In Re: Sinnu Gowndan and Another

Miller, J.—As the Criminal Procedure Code does not permit a Magistrate to review his judgment in the light of evidence subsequently

obtained or to re-admit to file a case in which the accused has been acquitted u/s 247 owing to the absence of the complainant, even if good

reasons shewn for his non-appearance, I should hesitate without further consideration to hold that the legislature intended to permit this Court in

Appeal or revision to set aside an acquittal on the ground that fresh evidence is available which could not be produced at the trial, or on the ground

that a complainant has shown sufficient reason for the failure to appear and prosecute his complaint, before the Magistrate in a summons case. But

in the present case we must take it that the acquittal of the accused u/s 247 was procured by his own trick : he himself is responsible for the

complainant''s failure to appear. The order was, we may say, obtained by a fraud on the court and though even in these circumstances the Code

does not permit the court which made the order, to vacate it on proof of the fraud interference by this Court may be a proper exercise of our

powers in revision, or possibly in appeal, to avoid a miscarriage of justice.

We have not referred to any case in England in which certiorari has been had to quash an order of acquittal made by an inferior court for fraud

in the person procuring the order. There is a case R. v. Unwin (1839) 7 Dowl. 578 (referred to in Archibold''s Criminal Pleadings 23rd Edition

Page 132. 10 Halsbury''s Laws of England page 197 Foot Note) which seems to have been something like the present case and in which certiorari

was refused, but I have not been able to see the report of that decision. But we have the authority of Archibold''s Criminal Pleadings (23rd Edition

page 292) for saying that a new trial after acquittal in a case of misdemeanour would be granted if the verdict had been obtained by irregularities

committed by the defendant himself and though no case is there cited in which a new trial has actually been allowed on these grounds, the authority

of Archibold''s Treatise is so high that it is not unsafe to accept it as correctly stating the principle on which the courts would have acted in England

in former days.

In India we have power to revise an order which is improper Section 435 of the Code of Criminal Procedure) and an order, though strictly in

accordance with the law as in the present case, may, I think be said to be improper if it was procured by the fraud or trick of the party asking for it

and would not have been made but for that fraud or trick. The order before us is one which but for the accused''s deceit would not have been

made in the circumstances, and so may be said to be an improper order though the Magistrate''s action was strictly correct.

Our powers in appeal are not defined by the code, further than this, that an appeal may lie on a matter of fact as well as on a matter of law

except in a case tried by a jury (Sea 418).

The Code does not expressly state whether these matters are matters appearing upon the record, that is, matters, which the inferior Court has or

might have determined, or whether we are at liberty to admit an appeal on some extraneous matter which ought to have affected the decision had it

been known at the time of the trial-but which was not before the inferior Court.

I have not found a case in any of the High Courts which decides the point. In Queen Empress v. Prag Dat ILR (1898) A. 459 the learned

Judges state as one of the requirements of an appeal that the ground for interference should be apparent on the record, but it cannot be said that

they were deciding the present point.

But there is nothing in the Code of Criminal Procedure to suggest that so far as the right of appeal is concerned there is any difference between

the case of an appeal from a conviction or from an acquittal, and I should not like to hold that an appeal from a conviction could not be entertained

if based on the concealment of a material fact from the Court which conducted the trial. I agree therefore that in this case the Local Government

might have directed the filing of an appeal against the acquittal and that being so I agree also that we ought to refuse to interfere on the District

Magistrate''s report of the Case.

The District Magistrate is, no doubt not the party entitled to appeal from an acquittal but his report to the High Court is intended to move the

Court to act u/s 439 of the Criminal Procedure Code, that is, to act as a Court of revision and though it is made at the instance of the complainant

it contains the District Magistrate''s presentation of the case and it seems to me that to entertain proceedings by way of revision on a District

Magistrate''s report in a case where an appeal would lie from an acquittal is contrary to the spirit if not to the letter of Sub-section 5 of Section 489

of the Criminal Procedure Code.

Spencer, J.

