1. This is a reference made by the learned Sessions Judge, North Kanara, Karwar, in Criminal Revision Application No. 9 of 1961.
2. The facts and circumstances leading to this reference may shortly be stated as follows:
There appear to be two parties amongst the Navayat Muslims at Bhatkal. On the 7th of June 1958, one Sri Abdul Hassan Fakkibhav wanted to celebrate three marriages in his house. This was not liked by the members of the first party as the Kazi of the second party was to solemnize the marriages. Therefore, to prevent the said marriages, about 400 to 500 persons belonging to the first party gathered in front of his house and tried to create trouble. Ultimately, there was a rioting and the Police bad to open fire. On the 8th at June 7958, the said Abdul Hassan lodged a complaint at Bhatkal Police station wherein he gave the names of 68 persons as the accused. The Bhatkal Police registered a case for offences punishable under Sections 147, 149, 457, 395, 152, and 427 I.P.C.
After investigates, the Circle Police Officer, Sirsi, submitted what is called 'A' summary report to the Judicial Magistrate, First Class, Bhathal, on 7th December 1958 about which I shall dealin some detail later on. However, the police did not seem to have moved the Magistrate early to pass the necessary order on that report. The Magistrate passed an order thereon on the and of May 1959 holding that there was no sufficient evidence against the accused for sending them for trial. Consequently instead of granting 'A' summary discharge, he discharged the accused under Sub-section (2) of Section 251-A Cr. P. C.
3. Against the said order of discharge, both the complainant and the State preferred two revision applications in the Court of the Sessions Judge of North Kanara at Karwar. The learned Sessions Judge disposed of both those applications by, a common judgment holding that he could not act either under Section 436 or 438 Cr. P. C., and consequently dismissed them by his order dated 22nd of July 1960. This order was not taken to the High Court and thus became final.
Thereafter the State filed a fresh criminal case viz. C. C, 438/60 in the Court of the Judicial Magistrate, First Class,' Bhatkal, against 32 persons on the same facts and for the same offences on the nth of October, 1960.
4. Some of the accused then submitted an application on 16th May 1961 before the Judicial Magistrate, First Class, Bhatkal requesting that the proceedings being not maintainable should be quashed. The learned Magistrate dismissed the application on 29th June 1961. The applicants therefore preferred Criminal Revision Application No. 9 of 1961 in the Court of the Sessions Judge, North Kanara, and the learned Sessions Judge made this reference under Section 438 of the Code of Criminal Procedure to this Court for passing appropriate order.
5. Mr. Datar, appearing for the applicants, supports the reference whereas the Additional Assistant Advocate-General appearing for the State, opposes the reference. I must, therefore see what would be the proper order to be made on this reference.
6. The contention that was raised on behalf of the petitioners before the learned Magistrate was that the fresh case is not maintainable in view ofthe earlier order of discharge, that no fresh materials are placed before the Court and that, therefore, the fresh case constitutes an harassment to the accused and consequently it should be dismissed.
7. The learned Judicial Magistrate took theview that the earlier order of discharge dated and March, 1959 was not a legal order and that it is open to the State to launch a fresh case, Consequently, he dismissed the application.
8. The learned Sessions Judge, in revision took the view that the order of the 2nd May 1959 is a judicial order and that so long as that order ef discharge stands, it is not open to the State to file a fresh case. Even otherwise, he held that it amounts to an harassment of the accused unnecessarily and, in that view of the matter, he has made this reference to this Court.
9. The contention of the learned Additional Assistant Advocate General is that the learned Sessions Judge was not right in holding that the order dated 2nd May, 1959 was a judicial order. According to him, it is really an administrativeorder and; therefore, there is no bar for filing a fresh case. Even if it is treated as a judicial order, the same falls within the explanation to Section 403 of the Cr. P. C. and, therefore, there is no bar for filing a fresh case. In either event, he contends that it is competent- for the State to file a fresh case and, therefore, the reference should be rejected.
