Abdur Rahim, J.:— The question of law which we are asked to consider in the letter of reference arose under the following circumstances: The police had filed a charge sheet under section 447 of the Indian Penal Code against a certain person before a Magistrate with second-class powers, a summons was issued, but before it was served the Public Prosecutor with the consent of the Court withdrew from the prosecution under section 494, Criminal Procedure Code, and the accused was then acquitted as required by that section. Thereafter the person on whose field the offence of criminal trespass was alleged to have been committed, preferred upon the same facts a complaint charging the accused with offences under sections 143, 447 and 341 of the Indian Penal Code. That case was tried and the accused convicted and sentenced separately for each of the offences. The convictions were on appeal confirmed but the sentences reduced. The District Magistrate under section 438 of the Criminal Procedure Code has asked us to revise the conviction and sentence under section 447, on the ground that the acquittal under section 494 in this case where no charge was required to be framed, operated as a bar to further trial for the same offence.
The effect of an order under section 494 in a summons-case does not appear to have been the subject of any decision so far as the present question is concerned. I had, however, sitting singly to consider the effect of an acquittal under section 247 in In re Guggilapu Paddaya of Palakot(1), and held that it operated as a bar to further proceedings for the same offence so long as the order remained in force. But a Divisional Bench consisting of my learned brother and Ayling, J., have in a recent case, Re Kotayya(2) held otherwise. It seems to me that no distinction can be drawn between an acquittal under section 247 and one under section 494 for the purposes of the present question; and I need hardly say that in deference to the views expressed by Ayling and Napier, JJ., I have carefully reconsidered the matter. But even a more detailed examination of section 403 and the other provisions of the Criminal Procedure Code and of the authorities has only confirmed me in my former opinion.
The question turns on the construction of section 403. Its sub-section (1) says that
“a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted”
is not liable to be tried again for the same offence, while sub-sections (2) and (4)—sub-section (3) does not throw much light on the question as all convictions must be after trial—in dealing with certain cases where the previous acquittal or conviction would not bar further trial, speak of “a person acquitted or convicted of any offence” dropping the words “who has once been tried.” It can hardly be doubted that by the words “a person who has once been tried by a Court of competent jurisdiction for an offence and convicted, or acquitted,” in sub-section (1) and “person ‘acquitted’ or ‘convicted’ of any offence” in sub-sections (2) and (4) the legislature contemplated the same set of facts. Now, what is the sense in which the legislature has used the two phrases? In the first place, it must be taken to be a clear implication of sub-sections (2) and (4) that in cases other than those mentioned therein, the provisions of sub-section (1) should apply and the person who has been “acquitted” or “convicted” should not be tried again. Then the explanation to the section is important in ascertaining what is intended by sub-section (1). It mentions the orders which are not to be regarded as acquittals for “purposes of this section” and this can have little signification, if all orders of acquittal passed in accordance with the express provisions of the Code were not intended to have the effect defined by the section, viz., the barring of further proceedings. There is no attempt made to discriminate between different orders of acquittal.
An examination of the other provisions of the Criminal Procedure Code shows at once the solicitude evinced by the legislature on the question of the form of orders which the various Criminal Tribunals are to pass in different kinds of proceedings in given circumstances with a view mainly to indicate their respective effects and to provide suitable remedies in case of wrong orders of each category. The list of the orders terminating proceedings given in the explanation seems to be exhaustive and of these the main classes are orders of “discharge” or “acquittal.”
In summons-cases the proceedings against an accused person commence with the issue of process (Chapter XVII) on the Magistrate taking cognizance of the offence in one of the ways mentioned in the previous chapters. But if in a case of “complaint” he refused to take cognizance his order would be one dismissing the complaint (section 203). If the Magistrate took cognizance and issued process, the proceedings are to be terminated by an order either of “acquittal” or “conviction” (section 245) unless the proceedings are stopped under (section 249). The order of “acquittal” is to be passed if after hearing the evidence the Magistrate finds the accused not guilty (section 245), or if the complainant does not appear (section 247) or upon withdrawal of the complaint by the complainant (section 248), or upon the Public Prosecutor withdrawing from the prosecution (section 494).