In this case the complainant preferred a complaint of mischief u/s 426 Indian Penal Code on June 4th against two individuals ; process was

issued against them and the complainant was informed of the date of hearing in person. On June 23rd, the date fixed for the trial, the Magistrate

acquitted the accused u/s 247 Criminal Procedure Code owing to the complainant not being present in Court when the case was called on. It

subsequently transpired that the complainant had been kept out of the way by the action of the accused in getting a constable to arrest him on a

false charge of committing nuisance after he had come to Gingee where the Magistrate''s Court was situated, (see the judgment in C.C. No. 638 of

1913 on the file of the 2nd Class Magistrate of Gingee). Under these circumstances the District Magistrate has u/s 438 referred the case to the

High Court for setting aside the order of acquittal and fordirecting a new trial.

The question for our decision is whether, assuming that the 2nd Class Magistrate would have exercised his discretion differently by adjourning

the hearing to another day had he been aware of the cause of the complainant''s failure to appear, this Court acting as a Court of Revision will set

aside the acquittal and order a fresh trial.

Upon the materials before him when the order u/s 247 was passed the Magistrate''s procedure was strictly proper and in accordance with law.

This Section declares that the Magistrate shall acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to

some other day. Such an acquittal after the accused has appeared and answered to the charge will operate as a bar to his being again tried for the

same offence as he is a person ""tried"" by a Court within the meaning and for the purpose of Section 403 C P.C. Suraiya Sastri v. Venkata Rao

(1886) Weir 11 p. 457. The Magistrate has no power to revive the proceedings, as there is no provision in the Code of Criminal Procedure

resembling Order 9 Rule 4 of the CPC by which a case can be restored to file by the Court which dismissed it; nor can the District Magistrate

order a re-hearing Narayana Aiyar v. Janaki Ammal (188l) Weir 11 P. 308 Rangasami v. Narasimhalu ILR (1888) M. 213 and Empress v.

Hardee Singh and other a (1891) 11 A.W.N.P. 120.

Coming next to a consideration of what are the powers of the High Court in such a matter, I think there can be hardly any doubt that if this

matter came up for determination in a court governed entirely by English law the answer to the question whether the acquittal could be interfered

with would be in the negative.

In English Courts the maxim of Nemo bis vexari debet is given full scope. It has been repeatedly held in England that if an accused person has

been once tried and acquitted upon the merits by a court of competent jurisdiction so as to have been put in peril of conviction he cannot again be

tried upon the same charge, but if charged he can successfully plead autrefois acquit. It is true that in R. v. Scaife (1851) 17 Q.B. 238 S.C. 117

E.R. 1271 a new trial was ordered in a case where one of the accused indicted for felony procured the absence of a witness whose evidence

taken before a Magistrate was read against himself and others jointly tried with him.

But R. v. Scaife (1851) 17 Q.B. 288 was dissented from in later cases, R. v. Bertrand (1867) L.R. 1 P.C.P. 520 and R. v. Murphy (1865)

L.R. 2 P.C 535.

In England the courts have resolutely set their face against granting new trials after acquittals for murder and felony on the ground of

misreception of evidence, misdirection or that the verdict was against the evidence and the same principle has been extended to misdemeanours

also. See R. v. Duncan (1881) 7 Q.B.D. 198.

It has been further held that acquittals and dismissals cannot be quashed by certiorari even though the Justices who tried the cases were

disqualified by interest or bias R. v. Galway Justices (1906) 2 W.R. 419 and R. v. Antrim justices (1895) 2 Ir. Rep. 603. The latest case on the

point is that of Rex v. Simpson and Ors. (1915) 136 L.T. 10 Exparte Smiths on K.B.D. October 23, 1913 reported in the Law Journal of

November 8th at p. 646 and the Law Times Vol. 136 p. 10 : in which the doctrine has been stretched to the length of holding that a dismissal of

information could not be disturbed even though one of five justices who acquitted the accused was disqualified and though the court might be said

to that extent not to be a competent tribunal.

