The High Court of Judicature at Mumbai held that a second complaint for the same cause of action is barred as the accused had already been acquitted under Section 300 CrPC, with the original acquittal appeal never filed.
Application for leave to prefer appeal and the appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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SNS
IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.3075 OF 2010 IN
CRIMINAL APPEAL NO. OF 2011
The State of Maharashtra ...Applicant. v/s. Laxman R. Shelage ...Respondents.
Mr. K.V.Saste , APP For the Applicant/State. Respondent present in person.
CORAM : J.H. BHATIA, J. DATED : AUGUST 18 , 2011.
P.C.
1 Heard the learned APP. Respondent/accused is present in person. Perused the relevant documents.
2 It appears that on 26th August, 2003 a sample of khava or mava, which is milk product was taken from the sweet shop of the accused. According to the prosecution, it was found to be adulterated and complaint was filed on 11th June, 2004. On 29th July, 2007, said complaint was dismissed in default because the complainant did not appear on a number of occasions. On 27.1.2009 food inspector filed fresh complaint on the same cause of action alongwith an application for condoantion of delay in filing the complaint. That application was registered as Misc. Application No.23/2009. That application came to be
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rejected by the Magistrate on 16.1.2010. That order is being sought to be challenged by filing criminal appeal alongwith this application for leave to prefer appeal.
3 A complaint of the offence under the provisions of Food Adulteration Act is filed by the concerned Food Inspector and it is always treated as private complaint because case is not filed through the police nor the F.I.R. is registered. Provisions of Chapter 20 pertaining to the trial of summons cases by the Magistrates are applicable to such cases. Section 256 provides that if on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day. Therefore, dismissal of the complaint results in acquittal of the accused. Once the accused had been acquitted, the same Court could neither recall that order nor could allow filing of the fresh complaint on the same cause of action for which the accused had already been acquitted in view of the provisions of Section 300 of the Cr.P.C. Proper remedy against the dismissal of the complaint and the acquittal of the accused would be to prefer an appeal against that order of acquittal. The order of acquittal
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was passed on 29.7.2007. That order was never challenged by filing an appeal against the acquittal. Instead of filing the appeal against that order of acquittal, after a period of about 18 months, the complainant sought to file fresh complaint on 27.1.2009 on the same cause of action or on the basis of same facts. In view of the provisions of Section 300, accused could not be tried second time for the same offence for which he was already acquitted.
4 Complaint was filed alongwith the application for condonation of delay. The learned Magistrate noted that the offence is punishable with minimum imprisonment of six months, which may extend to three years and, therefore, under Section 468, period of limitation to take cognisance of such offence is three years. Second complaint was sought to be filed about 5 and half years after the alleged offence was committed, therefore, the second complaint was barred by the limitation. It is true that under Section 473, if the Court is satisfied that the delay has been properly explained or that it will be necessary so to do in the interest of justice, Court may take cognisance of the complaint even after expiry of period of limitation. In the present case, accused had already faced the trial for a period of about 3 years before the first complaint was dismissed. By virtue of provisions of Section 300
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of the Cr.P.C., accused can not be tried for the same offence second time. Therefore, cognizance of the second complaint could not be taken. Firstly, it was barred by the limitation and there was no valid reasons for condoning such a long delay. Secondly, accused could not be tried for the same offence second time. It is also material to note that prosecution seeks to file appeal not against the original order of acquittal but against the order dated 16.1.2010 by which application for condonation of delay was rejected. There may be one more reason to reject the second application filed in 2009. It is settled position that the milk product does not remain fit for the analysis for a long time. If now the delay is condoned and second complaint is registered, accused will not be in a position to exercise his right of making prayer to refer second sample to the Central Laboratory for analysis if he wants to challenge the earlier report and thereby he will be deprived of valuable right given to him under the law.
5 Taking into consideration all the facts and circumstances, I find no substance in the appeal. Therefore, application seeking leave to prefer appeal and the appeal stand dismissed.
2 issues framed by the court
Whether the accused could be tried a second time for the same offence after acquittal.
Whether the delay in filing the second complaint could be condoned despite the limitation period.
3 provisions across 1 enactments
State of Maharashtra
Laxman R. Shelage
J.H. BHATIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
