J. R. CHOPRA, J. - (1.) THIS appeal against the judgment of Judicial Magistrate No. 3, Jodhpur dated July 16, 1977 raises a very short legal question regarding the applicability of s. 300 Cr. P. C.
(2.) THE facts leading to this appeal briefly stated are that the complainant Mohd. Ishaq was living in his sister's house situated at Subhash Chowk, Ratanada, Jodhpur for the past about 14 years. It is alleged that his brother Saleem and his son Safiq came to his house on December 21, 1975 and December 26,1975 and asked him to vacate the house. When he did not agree to their request, Saleem and Safiq gave beating to him, opened the lock of his house and ousted him from it on February 8, 1976. He lodged a report about this incident in the Police. After usual investigation, the Police filed a challan under s. 453 I. P. C. However, he also filed a private complaint regarding the same offence in the court of Judicial Magistrate No. 2, Jodhpur. THE case was registered against the accused-persons under ss. 323, 427 and 451 I. P. C. After summoning of the accused - persons, the case was fixed for the evidence of the complainant on October 5, 1976. THE case was registered as Private Complaint No 17 of 1976. On October 5,1976, the complainant was absent and the accused-persons alongwith their counsel were present. In the absence of the complainant, the learned Magistrate dismissed the complaint under s. 256 Cr. P. C. and acquitted the accused-persons of the offences under s. 323, 451 and 427 I. P. C. THEreafter, in the case filed on police report which was registered under. 453. I. P. C. an application was moved on behalf of the accused-persons that for the same offence they have already been acquitted by the Court of Judicial Magistrate No. 2, Jodhpur on October 5, 1976 and, therefore, this prosecution is now barred under s. 300 Cr. P. C. This application was moved at the stage when the case was fixed for prosecution evidence. THE learned Magistrate held that the second trial of the accused-persons for the same incident is barred under s. 300 Cr. P. C. as they have already been acquitted. Aggrieved against this judgement, the State has preferred this appeal. I have heard Mr. B. C. Bhansali, learned Public Prosecutor for the State and Mr. Suresh Kumbhatt, learned Amicus Curiae for the accused-respondent Saleem. I have also carefully gone through the record of the case. It was contended by the learned Public Prosecutor that s. 300 Cr. P. C. bars the second trial only when a person has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence. According to him, in this case no trial took place in the earlier proceedings but only the substance of the allegation was read over to the accused-persons. The accused persons did not plead guilty to the charges and, therefore, the case was fixed for recording of the prosecution evidence and hence the principle of autrefois acquit cannot be pressed into service. In support of his submission, he invited my attention to Venkatasubha V. Soundraraja (1) wherein the accused was discharged under s. 259 Cr. P. C. but the complainant again filed a fresh complaint. It was held that the trial is not illegal and the accused is not prejudiced by the second trial. Learned Public Prosecutor further drew my attention to Harbai V, Raja Premji (2) wherein it was observed as follows : "dismissal of complaint under s. 203 or discharge of accused under S. 259 by Magistrate is no bar for taking cognizance of a fresh complaint or a second complaint either by his successor or by any other Magistrate of the co-ordinate jurisdiction even though the order of dismissal or discharge is not set aside. The order dismissing the complaint under s. 203 Cr. P. C. or discharge of the accused under s. 259 Cr. P. C is not a final judgement and, therefore, the bar of section 403 Cr. P. C. (Old) is not applicable for entertainment of such a second complaint. No finding can be attached to an order made under s. 203 or 259 Cr. P. C. " In Dhana Reddy vs. Emperor (3), it was ruled as follows: "an order dismissing a complaint or discharging an accused person does not operate as an acquittal under s. 403 and does not bar the taking cognizance of a fresh complaint of the same offence even though the order of dismissal or discharge has not been set aside by a competent authority. " In State of W. B. Vs. United Rubber Works Ltd. (4) a petition of complaint which was filed against the accused with respect to an offence under s. 29 read with s. 32 of the Industrial Disputes Act was not entertained by the Magistrate firstly because it was not instituted with proper sanction and secondly the learned Magistrate had no jurisdiction to try the case. He, therefore, released the accused persons from the bail bonds. It was held that the order of discharge of the accused from the bail bonds was the proper order that could have been made in the circumstances of the case and that order did not amount to an acquittal so as to bar the fresh complaint. My attention was also invited to Sitaram Sao V. Sahdeva Gope (5), wherein it was held as under: "that a charge for an offence under s. 436 Penal Code could not be framed against the accused under the provisions of s. 236 Criminal P. C. nor could he be convicted for that offence under the provisions of S. 237 Criminal P. C. , when the charge was framed against him