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TMI Blog2007 (4) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... n. By an award dated June 27, 1988, the labour court upheld the termination of the petitioner's service as legal and valid. The continuation of possession of the premises from April 13, 1984, being an offence punishable under section 630(1) of the Act, a complaint came to be lodged against the petitioner under section 630(1) and (2) of the Act before the learned Judicial Magistrate First Class, Umergaon, being Criminal Case No. 2342 of 1988. It appears that the petitioner has filed a civil suit being Regular Civil Suit No. 40 of 1985 before the court of competent jurisdiction at Umergaon, claiming to be a tenant of the said premises. However, the said civil suit came to be dismissed, against which the petitioner preferred an appeal which was pending before the District Court. 2. By a judgment and order dated May 7, 1991, the learned Judicial Magistrate held that the petitioner was guilty of the offence punishable under section 630(1) of the Act and accordingly sentenced him to pay a fine of Rs. 500 and in default to undergo simple imprisonment for 20 days. The learned Judicial Magistrate in exercise of powers under section 630(2) of the Act also directed the petitioner to hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the provisions of section 630 of the Act will not be attracted. It was also pointed out that, it was only after the decision of the trial court in civil proceedings against which an appeal was preferred by the petitioner which was pending before the appellate court, that the present complaint which is the second complaint qua the same offence came to be filed. It was submitted that parallel proceedings, both civil and criminal, would not be maintainable. It was argued that the reasoning adopted by the learned Additional Sessions Judge while accepting the contention of the petitioners that the second complaint is not maintainable, but holding that the offence is a continuous offence and hence, the complaint is maintainable for the subsequent period, is erroneous and not in consonance with the provisions of law. 7. On the other hand, Mr. A. Y. Kogje, learned additional public prosecutor for respondent No. 1-State of Gujarat supported the impugned judgments and orders. It was submitted that, under the provisions of section 300 of the Code, a person once convicted or acquitted cannot be tried for the same offence. However, the explanation to the said section provides that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond complaint in respect of the same offence under the said provision. 10. From the facts emerging from the record of the case, it appears that initially a complaint was lodged against the petitioner in the court, at Umergaon, on November 30, 1988, being Criminal Miscellaneous Application No. 33 of 1988, alleging commission of the offence punishable under section 630(1) and (2) of the Act. Pursuant to the said complaint, the learned Judicial Magistrate directed issuance of process against the petitioner, however, on December 5, 1988, the complainant withdrew the complaint. Subsequently, another complaint, i.e. , the present complaint came to be lodged by respondent No. 2 against the petitioner on December 8, 1988, in the court of the Judicial Magistrate First Class, Umergaon for the offence punishable under section 630(1) and (2) of the Act. By the impugned judgment and order dated May 5, 1991, the learned Judicial Magistrate First Class, Umergaon, convicted the petitioner, as noted hereinabove. In appeal before the learned Additional Sessions Judge, it was contended on behalf of the petitioner that, in view of the withdrawal of the complaint lodged vide Criminal Miscellane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. When an accused person is held to be acquitted, it cannot be said that there was no trial, because it would be a contradiction in terms and cannot be said that a person was acquitted without trial. Therefore, the acquittal at whatever stage and for whatever reason is an acquittal after the trial. Even at the early stages of trial, once a trial has commenced, it is nonetheless a trial. It cannot be said that it is not a trial until a matter is fully heard on merits and decided after recording evidence. Therefore, it appears that the person can be said to be tried for the purpose of section 300 of the Criminal Procedure Code once the trial has commenced." 13. The Kerala High Court has, in the case of Keciyo Coconut OH P. Ltd. v. State of Kerala [2002] Crl. LJ 1087 held as follows : "Explanation to section 300, Criminal Procedure Code says that the dismissal of a complaint or the discharge of the accused is not an acquittal for the purpose of the section. In the Explanation, the acquittal of an accused on allowing withdrawal of a complaint is not made mention of and it is not stated that such an acquittal cannot be treated as an acquittal for the purpose of the sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act after trial, another trial on the same set of facts and for the same offence, albeit for a different period would still be barred by the provisions of section 300 of the Code. Besides, in the present case, it is not as if the complaint has has been lodged for a different period subsequent to the date of the order passed in the first case. The complaint is for the period right the date of the alleged withholding of the company property. It is the learned Sessions Judge who has bifurcated the offence into two periods, one prior to the date of the order and another subsequent thereto, to come to the conclusion that in view of the earlier acquittal, the bar of section 300 would be operative insofar as the period prior to the date of the order is concerned but would not be operative insofar as the subsequent period is concerned, as the offence in question is a continuing one. The fact that the offence is a continuing one would come to the aid of respondent No. 2 for the purpose of overcoming the bar of limitation under section 468(2)( a ) of the Criminal Procedure Code, but the same cannot come to the aid of the said respondent while considering the bar under section 300 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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