In warrant-cases tried by a Magistrate, the accused is to be “discharged” where no case is made out and so no charge need be drawn (section 253) or the Public Prosecutor withdraws from the prosecution before a charge is framed (section 494); he is to be “acquitted” if the Magistrate finds him not guilty after a charge, has been drawn (section 258) or the Public Prosecutor withdraws from prosecution (section 494) after the framing of the charge. Similarly also in sessions cases, the legislature has carefully provided when an order terminating proceedings is to have the effect of a “discharge” and when it will operate as an ‘acquittal’; see sections 209, 213, 305, 307, 333 and 494. Then we find that express provisions are made for the setting aside of orders of discharge (see section 436, 437, 438 and 439) and of acquittal either under section 417 or under the general powers of revision of the High Court (section 439). All this leaves no room for doubt that the legislature intended that a person once ‘acquitted’ shall not be liable to be prosecuted for the same offence so long as the acquittal is not set aside by the High Court. Even in cases of discharge it has been ruled that no fresh proceedings can be had with respect to the same matter unless the order has been first set aside as provided for in the Criminal Procedure Code. It is suggested in the judgment of Ayeling and Napier, JJ., in Re Kotayya that it does not follow from their construction of section 403 that an order of acquittal when there has been no decision on the merits, such as for instance an acquittal under section 247, would be nugatory, but so far as I can find, they do not point out nor can I see for myself what other effect it can have if it is to be no bar to further proceedings for the same offence.
Not only do the provisions of section 403 itself clearly imply that every order of acquittal so long as it is in force is a bar to further proceedings except in the circumstances specified in the section itself, but I do not think that the words of sub-section (1) necessarily deny that effect to an order of acquittal under section 494 or section 247. In summons-cases the ‘trial’ commences as soon as the Magistrate has taken cognizance of the matter and issued process. The mere fact that Chapter XX is headed ‘Of the trial of summons-cases by Magistrates' and that section 242 lays down that the first thing that a Magistrate has to do when the accused appears or is brought before him is to ask him to show cause why be should not be convicted, does not indicate that the ‘trial’ did not commence at an earlier stage within the meaning of the Code. In fact Chapter XVII shows that the proceedings before the Magistrate commence with the issue of process, and that the draftsman did not think of distinguishing between ‘commencement of proceedings’ and ‘commencement of trial,’ will be apparent from the way both the phrases are used in the marginal notes of section 271 and in the heading. The word ‘tried’ or ‘trial’ has not been defined anywhere. If the trial of a summons-case commences as soon as the process is issued, is there any good reason for saying that an order of acquittal would not come within the meaning of sub-section (1) of section 403, unless it was passed at a particular stage? It seems to be conceded that if the accused on being questioned under section 242 denied that he committed the offence and he is acquitted, then sub-section (1) of section 403 would apply. But such an order may be made without any decision on the merits, on the ground of absence of the complainant (section 247) or withdrawal from prosecution (section 248 or section 494). It would follow therefore that section 403, sub-section (1) does not require that there should have been a finding on evidence that the accused is not guilty, and if it is not correct to say that in summons-oases proceedings commence only after the accused has been questioned under section 242, it seems to me that the only possible meaning we can give to the words ‘who has once been tried’ is ‘against whom proceedings have been commenced in Court, i.e, against whom the Court has taken cognizance of an offence and issued process.’ On comparing sub-section (1) with the sub-sections (2) and (4) it is clear that the draftsman intended to assign the same scope to the phrase in question in sub-section (1) as to the phrase ‘a person convicted or acquitted,’ in sub-sections (2) and (4) so far as this matter is concerned, though it was not a happy idea of his to use different expressions to signify the same thing. I think that if we are not to frustrate the clear intentions of the legislature we must not construe the words ‘who has once been tried’ in sub-section (1) in any sense other than what I have suggested.
