State by Public Prosecutor vs Nagappan

K.N. Mudaliyar, J.—These two appeals are connected and the point involved in the appeals is the same. Crl. Appeal Nos. 984 and 674 of

1970 are filed by the State against the order of the acquittal of the accused-Respondent, Nagappan in C. C. Nos. 5909 of 1969 and 11733 of

1969 on the file of the Third Presidency Magistrate, Madras, respectively.

On 7th April 1969, a charge was framed against the accused for an offence u/s 381 I.P.C. in C.C. No. 5909 of 1969. The learned trial

Magistrate passed judgment in that case as follows:

Despite several adjournments none of the witnesses were produced and the police were also absent. Even the subpoenas issued for the witnesses

were not returned and I have, therefore, to take it that the prosecution has no evidence against the accused. I, hence, find the accused not guilty

and acquit him of the charge u/s 381, I.P.C.

Strongly, the same Magistrate re-entertained the complaint by the State and framed a charge in C.C. No. 11733 of 1969 against the accused

for the same offence. Subsequently, the learned Magistrate (Thiru S. A. Sundaresan) was transferred. Ultimately, the judgment in C.C. No. 11733

of 1969 came to be written by Thiru K.S. Sankaralingam Konar on 4th March 1970. The learned trial Magistrate found the accused guilty u/s 381

I.P.C , but acquitted him on the ground that the trial was barred by S. 403 Cr. P.C. The learned trial Magistrate observed in paragraph 9 of his

judgment as follows:

To-day the accused produced a copy of the judgment in C.C. No. 5909 of 1969 against the accused. The facts in that case are the same as the

facts herein. In that case, my learned predecessor has acquitted the accused of the charge. Since the accused has been acquitted of the charge on

the prior occasion. S. 403, Crl. P. C. has come into operation ana no further trial of the accused could be heard on the same facts and charge.

Any further trial is barred by S. 403, Crl. P.C. It is surprising to note that my learned predecessor who acquitted the accused has taken it on file

again on the same facts and on the same charge. I therefore find the accused not guilty of the offence charged and acquit him.

The order of the trial Magistrate in C.C. No. 5909 of 1969 is without jurisdiction. The learned Public Prosecutor relied on the rationale found in

State of Kerala v. Aboobaker (1961) M.L.J. Crl. 123, State of Kerala v. Kunhiraman (1961) M.L.J. Crl. 330, State Vs. Nandkishore and

Another, and Sadasivan v. Rajagopalan (1970) M.L.J. Crl. 530 and rightly contended that the order of acquittal by the trial Magistrate was against

law. Again, the trial Magistrate was not acting legally, when he took on file the complaint and framed a charge against the accused for the very

same offence in C.C. No. 11733 of 1969. As a charge was framed in C.C. No. 5909 of 1969, it may be deemed that the accused was tried in

law and in that limited sense the order u/s 403, Crl. P. C. in C.C. No. 11733 of 1969 may be justified.

On the proved facts in this case and tortuous career of the trial which the accused had faced in the two successive calendar cases on the file of

the Third Presidency Magistrate, at first I was inclined to remand the case to the Court of Chief Presidency Magistrate for further enquiry and trial.

But, in view of the hardship occasioned by the two trials, I do not consider, in the interests of justice, that the appeals should be remanded for

further enquiry and trial in the court below. Accordingly, while setting aside the order of acquittal of the accused, I make no order for further

enquiry and trial. The Appeals are allowed.