1. The circumstances arising in these four revisions have to be set out briefly in order to understand the point of law raised by Mr. P. 0, Parthasarathi Aiyangar, the learned Counsel for the petitioners.
2. O. C. No. 138 of 1946 on the file of the Sub-Divisional Magistrate, Vellore, was the result of a charge against forty accused for vari-Ous offences under the Indian Penal Code. When that was taken up for hearing, six of the aocused were absconding and so the ease was split up against the abacondera and numbered as c. c. No. 207 of 1946. Subsequently, c. o. No, 207 of 1946 was transferred to the Additional First Class Magistrate of Cheyyar at Ranipet and numbered as 0. C No. 74 of 1946. In the meanwhile, the Sub. Divisional Magistrate, Vellore, proceeded with the enquiry against the 34 accu. aed before him in c. c. No. 188 of 1946 and framed charges against them for offences under S3. 147, 448, 427, 435, 335 and 332, Penal Code. Afterwards this case was also transferred to the:. Additional First Class Magistrate of Oheyyar a( Eanipet and numbered as c. c. No. 73 of 1946. Subsequently, on an application made by the accused in C. C. Nos, 73 and 74 of 1946, they wore clubbed together as one case and intended to be tried as such. The accused again filed an application praying that as a combination of the fifth and sixth charges viz,, those under 'Ss. 825 and 832, Penal Code, would constitute the more serious offense under Section 833, Penal Code, exclusively triable by a Court of Session, the calendar cases should be converted into a preliminary register case and proceeded with on that basis, On this petition arguments were heard and an order passed by which 0. c. Nos. 78 and 74 of 1946 were converted into P. B. C. No. 1 of 1946. During the progress of the enquiry in p. B. 0. No. 1 of 1946, the Public Proseoutor applied under Section 494, Criminal P. C, for permission to withdraw the case stating also that the intention was to file separate prosecutions against" the accused differently for various offences. The Court granted the permission for the withdrawal and discharged the accused under Section 494 (a), Criminal P. C.
3. The four cases out of which the above criminal revision oases arise were subsequently filed, in each of which some of the accused in P. B, 0. No. 1 of 1940 have been arraigned against for offences under various provisions of the Penal Code. Thereupon, counsel for the accused took the objection that the result of withdrawal of p. B. 0. No, 1 of 1946 amounted to an acquittal of the aocused for such of the offences as were triable by the Additional First Class Magistrate, such as offences under Sections 147, 418, Penal Code, etc The lower Court has over ruled those objections and the petitioners have sought to revise those orders.
4. The question for consideration is what in substance is the effect of the withdrawal of P. B. c. No. 1 of 1946. The ruling in Sriramulu v. Veerasalivgam 88 Mad. 585 : A.I.R. (2) 1915 Mad. 23: 15 Cr. L. 3. 673, is authority for the position that when once a charge is framed, it cannot be wiped off by either discharging the accused or withdrawing the case. It is clear that j proceedings bsfore a Magistrate in a warrant case [ are only enquiries until the charge is framed and las soon as the charge is framed, the enquiry is transformed into a trial.
"Where the case has developed into a trial stage, its dismissal or withdrawal will result only is an acquittal of the accused. The original charge framed cannot be ignored or cancelled without either a conviction or am acquittal. Even if after the framing of a charge, a succeeding Magistrate examines the witnesses afreah and passes an order of discharge, still such an order would amount to 1 an acquittal. The decision in Sriramulu vf I Veerasalingam,
88 Mad. 585 : a. i. e. (a) 1915 ' Mad. 23: 15 Cr, L. J. 673), has been consistently followed in this Court: See
Abdul Hamid v. Muhammed Sali
52 M. L. w. 348 :
1940 M.w.N. 962. As early as 1888, a Bench of thi9 Court in
Queen v. Sivarama la Mad. 35, has held that an accused committed to sessions on a charge cannot be discharged by the Sessions Court under
Section 494, Criminal P.O., but must either be convicted or acquitted. The withdrawal of a charge by the Public Prosecutor with the permission of the Sessions Judge amounts to an aoquittal of the accused. Bearing the principles underlying the above decisions, let us see what is, in effect, the result of the withdrawal. The learned Public Prosecutor urges that the request for withdrawal was combined with the statement that the intention of the prosecution was to file separate cases against individuals or groups of accused separately and according to him, in pith and substance, the order giving permission to withdraw the case amounts also to an order empowering the institution of the present cases. If the Code of Criminal Procedure contained a provision similar to 0. 23, b. l, Civil P.C., allowing the withdrawal of a case with permission to file, on the same facts, a fresh complaint, this argument is entitled to weight. But in the absence of any such rule of law, one has to envisage the result of a withdrawal in accordance with the ideas underlying the
sections of the Criminal Procedure Code. If it is impossible to wipe off or obliterate a charge already framed without an acquittal or with the culmination of the charge in a conviction, any withdrawal with permission to file a fresh complaint cannot be understood as the keeping alive of a charge. Moreover, the Criminal Procedure Code does not, in specific terms, provide for the conversion of the category of calendar oases into the category of preliminary register cases. By
section 347, the code enacts that if, after the commencement of an en. quiry or trial, it appears to the Magistrate at any stage of the proceedings before signing the judgment that the case ought to be tried by a Court of Session or the High Court, and if he is empower. ed to commit for trial, he shall commit the accused under the provisions of the Code. In this case the First Class Magistrate converted the calendar case into a preliminary register case under the powers conferred by this section. "
Without altering the nomenclature of the cases, if he had committed the case, the section would have been satisfied. The alteration of the nomenclature into a preliminary register case does not legally affect the nature o the proceedings and if the nature of proceedings is not affected, the withdrawal of a case after the framing of a charge, can amount to an acquittal of the accused and nothing else.
5. I would, therefore, hold that the prosecution is not entitled to file fresh charge sheets against the accused for such of the offences for which charges had already been framed. But it is 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 has been committed. These revision petitions are, therefore, allowed only to the extent that the enquiry in the various calendar cases before the lower Court can-not proceed for any offences for which charges had already been framed. The Courts are at liberty to proceed with the enquiry in relation to an offence triable exclusively by a Court of Session which might emerge from the evidence adduced.