The decided cases so far as they go, support the view of the law which I expressed in In re Guggilapu Paddaya of Palakot. One important case which was not then brought to my notice is Queen-Empress v. Sivarama. There it was held by Kern AN and Wilkinson, JJ., that a second charge for the same offence against an accused person who was erroneously ‘discharged,’ but who ought to have been ‘acquitted’ on withdrawal by the Public Prosecutor from the prosecution under section 494, Criminal Procedure Code, at the Court of Session, was bad. If a narrow meaning were to be given to the word ‘tried’ in section 403, it could not be said that the ‘trial’ had commenced at the date of withdrawal, because up to commitment the proceedings are described in the Criminal Procedure Code as ‘enquiry’ and the word ‘trial’ is used only in connection with proceedings after commitment. The Public Prosecutor withdrew from the prosecution before any charge was framed in the Sessions Court, according to the practice then obtaining. This makes it clear that the charge framed by the Committing Magistrate, could not have been read to the accused and he could not have answered to any charge in the Sessions Court, when the Public Prosecutor withdrew on the ground, that the sanction on which the prosecution was based was bad. The ruling in Suraiya Sastri v. Venkata Rao, related to a summons-ease and it was held there that since the accused had appeared and answered to the charge, apparently meaning that he had been questioned under section 242, Criminal Procedure Code, he had been ‘tried’ within the meaning of section 403, but it was not laid down that if he had not appeared and been questioned, section 403 would not apply. In Panchu Singh Alias Punchanan Singh… v. Umor Mahomed Sheikh…Opposite Party.(3) an order of ‘dismissal’ in a summons-case under section 247, Criminal Procedure Code, with respect to the case of an accused person who did not appear, was treated as a bar to the revival of the charge against him. The two cases—Bishun Das Ghosh v. The King-Emperor(4) and Kedar Nath Biswas v. Adhin Manji(5)—it may be said, do not specifically deal with the question under consideration, because it is not stated that the fresh proceedings were quashed on the ground that section 403, Criminal Procedure Code, applied. The ground of the decisions however, was that the acquittal of persons other than petitioners on the same allegations had not been set aside in accordance with the law.
I do not propose to discuss the provisions of English law relating to ‘autrefois acquit’ as the system of Criminal Procedure in this country is obviously so different from that of England that to draw any sort of inference from the state of law on the subject in England, where no such clear distinctions exist between different kinds of orders terminating proceedings and which does not provide similar measures for rectifying wrong orders of acquittal and discharge, would to my mind be only misleading.
I therefore agree with the District Magistrate that the convicton and sentence under section 447 of the Indian Penal Code are bad in law and should be set aside.
My learned brother holds a different view of the law. The paper will therefore be placed before his Lordship the Chief Justice for such orders as to the disposal of the case as he may think fit to pass. I may mention that as the question involved is one of importance, it is desirable, in my opinion, that it should be decided by a Full Bench.
Napier, J.:— I adhere to the opinion expressed by me in Re Kotayya, that it is impossible to treat the words ‘once been tried by a Court of competent jurisdiction’ in section 403, Criminal Procedure Code, as surplusage, or to apply the word ‘tried’ to a case where a man has not even been served with the summons. I have no doubt that the section is intended to reproduce what is undoubtedly the law in England, namely that to plead autrefois acquit successfully the accused must have been put in peril either before the jury or the Magistrate.
As my learned brother takes a different view the case should, I think, go before a third Judge under sections 439 and 429 of the Criminal Procedure Code, but as my learned brother thinks otherwise the matter will be laid before the Chief Justice for orders.
On this Reference,—
E.R Osborne, the Acting Public Prosecutor, or the Crown.
The accused was not represented.
This case again came on for hearing before Wallis, C.J, who made the following
Two learned Judges having differed in a Criminal Revision Case, section 439 of the Code of Criminal Procedure read with section 429 requires the case to be decided by a third Judge and precludes any further appeal under the Letters Patent or any reference to a Full Bench under the rules of the Court.
