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Shanker Dattatraya V... v. Dattatraya Sadashiv ...
Judgment Summary — Patkar, J. (with concurring remarks by Baker, J.)
Factual and Procedural Background
On April 11, 1927 the complainant lodged a complaint under section 102 of the Presidency Towns Insolvency Act alleging that the accused, an undischarged insolvent, had obtained credit from him. Summons was issued but was not served on the accused. On April 28, 1927, neither the complainant nor the accused appeared in Court; the learned Magistrate, relying on section 247 of the Criminal Procedure Code, acquitted the accused. The next day (April 29) the complainant applied to set aside that order on the ground of inability to be present; the application was rejected. Nearly a year later, on May 2, 1928, the complainant filed a fresh complaint before another Magistrate. That Magistrate held that the earlier acquittal under section 247 barred fresh proceedings under section 403 CrPC.
Legal Issues Presented
- Whether an order of acquittal under section 247 CrPC, passed when summons was issued but not served and the accused not present, is a valid acquittal that operates as a bar to a fresh complaint under section 403 CrPC.
- Whether the word “tried” in section 403 CrPC requires that a substantive trial on the merits must have commenced (for example, by service of summons or by recording of evidence) before an acquittal can operate as a bar to subsequent prosecution.
Arguments of the Parties
Complainant's Arguments
- The April 28 order of acquittal is not a legal order and therefore does not bar a fresh complaint.
- Because summons was not served on the accused, the trial in the previous proceedings had not commenced; accordingly an acquittal under section 247 should not operate as a bar.
- Relied upon jurisprudence (for example, Kotayya v. Venkayya) supporting the proposition that a summons-case trial cannot be said to begin until particulars are stated to the accused under section 242 CrPC.
No detailed account of arguments advanced on behalf of the accused or the State is contained in the opinion beyond the Magistrate's invocation of section 247 to acquit and subsequent reliance by the opposing magistrate on section 403 to bar retrial.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re S.E. Dubash | Where the complainant is absent, the proper order under section 247 is an order of acquittal. | Used to support that section 247 produces an acquittal (statutory acquittal) where the complainant does not appear. |
| In re Muthia Moopan | A decision in a case under section 107 CrPC (different procedural context). | Distinguised by the court: the case was under section 107 and not under section 247, so it did not control the present question. |
| Kotayya v. Venkayya | Held that trial in a summons case does not begin until particulars are stated to the accused under section 242 CrPC. | Noted as relied upon by the applicant, but the court declined to follow it; the decision was treated as differing from later authorities and from the view taken in this case. |
| Re Dudekula Lal Sahib | Madras High Court view that withdrawal by public prosecutor under section 494 or an acquittal after summons issued but before service can bar later trial. | Accepted by the court as supporting the proposition that statutory acquittals (including under section 247) can bar subsequent prosecutions even if the accused was not served. |
| Guggilapu Paddaya of Palakot | When a case is disposed of under section 247 (complainant and accused absent), the order operates as a bar to further proceedings; an accused served with process was entitled to the benefit of acquittal. | Relied upon as one of the decisions establishing that an acquittal under section 247 operates as a bar under section 403. |
| Kiran Sarkar v. Emperor (Patna High Court) | Presence or absence of the complainant is the important matter for section 247; accused need not be present or summoned; the order under section 247 is a final order of acquittal and operates as a bar under section 403. | Applied by the court as persuasive authority supporting the view that a section 247 acquittal bars fresh proceedings. |
| Nityananda Koer v. Rakhahari Misra (Calcutta High Court) | An order of acquittal under section 247, if not set aside, is a bar to fresh proceedings for the same offence. | Quoted as an authority consistent with the court's conclusion that a section 247 acquittal is final unless set aside. |
| Emperor v. Dulla (Allahabad High Court) | Section 247 acquittal operates as a bar to subsequent proceedings for the same offence. | Relied on alongside other High Court decisions to establish a consistent body of authority. |
| Ram Mahato v. Emperor | Section 403 is imperative and bars second trials; it makes no distinction between acquittals after trial and acquittals under sections 247, 345 and 494; an acquittal under these sections bars second trial even if the acquittal is arguably bad. | Relied upon heavily: the court adopted the principle that statutory acquittals under the cited sections are within the scope of section 403 and prevent re-prosecution on the same charge. |
Court's Reasoning and Analysis
The court began by examining the text and purpose of section 247 CrPC, reproducing its wording which mandates that if summons has been issued and the complainant does not appear on the appointed day (or an adjourned day), the Magistrate shall acquit the accused unless he adjourns. The court emphasized that section 247 does not condition an acquittal on the service of summons or on the accused's presence.
On the meaning of "tried" in section 403 CrPC (which bars re-trial after conviction or acquittal), the court held that "tried" cannot be taken to mean exclusively a trial on the merits. The court reasoned that certain statutory provisions — notably sections 247, 345 and 494 — expressly contemplate acquittals that may occur even where no evidence has been recorded against the accused. Consequently, an acquittal under these provisions falls within the ambit of section 403 and will bar subsequent prosecution on the same facts.