was under s. 342 of the Penal Code. He might have been charged under sec. 436 Penal Code at the trial under the provisions of sub-sec. (1) of sec. 235 Criminal P. C. Hence S. 403 Criminal P. C. was no bar to the trial of the accused for an offence under s. 436 Penal Code after he had been acquitted of the charge under S. 342 Penal Code. " It may be stated here that s. 403 Cr. P. C. (Old) is para materia with s. 300 of Criminal Procedure Code, 1973. On the strength of the above cited authorities, Mr. B. C. Bhansali, learned Public Prosecutor for the State vehemently submitted that even if the accused persons have been acquitted of the charges under s. 323, 451 and 427 I. P. C. by taking recourse to the provisions of s. 256 Cr. P. C. , s. 300 Cr. P. C. does not create any bar for the trial of the case under s. 453 I. P. C. I may state at the very outset that the above-mentioned authorities have no application to the facts and circumstances of the case in hand. Venkatasubba's case (Supra), Harbai's case (Supra) & Dhana Reddy's case (Supra) relate to the cases in which the accused-persons were discharged under the provisions of s. 259 Cr. P. C. (Old) and it has been held that the discharge of an accused or dismissal of a complaint under s. 203 Cr. P. C. (Old) does not operate as a bar to the taking of cognizance of an offence on a second complaint These are the cases in which the complaints were dismissed and the accused persons were discharged and so, these cases have no direct bearing on the facts and circumstances of the present case. In State of W. B. 's, case (Supra) even the cognizance of the case was not taken by the Magistrate because he had no jurisdiction and secondly proper authorisation for prosecution was not obtained. It was therefore, held that a second complaint with proper authorisation was not barred under the provisions of s. 403 Cr. P. C. (Old ).
(3.) IN Prematha Nath V. Saroj Ranjan (6), it was observed by their Lordships of the Supreme Court as follows: "an order of dismissal under s. 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e. g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. " Their Lordships of the Supreme Court in Mohd. Safi vs. State of West Bengal (7) have been pleased to lay down as follows : "the provisions of s. 403 are based upon the general principle of autrefois acquit recognised by the English Courts. The principle upon which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle is incorporated in Art. 20 of the Constitution. Where the accused person was not liable lawfully to be convicted at the first trial because the Court lacked jurisdiction, the defence of autrefois acquit has no application. " Sitaram Sao's case (supra) pertained to the trial of a totally different and distinct offence from the one of which the accused was acquitted in the earlier trial. It has been provided in s. 300 Cr. P. C. , itself that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence may be afterwards tried with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-s. (1) of s. 220. Thus, the section itself supports the authority of the Patna High Court (Sitaram Sao's case Supra ). IN that case, there was no trial for the offence under s. 436 I. P. C, which could be tried only by a Court of Sessions and, therefore, it was held that even if the accused was acquitted of the offence under s. 342 I. P. C, he can again be prosecuted on a fresh complaint for the offence under s. 436 I. P. C. IN the case on hand, the occurrence is one and the same. The complainant availed two remedies at the same time to redress his grievance against his brother and nephew. Firstly, he lodged a F. I. R. in the Police and secondly, he filed a private complaint in the Court. The crux of the offence was that he was beaten and has been ousted from his house and his belongings have been thrown away. On this allegation, the learned Judicial Magistrate registered a case under ss. 323, 451 and 427 I. P. C. However, the Police challaned the case under s. 453 I. P. C. IN the case filed on a private complaint, the complainant was absent on October 5, 1976 and, therefore, the accused-persons were acquitted of the offence under ss. 323,451 and 427 I. P. C because all these three offences were required to be tried in a summons case trial as they were not punishable with an imprisonment for over a period of 2 years. Now till this acquittal remains in force and is not set aside by a superior court, s. 300 Cr. PC. specifically bars the trial of the accused-persons on the same allegation in a different case. The cases of discharge and dismissal of complaints are to be distinguished from acquittal of an accused in summons case trial. Much stress has been laid on the fact that s. 300 Cr. P. C. provides that to press into service the principle of autrefois acquit, the accused must have been tried by a court of competent jurisdiction and after he is either convicted or acquitted, it bars the second trial. Mr. B. C. Bhansali, learned Public Prosecutor laid great emphasis on the words used in s. 300 Cr. P. C. 