With reference to this case I have arrived at the same conclusion as Mr. Justice Abdor Rahim
If sections 403 and 494 of the Code of Criminal Procedure had been originally enacted at one and the same time, I should find it very difficult to come to that conclusion. But seeing that the Code of Criminal Procedure, which is founded on the English Law of Criminal Procedure, has been repeatedly modified in the successive Codes of 1861, 1872, 1882 and 1898, when an apparent conflict arises between what would appear to be the intention of the legislature in one section and what would appear to be its intention in another section, the best method of ascertaining what the intention of the legislature really is, appears to me to be to examine what is the English rule upon the subject and how far that rule has been adopted and what modifications have been subsequently introduced in the successive Codes.
Now in English Law a plea of autrefois acquit or convict can only be raised in bar of subsequent proceeding when the conviction or acquittal has been for the same offence in a trial had before a Court of competent jurisdiction. The Attorney-General at any stage of a criminal prosecution may enter a nolle prosequi and bring the proceedings to an end. But that does not bar fresh proceedings against the accused. Consequently in England when the prosecution desire not to go on with the case the practice is not to tender further evidence and for the Judge then to direct the jury to acquit. That rule of English Law was embodied in the Code of Criminal Procedure of 1861 in section 55 as follows:
“A person who has once been tried for an offence and convicted or acquitted of such offence, shall not be liable to be tried again for the same offence, words which with certain explanations are still retained in section 403 of the present Code.
Under that Code Public Prosecutors were directed by the Calcutta Court not to withdraw the graver charge and proceed upon the lesser charge because such a course would have the effect of depriving the accused of the benefit of acquittal on the graver charge. (5 Sutherland's Criminal Letters, 4.) Then came the Code of 1872, section 61:
“A Public Prosecutor may with the consent of the Court withdraw any charge against any person in any case of which he is in charge; and upon such withdrawal, if it is made whilst the case is under inquiry, the accused person shall be discharged. If it is made when he is under trial, the accused person shall be acquitted.”
This was an entirely new departure because it entitled the accused to an acquittal by statute on the withdrawal by the Public Prosecutor and without any reference to the evidence at the trial. It has never been doubted that when the Public Prosecutor withdraws under this section in course of trial and the accused is acquitted he cannot be subsequently charged for the same offence. Yet, it seems difficult to bring such an acquittal within the language of section 460 of that Code (now section 403) and say that he is a person who has been “tried” for an offence and convicted or acquitted. Supposing the Public Prosecutor to intervene immediately after the case is taken up by the Sessions Judge and to withdraw and the accused then to be acquitted, I find great difficulty in saying that the accused has been “tried” and acquitted within the meaning of section 403 of the present Code. It seems to me that in section 61 of the Act of 1872 the legislature introduced a fresh form of statutory acquittal under that section which was intended to have the same operation as an acquittal in accordance with the English rule under section 460 (now section 403).
So much for the Code of 1872. It was only in the Code of 1882 that the alteration was made which has given rise to the present case. Section 494 dealing with the withdrawal by the Public Prosecutor, provided that “if the withdrawal is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted.”
The reference in the latter part was clearly to summons-cases which deal with more trivial offences and, it seems to me, the intention of the legislature was that the withdrawal by the Public Prosecutor at any stage in those trivial cases was to have the same effect as his withdrawal under the previous part of that section, that is to say, that there was to be a final bar of fresh proceedings.
A similar change was introduced as regards this class of cases into what is now section 247 of the Code, as regards non-appearance of the complainant in a summons-case.
In the Code up to that time such failure to appear by the complainant had merely led to a dismissal of the complaint. But in 1882 to make the law more stringent it was provided, as it still is, that on the non-appearance of the complainant the Magistrate might acquit the accused unless he chose be adjourn. Here again, I think that the intention of the legislature was that the acquittal should operate as a final bar of further proceedings. The history of the legislation shows, to my mind, a distinction between what I may call the law as to the common law plea of autrefois acquit reproduced in section 403 of the Code, and the statutory acquittals which have been introduced in sections 494, 247 and 345.
It has not been suggested in this case that the withdrawal from the prosecution by the Public Prosecutor was irregular and in these circumstances I agree with the conclusion arrived at by Mr. Justice Abdur Rahim that the conviction and sentence are bad in law and should be set aside.
S.V