K.S. Ranganathan vs Rangaswami alias Chinnappan Muthiriar and Others

K.N. Mudaliar, J.—The complainant is the Petitioner. He seeks to revise an order of the learned Sub-Magistrate upholding that the trial of the Respondents-accused was barred u/s 403 Code of Criminal Procedure.

Briefly the facts are: In C.C. No. 1989 of 1966 on the file of the Sub-Magistrate, Kulitalal, the Petitioner prayed for an endorsement of the complaint to the Inspector of Police Kulitalal, u/s 202 Code of Criminal Procedure. He did not seek any relief from the court. But the learned Sub-Magistrate took the case on file u/s 447, I. P. C. and ordered issue of summons to the Respondent-accused returnable on 8th November, 1966. On 8th November, 1966, the Petitioner gave a petition praying for permission for withdrawing the complaint with liberty to take separate proceedings subsequently. The permission was granted and the Respondent who did not appear before the court were acquitted u/s 248 Code of Criminal Procedure.

On the next day the Petitioner gave a complaint for registration by the police. The police filed charge sheet on 27th June, 1967. The case is C.C No. 999 of 1967, before the Sub Magistrate Kulitalal. Subsequently the fifth Respondent filed an application Cri. M. P. No. 680 of 1967 with a prayer that the case may be transferred to the file of the learned Sub-Magistrate No. 3 Tiruchirapalli. Ultimately, the Sub-Magistrate, No. 3, Thiruchi-rapalli, held that the Respondents-accused 1, accused 4 to 6 were entitled to the benefit of the rule of autre fois acquit and they were acquitted u/s 403 Code of Criminal Procedure.

The complainent-Petitioner is aggrieved by this order and he seeks to revise the said order before this Court.

The offence u/s 447, I.P.C. is punishable with imprisonment for three months or with and fine of Rs. 500 or with both. Summons procedure has got to be followed in regard to this offence. It is brought to my notice by the learned Public Prosecutor that it is true the learned Sub Magistrate directed the issue of summons, but it is not known whether summons were really served on the accused at all. But it is patently clear that the accused did not really appear before the court. In view of the terms of Section 403 Code of Criminal Procedure, the question that falls for determination is whether in the light of the circumstances and facts of the present case, it can be held that the Respondents-accused were really ''tried'' in C, C. No. 1989 of 1966.

There is no doubt that the Petitioner gave the complaint to the police on the same facts relating to the same transaction which was the subject matter of C.C. 1989 of 1966. The accused-Respondents were acquitted u/s 248, Code of Criminal Procedure. The prayer of the Petitioner for permission to withdraw the complaint cannot certainly be construed that he did really intend that his complaint should be dismissed.

The rulings cited both by the learned Public Prosecutor and the learned Counsel for the Petitioner would fortify, in my view, the position that the commencement of the trial is the summons case would really coincide with the actual issue of notices to the accused and when the accused appears or is brought before a Magistrate. In this case no doubt there has been a direction by the Sub-Magistrate in C.C. 1989 of 1966 for the issue of notices to the accused Respondents. But it cannot be spelt out from the record whether actually the issue of notices to the accused was effectuated. In view of the reasoning found in the decision in In Re: Raja Goundan and Another, . I am inclined to hold that although the order was made u/s 248 Code of Criminal Procedure, acquitting the accused, there was really no trial in the sense that the accused were "tried". Sadasivam, J. held that it is so doubt true that the principle of autre fois acquit enacted in Section 403 Code of Criminal Procedure has been held applicable even to cases of statutory acquittal under Sections 247, 248, 345 and 494 of the Code and that the word ''tries'' or ''trial'' has not been defined anywhere and in cases tried as summons cases without framing any charge the trial might be said to commence with the issue of notices of the accused and when the accused appears or is brought before a Magistrate. In Gopal Chandra Mandal Vs. The State, Debobrata Mookerjee, J. held that u/s 246 Code of Criminal Procedure the trial is not concluded and before a final order is passed, permission is accorded to withdraw from the prosecution and the result is a statutory acquittal and that such an acquittal, however, does not operate as a bar to the fresh trial of the accused on the same facts, as Section 403 Code of Criminal Procedure, can be called in aid only when there has been a trial to a close and it is only then that the question of previous acquittal or previous conviction comes into play.

In view of the reasoning found in the above mentioned two decisions, I hold that the accused were not ''tried'' and therefore, Section 403 Code of Criminal Procedure would not avail the accused-Respondents. The order of the court below is set aside and the trial of the accused is directed to proceed expeditiously .