The court addressed the complainant's contention that a trial must have "commenced" (for example by service of summons or by reading of particulars under section 242) before an acquittal can operate as a bar. The court rejected this narrow construction, holding instead that proceedings are "commenced" when the Magistrate takes cognizance and issues summons; service is not a precondition to an acquittal under section 247. The court supported this interpretation by referring to a line of authority from several High Courts which regard section 247 acquittals as final unless set aside.
The court distinguished authorities that took an opposite view (for example, Kotayya v. Venkayya) and noted that the Madras High Court itself had earlier re-examined the issue and accepted the view that section 247 acquittals operate as a bar (Re Dudekula Lal Sahib). The court considered and applied other decisions (Guggilapu Paddaya, Kiran Sarkar, Nityananda Koer, Emperor v. Dulla, Ram Mahato) to show that the balance of authorities supports treating section 247 acquittals as statutory and final for the purposes of section 403.
Justice Baker, concurring, reiterated the textual point that section 247 refers to "the day appointed for the appearance of the accused" (not to the accused's actual appearance) and emphasized that the statutory scheme deliberately departs from the English rule requiring a decision on the merits before recording an acquittal. He also added a pragmatic consideration: the complainant had not sought timely revision of the April 28 order and the later attempt to pursue the matter by filing a fresh complaint was an improper collateral route to accomplish what could not be obtained directly.
Holding and Implications
Holding: The court discharged the rule; it held that the acquittal pronounced by the Magistrate on April 28 under section 247 CrPC is a valid statutory acquittal which remains in force and, because it has not been set aside, operates as a bar to a fresh trial under section 403 CrPC.
Implications:
- The direct effect of the decision is that the accused cannot be retried on the same facts by means of the fresh complaint filed on May 2, 1928; the April 28 acquittal stands.
- The court treated statutory acquittals under sections 247, 345 and 494 as falling within the prohibition of section 403, thereby preventing re-prosecution on the same charge even where no evidence on the merits was recorded in the earlier proceeding.
- The court declined to follow decisions that required service of summons or the actual commencement of trial (in the sense of hearing on merits) before an acquittal could operate as a bar; it preferred the construction that proceedings commence when the Magistrate takes cognizance and issues summons.
The opinion does not purport to set aside a previously established rule of law by higher authority; it identifies and follows a line of High Court authorities and articulates a statutory interpretation grounded in the text of the Code and its legislative intent.
Disposition: Rule discharged.
J.G.R.
Patkar, J.:—
In this case the complainant filed a complaint on April 11, 1927, against the accused under section 102 of the Presidency Towns Insolvency Act alleging that the accused being an undischarged insolvent had obtained credit from the complainant. Summons was issued but was not served, and on April 28, 1927, the complainant was absent in Court. The accused was also not present. Under section 247 of the Criminal Procedure Code the learned Magistrate acquitted the accused. On April 29, the complainant appeared before the Court and requested the Court to set aside the order on the ground that he was unable to be present in Court on April 28. The application of the complainant was rejected. On May 2, 1928, nearly a year after the order of acquittal, the complainant filed a fresh complaint before another Magistrate. The learned Magistrate held that the accused having been acquitted under section 247 of the Criminal Procedure Code, a fresh trial of the accused was barred under section 403 of the Criminal Procedure Code.
On behalf of the complainant it is urged that the order of acquittal passed on April 28 is not a legal order, and that the order of acquittal does not bar the trial of the accused under the fresh complaint. It is urged that though summons was issued, it was not served upon the accused and the trial of the accused had not commenced in the previous proceedings. The wording of section 247 is against the contention of the applicant. section 247 of the Criminal Procedure Code says:—
“If the summons has been issued on complaint, and upon 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, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.”
In In re S.E Dubash, where in the absence of the complainant the Magistrate struck off the complaint, it was held that the proper order under section 247 was an order of acquittal. Under section 403 of the Criminal Procedure Code:—
“A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.”
