Indra Devi vs Dil Sukh and another

W. Broome, J.—This criminal revision is directed against an order of a first class Magistrate of Agra dismissing a complaint u/s s. 323, 504 and 506 IPC on the ground that it was barred by Section 403 CrPC.

The first complaint which the applicant Mst. Indra Devi had filed regarding the offences in question was dismissed by Sri R.C. Dubey, first class Magistrate, on 13-10-1958, because the complainant failed to appear in his court on that date. The complaint actually disclosed no offences u/s s 504 and 506 IPC and the accused had been summoned in respect of the offence u/s 323 IPC only, with the result that the case was tried as a summons case. The order of dismissal passed on 13-10-58, therefore, was u/s 247 CrPC, and its effect was that the accused stood acquitted. The complainant had good ground for having this order of dismissal set aside, for the reason why she had failed to appear in the court was that the case had been transferred from one court to another without proper information having been given to her; but unfortunately, instead of taking steps to have the order of 13-10-58 quashed she merely ignored it and filed a fresh complaint against the accused on the same facts, with the result that Sri N.L. Kakkar, first class Magistrate, who was trying this second complaint, dismissed it on 29-10-58 on the ground that it was barred in view of the provisions of Section 403 CrPC.

The contention of Learned Counsel for the applicant is that Section 403 Code of Criminal Procedure is not applicable in the circumstances of this case and that an order of acquittal passed u/s 247 Code of Criminal Procedure without any decision being given on merits does not bar another trial on the same facts. He points out that the words used in Section 403 Code of Criminal Procedure are: "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall ... not be liable to be tried again for the same offence;" and he argues that the use of the word "tried" suggests that there must have been a regular trial, involving a decision on merits, before the first order of acquittal can operate as a bar to a subsequent trial for the same offence.

The only decision which Learned Counsel for the applicant has been able to cite in support of his contention, however, is the case of Bezwada Kottyya and v. Konathalapalli Venkayyaa AIR 1918 Mad. 212 in which the Madras High Court held:

S. 403 only bars the retrial of a person who has once been tried and convicted or acquitted and in this case it does not appear that the accused were tried on the first complaint. The trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused u/s 242 Code of Criminal Procedure and there is nothing on the record to indicate that this was done ... No trial having even commenced on the first complaint, Section 403 does not bar the court from taking cognizance of the second complaint.

In the course of their decision the learned Judges who decided this case remarked:

In our opinion some meaning should be attached to the word "tried" in the early part of Section 403(1). It should not be treated as mere surplusage.

Reliance was also placed by the learned Judge on the fact that under English law an acquittal on merits is necessary to entitle a person to plead "aut(sic)efois acquit"

The consensus of judicial opinion however is clearly against the view expressed in this ruling. In the case of Dulla and others v. King Emperor AIR 1923 All. 360 a learned Judge of this Court held (unfortunately without any discussion of the problems of interpretation that arise in this connection) that an accused once acquitted u/s 247 Code of Criminal Procedure cannot be tried again for the same offence on the same facts, by virtue of the provisions of Section 403 CrPC. In Shanker Dattatraya Vaze v. Dattattaya Sadashiv Tendulkar AIR 1929 Bom. 408, the Bombay High Court remarked that "the word ''tried in Section 403 does not necessarily mean tried on merits" and held that an accused who is acquitted u/s 247 Code of Criminal Procedure must be deemed to have been ''tried'', within the meaning of Section 403, the trial having commenced as soon as the Magistrate took cognizance u/s 190. Similar views have been expressed by the Calcutta High Court in Suku Ram Koch and Others Vs. Krishna Deb Sarma, and again in Kanai Hizra and Others Vs. Golap Hizra, , The Patna High Court in Ram Mahto and others v. Emperor AIR 1921 Pat. 311 and Rasik Tatma Vs. Bhagwat Tanti, , and the Nagpur High Court in AIR 1927 388 (Nagpur) have also taken the same stand and have held that an acquittal u/s 247 Code of Criminal Procedure bars a subsequent trial for the same offence.

It is further to be noted that the Madras High Court itself, in its later decisions, has refused to follow the ruling in Bazwada Kotaa''s case AIR 1918 Mad. 212 vide In Re: Dudekula Lal Sahib, and Bobba Kutumbayya and Others Vs. Ketavarapu Lakshminarasimha Rao,

As pointed out in In Re: Dudekula Lal Sahib, , no inference can properly be drawn from the English requirements for a plea of ''autrefois acquit'', as the system of Criminal Procedure in this country is so different from that of England and there appears to be no justification for the view expressed in Bezwada Kottayya''s case AIR 1918 Mad. 212 that the trial commences only when the particulars of the charge are stated to the accused. Actually the trial begins as soon as the Magistrate takes cognizance of the offence and issues process; and since, when an accused is acquitted u/s 247, CrPC, process has already been issued, he must be deemed to have been duly ''tried'', as required by Section 403(1). Moreover the explanation appended to S. 403, which shows what orders are not to be taken as amount to acquittal for the purposes of this section, makes no mention of orders passed u/s 247, and it may legitimately be inferred the before that such orders do amount to acquittal as required by Section 403. Indeed to hold otherwise would mean that an order passed u/s 247 CrPC, which expressly states that the Magistrate ''shall acquit the accused, would amount to nothing more than a mere discharge; and if that had been intended, the Legislature would surely have used to word ''discharge'' instead.

My conclusion is that the contention of Learned Counsel for the applicant is without force and that an acquittal u/s 247 is a definite bar to a fresh trial on the same facts for the same offence.

In the present instance the order passed on 13-10-58 dismissing the first complaint u/s 247 Code of Criminal Procedure was therefore a valid acquittal, which by virtue of Section 403 Code of Criminal Procedure bars a fresh trial for the same offence, so long as it remains in force and is not set aside. The Petitioner should have taken steps to have that order quashed, but did not. She cannot hope to gain her object by assailing the subsequent order of 29-10-58, by which her second complaint was dismissed, for that order was perfectly proper and legal. This revision application accordingly fails and is dismissed.

Revision dismissed