A peace-security case before the Executive Magistrate and a criminal trial over the same incident can run side by side, the High Court has held, because Sections 107 and 117 CrPC proceedings only prevent and do not punish.
Jammu: Refusing to quash a charge sheet for alleged house trespass and assault, the High Court of Jammu & Kashmir and Ladakh has held that proceedings under Sections 107 and 117 CrPC do not create a double jeopardy bar. The petitioners had contended that the parallel preventive complaint turned their trial into a second prosecution barred by Article 20 of the Constitution [Brij Lal and Others v. Union Territory of J&K and Others].
Justice Sanjay Dhar, sitting as a single judge, saw no occasion to use the Court’s inherent power to quash and dismissed the petition.
Why Article 20 does not apply
Proceedings under Sections 107 and 117 CrPC are preventive and not punitive, Justice Dhar held, while the charge sheet seeks punishment for the alleged offences. As the two serve different purposes, the Court said, Article 20 is no obstacle to the criminal case.
Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once, and it comes into play where the person has already been prosecuted and punished. Chapter VIII of the Code of Criminal Procedure, which takes in Sections 107 and 117, concerns security for keeping the peace and for good behaviour; there the Executive Magistrate acts to prevent a breach of the peace and not to convict anyone of an offence. The Bharatiya Nagarik Suraksha Sanhita carries these powers forward in its own chapter on security proceedings.
In a Public Safety Act habeas corpus matter, the same Court has earlier observed that preventive measures which impose some restraint or hardship are not punishment, since their object is to stop future acts.
How the case reached the High Court
The complainant, a woman, alleges that the petitioners entered her house at night, abused her and beat her when she asked them to leave. Acting on her complaint under Section 156(3) CrPC, a Judicial Magistrate First Class at Akhnoor directed the Station House Officer to register an FIR under Sections 451, 354, 323, 34 and 511 of the Indian Penal Code.
Following the investigation, police dropped Sections 354 and 511 IPC, held Sections 451, 323, 34, 504 and 201 IPC to be made out and filed a charge sheet. The allegations are the complainant’s and remain untested at trial.
Before the High Court, the petitioners relied on two points. The first was a registered Deed of Disinheritance executed against the complainant, which, they said, showed that the complaint grew out of vengeance. The second was that the police had also approached the Executive Magistrate under Sections 107 and 117 CrPC over the same incident, so a prosecution on the charge sheet would mean being tried twice for one act, which Article 20 forbids.
The plea of vengeance
On the plea of vengeance, the Court said it cannot be presumed that the incident never took place merely because it may have grown out of previous enmity between the parties. It noted that the injured witness and other witnesses supported the complaint, and that a medical examination recorded simple injuries on the complainant’s chest and abdomen.
The Court has expressed no view on the guilt of the petitioners, who are presumed innocent unless proved guilty at trial.
Case Title: Brij Lal and Others v. Union Territory of J&K and Others
Bench: Justice Sanjay Dhar, High Court of Jammu & Kashmir and Ladakh at Jammu