In India however matters stand upon a different footing. Here appeals against orders of acquittal are allowed by Section 417 Criminal

Procedure Code, a provision of law which is quite aline to the principles upon which English Courts administer the law against criminals. We have

also Section 403 which prohibits a second trial for the same offence provided that the conviction or acquittal at the first trial remains in force. If the

conviction or acquittal is set aside by a court of competent jurisdiction, it follows that the accused cannot successfully plead the original decision in

bar of further proceedings.

The safeguard of the subject consists in the fact that no appeal against an acquittal will lie except at the instance of Government and that

Government only exercise this power in cases in which there has been in their opinion a substantial failure of justice.

It appears prima facie that there was a failure of justice in the present case if the complainant was prevented from prosecuting his complaint

and obtaining the redress that the criminal law allows owing to a circumstance beyond his control, namely his wrongful arrest and detention ones

false charge a fact which the court which tried the case of nuisance found to be true. Butthis was a circumstance which was not in evidence at the

time when the court passed the order of acquittal u/s 247 Crl. P.C., on the complaint of mischief. Of course he may have his remedy in an action in

tort for malicious arrest against the constable, or against the accused if he instigated the constable, or he may proceed criminally against them, if so

advised, for offences under Sections 211 and 341 I.P.C. but he will still have a grievance that his complaint of mischief has not been heard.

Now there is nothing in the language of Section 417 Crl. P.C. to limit appeals against acquittals to cases in which courts have owing to some

error of law or misappreciation of evidence come to a wrong decision on the evidence before them.

It has been held that the legislature has allowed by this section an appeal by the Local Government in the widest terms and without any

limitation whatever. See Empress of India v. Judoonath Gangooly ILR (1977) C.273 and that there is no distinction in the Code between the right

of appeal against an acquittal and the right of appeal against a conviction, both being governed by the same rules and being subject to the same

limitations; see The Queen Empress v. Bibhuti Bhusan Bit ILR (1890) C. 485, Queen Empress Prag Dut ILR (1898) All. 459 and King Emperor

v. Chatter Singh and Ors. (1904) 7 Punj 39 .

Section 428 Crl. P.C. allows additional evidence to be admitted in appeals against acquittals as well as in appeals against convictions, although

cases in which this power is exercised will naturally be rare.

I would therefore be prepared to set aside the order of acquittal in this case and order a retrial, if the matter had come before the court by way

of appeal presented by the Local Government u/s 417.

But in revision it has always been regarded as a sound rule of practice not to interfere when there is no error in law or on the face of the record

Emperor v. Sakharam 4 B.L.R. p. 686, Kashab Chander Roy v. Akkil Metoy ILR (1895) C. 998 ; also Emperor v. Tirth Das Newalram (1913)

CLR 1 p.15 and not to interfere in cases of acquittal in which Government might have appealed u/s 417 Cr. P.C. but has not done so. See In the

matter of Aurokiam ILR (1878) M. 38 also Thandavan v. Perianna ILR (1891) M. 363 Emperor v. Madar Baksha ILR (1902) A. 128 and

Empress v. Miyaj Ahmed ILR (1878) B. 150. In the former respect the Courts in India conform to the practice of the English Courts when dealing

with writs of certiorari and the now obsolete writs of error; for the latter practice there is now the authority of Clause 5 of Section 439 Crl. P.C.

In Queen Empress v. Hardee Singh and Ors. (1891) 11 AWN 120 Straight J. acting in revision ordered a new trial upon the reference by the

Sessions Judge when the accused had been acquitted u/s 247 on a complaint of mischief and assault owing to the complainant''s absence through

fever, but this is the only reported instance that I have been able to discover of a High Court in exercise of their revisional powers setting aside an

order of acquittal upon facts not before the Court that tried the case. Even that instance was prior to the introduction of Clause 5 of Section 439

by Act V of 1898.

I therefore consider that our proper course is to refuse to interfere with the acquittal on the District Magistrate''s reference.