It is clear that the previous order of acquittal has remained in force and has not been set aside by any order of a superior Court. The word “tried” in section 403 does not necessarily mean tried on the merits. The composition of an offence under section 345 of the Criminal Procedure Code, or a withdrawal of the complaint by the public prosecutor under section 494 of the Criminal Procedure Code would result in an acquittal of the accused even though the accused is not tried on the merits. Such an acquittal would bar the trial of the accused on the same facts on a subsequent complaint. Under the explanation to section 403 “the dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section.” The composition of an offence under section 345, the withdrawal under section 494, or an acquittal under section 247 of the Criminal Procedure Code is not included in the explanation to section 403 of the Criminal Procedure Code. It is urged, however, on behalf of the applicant that though the word “tried” may not mean trial on the merits, yet the trial must commence before an order of acquittal is passed, and that unless a summons is served in a summons case against the accused the trial cannot be said to have commenced against the accused. We are of opinion that as soon as a Magistrate takes cognizance of an offence and an order for summons is issued, the proceedings have commenced against the accused, and under section 247 it is not necessary that the summons should be served, or that the accused should be present in Court before an order of acquittal might be passed in his favour on account of the absence of the complainant. Reliance is placed on the decision in In re Muthia Moopan, which was a case under section 107 of the Criminal Procedure Code and was not a case of an offence in which the accused could be acquitted under section 247 of the Criminal Procedure Code. In Kotayya v. Venkayya, on which reliance was placed on behalf of the applicant, it was held that the trial of an accused in a summons case cannot be said to begin until the particulars of the offence are stated to the accused under section 242 of the Criminal Procedure Code. The view in Kotayya v. Venkayya has been dissented from by the Madras High Court in Re Dudekula Lal Sahib, where it was held that the withdrawal of a case by the public prosecutor under section 494 followed by the acquittal of the accused was sufficient to bar the further trial of the accused for the same offence, and that though the accused was not tried on the merits the withdrawal of the prosecution by the Public Prosecutor after the summons was issued but before it was served on the accused was sufficient to bar the subsequent trial of the accused. In Guggilapu Paddaya of Palakot it was held that when a case was disposed of under section 247 of the Criminal Procedure Code, the complainant and accused both being absent, the order under section 247 operated as a bar to further proceedings. The accused who was, however, served with process in that case was held entitled to the benefit of an acquittal under section 247. In Kiran Sarkar v. Emperor, it was held by the Patna High Court that the important matter for an order under section 247 of the Criminal Procedure Code is the presence or absence of the complainant, that it is not necessary that the accused must be present or must have been summoned to the Court, and that the order under section 247 is a final order of acquittal which operates as a bar under section 403 of the code to the trial of the accused for the same offence. To the same effect is the decision of the Calcutta High Court in Nityananda Koer v. Rakhahari Misra where it was held that an order of acquittal passed under section 247 of the Criminal Procedure Code, so long as it is not set aside by a competent Court is a bar to the fresh proceedings in respect of the same offence. To the same effect is the decision of the Allahabad High Court in Emperor v. Dulla. In Ram Mahato v. Emperor, it was held that the provision contained in section 403 of the Criminal Procedure Code is imperative and bars a second trial of a person who has once been acquitted on the same charge, that the section does not make any distinction between acquittals after trial and acquittals under sections 247, 345 and 494 of the Code, and that so long as an order of acquittal under section 247 stands, section 403 bars a second trial on the same charge, no matter whether the order of acquittal is good or bad, legal or illegal. The intention of the Legislature is quite clear for it appears from section 205 of Act X of 1872 that the Magistrate could only dismiss the complaint under the Criminal Procedure Code of 1872 whereas under the Code of 1882 and the subsequent Codes the Magistrate was empowered to acquit the accused. The statutory acquittal was intended to operate as a final bar to further proceedings. The order of acquittal in this case has remained in force and has not been set aside. On these grounds we think that the order of acquittal passed by the Magistrate on April 28 bars a fresh trial of the accused on the same facts under section 403.
On these grounds we discharge the rule.
Baker, J.:—I agree. The balance of authorities is in favour of the view we have taken. The Madras High Court had at one time expressed a different view, but ultimately the view taken by Abdur Rahim, J. in Guggilapu Paddaya of Palakot has been accepted in Re Dudekula Lal Sahib. The learned Chief Justice in dealing with the question has pointed out that the English rule of recording decisions on the merits has not been adopted by the Indian Legislature which has provided for certain statutory acquittals. It is obvious in view of these particular sections, namely, sections 247, 345 and 494, that the word “trial” or “tried” in section 403 cannot mean a trial in the ordinary sense of the word, that is, a decision on the merits, because each of these sections provides for an acquittal even when no evidence whatever has been recorded against the accused. I can find no reason why and how the definition of “tried” does not exist in the section we should insert it in the Code. Section 247 says:—
“If the summons has been issued on complaint, and upon 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, notwithstanding anything hereinbefore contained, acquit the accused …”
It is to be noticed that it does not say “upon the day on which the accused appears” but only “the day appointed for the appearance of the accused,” and if it had been intended that the appearance of the accused to answer the charge was necessary, there is no reason why the legislature should not have said so. I would, therefore, with respect agree with the view taken by the Madras High Court in Re Dudekula Lal Sahib.
There is another point in this case. This order of acquittal was passed long ago and no proceedings by way of revision were taken by the complainant in order to get it set aside, and any such application for revision of that order would now be rejected as out of time. But the complainant tried to do by a side way what he could not do directly and filed a fresh complaint on the same facts. I do not think that this should be encouraged and that is an additional reason for rejecting the application. But on the law as it stands I am quite clear in my mind that the order of acquittal passed by the Magistrate under section 247, although the accused had not been served with a summons, is a good order and such an acquittal operates as a bar to any such trial on the same facts.
I agree, therefore, that the rule should be discharged.
Rule discharged.
J.G.R
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