Bombay High Court
Mahadeo Sukhdeo Udan And 7 Ors vs The State Of Maharashtra And 3 Ors on 22 November, 2016
Bench: V.K. Jadhav
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213 CRI.APPLICATION NO.1487.2007.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 1487 OF 2007
1) Mahadeo S/O Sukhdeo Udan,
Age : 29 years,
2) Kashibai W/O Sukhdeo Udan,
Age : 65 years,
3)
Mathurabai W/O Vishwambar Ugle,
Age : 32 years,
4) Kalidas S/O Sukhdeo Udan,
Age : 27 years,
5) Surekha W/O Kalidas Udan,
Age : 25 years,
All agriculturists and R/o Kandari,
Taluka Ghansavangi, District Jalna.
6) Narayan S/O Bhanudas Bobade,
Age : 40 years, Occupation agriculture,
7) Shardabai W/O Narayan Bobade,
Age : 40 years, Occupation agriculture,
8) Janardhan S/O Natha Chimane,
Age : 27 years, Occupation agriculture,
All R/o Tirthapuri, Taluka Ghansawangi,
District Jalna. ... APPLICANTS
(Orig. Accused)
V E R S U S
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213 CRI.APPLICATION NO.1487.2007.odt
1) The State of Maharashtra.
(Copy served on the Public Prosecutor
High Court, Bench at Aurangabad).
2) Ashamati W/O Mahadeo Udan,
Age : 25 years, occupation household,
R/o Kandari, Taluka Ghansawangi,
at present Yenora, Taluka Partur
(P.S. Ashti), Dist. Jalna.
3) Sarjerao S/O Eknath Patte,
Age : 62 years, Occ. Agriculture,
R/o Belgaon, Tq. Georai,
District Beed (P.S. Georai).
4) Rameshwar S/O Sheshrao Dhere,
Age: 57 years, Occupation Agriculture,
R/o Bodkha, Taluka Ghansavangi,
District Jalna. ... RESPONDENTS
...
Mr. Joydeep Chatterjee, Advocate for the Applicants.
Mr. A. R. Kale, APP for Respondent No.1.
...
CORAM : V. K. JADHAV, J.
DATE : 22nd November, 2016.
ORAL JUDGMENT:
. Being aggrieved by the order passed by the Joint Judicial
Magistrate, Partur dated 3rd June, 2006, below Exhibit - 29 in R.C.C.
No.59 of 2002, and the judgment and order passed by the learned
Ad-hoc Additional Sessions Judge, Jalna dated 5th March, 2007, in
Criminal Revision Petition No.88 of 2006, confirming thereby the order
213 CRI.APPLICATION NO.1487.2007.odt
passed by the learned Magistrate below Exhibit - 29 as aforesaid, the
original Accused preferred this criminal application.
2 Brief facts giving rise to the present criminal application
are as follows:
Respondent No.2 had filed a private complaint
bearing R.C.C. No.149 of 1999, before the Judicial Magistrate First
Class, Partur against the present Applicants for having committed an
offence punishable under Section 494 and 109 of the Indian Penal
Code. On 13th September, 2000, Respondent No.2 / Complainant
moved an application at Exhibit - 35 for withdrawal of the complaint
on the ground that the parties had settled the matter out of the Court.
The learned Magistrate has thus permitted the Complainant to
withdraw the complaint and discharged the Applicants / Accused and
closed the proceedings. On 13th February, 2002, Respondent No.2 /
original Complainant had filed another complaint bearing R.C.C.
No.59 of 2002 against the Applicants / Accused on the very same
facts with the same allegations for having committed the same
offence punishable under Sections 494 and 109 of the Indian Penal
Code. It has mentioned in the complaint that on account of fraud
213 CRI.APPLICATION NO.1487.2007.odt
played by the Accused, she was forced to withdraw the first complaint.
The learned Judicial Magistrate First Class, Partur by order dated 21 st
February, 2002, issued process against the Applicants / Accused for
the offence punishable under Sections 494 and 109 of the Indian
Penal Code. In response to the summons, the Applicants / Accused
appeared before the Trial Court and moved an application Exhibit -
29 seeking dismissal of complaint. The learned Judicial Magistrate
First Class by impugned order dated 3rd June, 2006, rejected the said
application and the learned Ad-hoc Additional Sessions Judge by
impugned and order dated 5th March, 2007, confirmed the order
passed by the learned Magistrate and dismissed the Criminal
Revision Petition No.88 of 2006. Hence this criminal application.
3 The learned counsel for the Applicants / original Accused
submits that in respect of the same incident with the same facts and
allegations, the second complaint is not maintainable when the first
complaint came to be withdrawn and the Applicants / Accused came
to be discharged by the Magistrate. The learned counsel submits that
the Court below has not considered that the first complaint was
withdrawn on the ground that the matter is settled between the parties
213 CRI.APPLICATION NO.1487.2007.odt
out of the Court and the Applicants / Accused came to be discharged
by the Magistrate. The learned counsel submits that the said
discharge has an effect of acquittal and therefore, there is a bar of
second complaint as provided under Section 300 of the Code of
Criminal Procedure.
4 None present for Respondent Nos.2 to 4.
The learned APP for the Respondent No.1 / State submits
that bar of Section 300 attracts only when a person has been tried by
a Court of competent jurisdiction for an offence and convicted or
acquitted of such offence and while such conviction or acquittal
remain in force, not liable to be tried again for the same offence. The
learned APP submits that in the instant case, the complaint was
withdrawn by the original Complainant on the ground that the matter
was settled out of the Court. It is, thus, clear that the present
Applicants / Accused were not tried by the competent Court vide first
complaint and the Courts below have therefore, rightly held that the
second complaint is maintainable.
6 On careful perusal of the record of first complaint, it
213 CRI.APPLICATION NO.1487.2007.odt
appears that Respondent No.2 / Complainant has filed an application
Exhibit - 5 by contenting that the matter is settled between the parties
out of the Court and therefore, she is not willing to proceed with the
complaint. By order dated 13th September, 2000, the Magistrate has
permitted to withdraw the complaint and accordingly discharged the
Applicants / Accused and closed the proceedings. Though the
second complaint is on the same facts and allegations filed by the
same Complainant against the same Accused persons, in the first
complaint, the Accused were not tried by the competent Court and
therefore, the bar as provided under Section 300 of the Code of
Criminal Procedure does not attract.
7 So far as the trial of summons case by the Magistrate, the
withdrawal of complaint is permissible and on withdrawal of the
complaint the Magistrate is bound to acquit the Accused against
whom the complaint so withdrawn. However, identical provision is not
made in respect of the trial of warrant cases by the Magistrate
instituted otherwise on police report. Even assuming that no such
withdrawal is permissible in case of warrant trial instituted otherwise
on the police report, if it is withdrawn under the permission granted by
213 CRI.APPLICATION NO.1487.2007.odt
the Magistrate and if the same is not challenged by any of the parties,
there cannot be any bar to the second complaint when the
Complainant has come with a specific case that she withdrew the first
complaint on account of fraud played on her by the Applicants /
Accused.
8 In view of the above discussion, I do not find any
substance in the criminal application. Hence the following order:
O R D E R
I. The criminal application, is hereby dismissed.
II. Rule discharged.
III. Criminal application is accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
