429 of the Indian Penal Code. The case remained pending for sometime before that Magistrate, but on the objection of the petitioners that he being a Magistrate of the Second Class, was not competent to try the case, it was ultimately transferred to a Magistrate exercising First Class powers. There on the 28th August, 1969, an application was filed by the prosecution that for offences under Ss. 3 and 4 of the Bihar Preservation and Improvement of Animals Act, cognizance could be taken only on a complaint by an officer not below the rank of a Deputy Superintendent of Police, and as such permission was sought for to withdraw the case and to file a fresh complaint by a competent authority. The learned Magistrate, before whom the case was pending, by order dated the 28th August 1969, permitted withdrawal of the case and discharged the petitioners under Sec. 494 (a) of the Code of Criminal Procedure.

(2.) It further appears that on the 21st August, 1969, the opposite party filed a fresh complaint on identical facts in the Court of the Subdivisional Magistrate, Samastipur, who by an order passed on the same date took cognizance for the offences under Ss. 3 and 4 of the Bihar Preservation and Improvement of Animals Act and transferred the case to the file of a Judicial Magistrate for disposal. While the case was pending before Sri K.N. Sinha, Judicial Magistrate, First Class, Samastipur, an objection was raised on behalf of the petitioners that the order of withdrawal of the previous case operated as a discharge of the petitioners under Sec. 494 (a) of the Code of Criminal Procedure and that had the effect of acquittal, and as such they could not be put on trial again after taking cognizance on a fresh petition of complaint filed against them. By the impugned order, the learned Magistrate rejected the petition of the petitioners.

(3.) Learned Counsel appearing on behalf of the petitioners in this Court has assailed the order of the learned Magistrate. He has placed reliance on the decisions in (1) In re Velayudha Mudali and others (A.I.R. 1955 Mad 508) and (2) In re Billa Masthan ( : A.I.R. 1955 AP 33). In the former case it has been held that the effect of the withdrawal of the case after the framing of charges amounted to an acquittal of the accused and nothing else and therefore the prosecution was not entitled to file fresh charge -sheets for such of the offences for which charges had already been framed. It was however open to the prosecution to show, on the facts proved and on the facts elicited, an offence exclusively triable by a Court of Session for which no charge had been framed before the withdrawal had been committed. In re Billa Masthan (supra), the decision of In re Velayudha Mudali (supra) has been followed.