'the trial by a court of competent jurisdiction'. He submitted that the use of these words are not superfluous. Simply because the complainant remained absent on a particular date before the conclusion of the trial, the acquittal recorded is not after trial. IN other words, he meant to convey that the acquittal to be in force must be one which has been obtained after a full trial from a competent court. I am afraid, I cannot subscribe to this view. There was a conflict of opinion among the Judges of the Madras High Court as to when the trial in summons case begins in private complaint cases ? In Kotayya vs. Venkayya (8 a Division Bench of the Madras High Court took the view that the trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused under section 242 Cr. P. C. However, Abdul Rahim, J. in Re Dudekula Lal Sahib (9) took a different view that in summons cases the trial commences as soon as the Magistrate has taken cognizance of the matter and issued process. He observed as follows : "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. " In Re Dudekulalal Sahib's case (supra), Napier, J. took a different view and observed as follows : "that it is impossible to treat the words 'once been tried by a Court of competent jurisdiction' in section 403, Cr. P. C. as surplusage, or to apply the word 'tried' to a case where a man has not even been served with the summons. 1 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. " However, Re Dudekulalal Sahib's case (supra) was referred to Sir John Wallis, C. J , who agreed with the view of Abdul Rahim, J. and held that in summons cases the trial commences as soon as the Magistrate has taken cognizance of the matter and issued the process. Re Dudekulalal Sahib's case (supra) was noticed in Shankar vs. Datta-traya (10), wherein a Division Bench of the Bombay High Court observed as follows : "under section 247, it is not necessary that the summons should be served on the accused or that he should be present in the Court before an order of acquittal can be passed in his favour on account of the absence of the complainant. The word 'tried' in section 403 does not necessarily mean tried favour on account of the absence of the complainant. The word 'tried' in section 403 does not necessarily mean tried on merits and such acquittal bars fresh trial. " It was further observed as under : "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, Criminal P. C. or a withdrawal of the complaint by the public Prosecutor under section 494, Criminal P. C. 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. " ". . . . . . . . . . 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. " The Division Bench of the Bombay High Court also noticed a decision of the Patna High Court in Kiran Sarkar V. Emperor (11), and quoted with approval the following: "in Kiran Sarkar vs. Emperor (6), it was held by the Patna High Court that the important matter for an order under s. 247 Cr. P. C, 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 S. 247 is a final order of the acquittal which operates as bar under s. 403 of the Code of the trial of the accused for the same offence. " After discussing number of rulings, Patkar, J. speaking for the Court observed of under: "the intention of the legislature is quite clear for it appears from S. 205, Act 10 of 1872, that the Magistrate could only dismiss the complaint under the Criminal Procedure Code of 1872 where as 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 28th April bars a fresh trial of the accused on the same facts under s. 403. Mr. B. C. Bhansali, learned Public Prosecutor drew my attention to a Full Bench decision of the Madras High Court reported in Re-Ponnuswami Goundan (12), wherein it was laid down: "where a complaint is dismissed by a Sub Divisional Magistrate under s. 203 of the Criminal Procedure Code, a Sub-Magistrate has jurisdiction to entertain in charge-sheet founded on a subsequent complaint, the order of dismissal not having been set aside. " The Full Bench placed reliance on decision of its own Court in Emperor vs. Chinna Kalippa Gounden (13 ). In Re Ponnuswami Gounden's case (supra), it was observed as under- "the sec. 403 begins by laying down that a man who has been tried for an offence and convicted or acquitted of it shall not be liable to be tried again for the same offence and it ends with the explanation that the dismissal of a complaint is not an acquittal for the purpose of the section. That however, is not all; there is in regard to an acquittal a qualification which is not to be found in the explanation. It is that an acquittal to be a bar to a second trial must still remain in force. In regard to the dismissal of a complaint, it is not stated that the order of dismissal is a bar until it is set aside. " The Full Bench of the Madras High Court has, therefore, made a distinction between the dismissal of a complaint and acquittal remaining in force. If an acquittal has been recorded by a Court of competent jurisdiction whether after trial or under s. 247 Cr. P. C. (Old) and that acquittal has remained in force and is not set aside then the second complaint is barred. I have already quoted two Supreme Court authorities in support of the view that a dismissal of a complaint and discharge of the accused does not bar fresh trial although cognizance on the second complaint on the same facts should be taken in very exceptional circumstances mentioned therein above but that principle cannot be applied to the cases of acquittal recorded under s. 247 Cr. P. C. (Old) till that acquittal remains in force and is not set aside by a competent superior court. ;