10. The trial Magistrate held that the order of and May 1959 is a judicial order. Before the learned Sessions Judge, it was conceded by the State that the said order is a judicial order. In this Court however, it is contended by the learned additional Assistant Advocate-General that the order is really an administrative order and not a judicial order. On this aspect of the case, judicial decisions are not uniform, some Courts taking the view that such an order is a judicial order and some other holding it to be an administrative order. Since this reference could be disposed of on another point, I do not think it necessary for me to decide as to whether the order dated 2nd May, 1959 is a judicial order or an administrative order.
11. The contention of the learned Additional Assistant Advocate-General that the existence of the order of discharge dated 2nd May, 1959 is no bar for filing a fresh case, seems to be well founded. Under Section 403 Cr. P. C. it is only persons who have been once convicted or acquitted that are not to be put up for trial again for the same offence and since under the Explanation to Section 403 the discharge of the accused is not an acquittal for the purpose of that section, it would appear that there will be no bar for the entertainment of the second case. However, it is to be remembered that the offence is said to have been committed on the 7th of June, 1958 and if the case is to be continued in the year 1963 after the lapse of more than five years, the question for consideration is whether it would he expedient to do so and whether it would not amount to an harassment of the accused.
12. In this connection, I would like to refer to the report submitted on the 7th of December, 1958 by the Circle Police Officer, Sirsi, to the Judicial Magistrate, seeking his orders on the 'A' summary report. As I have stated earlier the offence is said to have been committed on the 7th of June 1958.
13. Under the Police Manual containing the Rules under the Bombay District Police Act. of 1890 and other Departmental Regulations of the Bombay District Police, 1950, it is incumbent that the investigation should be completed without un-necessary delay. Section XIV deals with completion of investigation and final disposal. Under Sub-rule (5) of Rule 201 appearing in the said section, the maximum period for which an investigation may, for special reasons, be permitted to remain pending is six months from the date of the first information report and that at the end of that period the final report must be submitted to the Magistrate for final orders. It is in pursuance of this requirement that a report was submitted by the Circle Police Officer Sirsi, to the Judicial Magistrate, First Class, Bhatkal, on the 7th of December, 1958.
14. Rule 202 provides that the reports required by Section 173 Cr. P. C. to be submitted on thecompletion of an investigation are of two kinds, viz. (i) charge-sheets in form C P C. 20 and (ii) final reports in form CPC. 19. The Circle Police Officer, as is apparent therefrom, submitted the final report under Section 173 Cr. P. C.
15. Rule 203 provides that when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, the Police Station Officer or the investigating Officer will release the accused person on bail and then submit a final report to the Magistrate. Under Sub-rule (3) of the said Rule, when the final report is submitted by the Officer in charge of the Police station, a request should be made to the Magistrate to classify the case and to issue an appropriate summary of his order, viz.,
' 'A' True undetected where there is no cluewhatsoever about the culprits or where the accusedis, known but there is no evidence to justify hisbeing sent up to the Magistrate for trial'.
16. It is thus the investigating Officer submitted the final report to the Magistrate and asked for his orders thereon. The Investigating Officerstated in his report:
'As per rule No. 201 of B. P. Manual, Vol. IIIno case can be kept under investigation for more than C months after its registration. This case wasregistered on 8-6-1958. The period of 6 months allowed for investigation will expire on 8-12-58 in respect of this case. I am therefore, submitting 'A' final report in the case now. The investigation ofthe case will be reopened after receipt of the case papers from the I.G.P. and final action will be taken according to law. 'A' summary may please therefore be granted in the case at present at anearly date.'
17. Now, when the Police Officer asks that 'A' summary should be granted it would mean thatthe case, though true, is undetected and that there is no evidence to justify the accused being sent up to 'the Magistrate for trial. Thus the reports makes it clear, while asking that 'A' summary should be granted that though the case wastrue, there was no evidence against the accused. I have stated that a fresh case was filed on the nth of October, 1960 on the same facts as before. There does not appear to be any further investigation made since the Government ordered the Investigating Officer by its order dated 31st July, 1959 to submit the charge-sheet after the order of discharge is set aside. Virtually the fresh case is filed on the same set of facts for the same offences. In such circumstances, I am unable to see any purpose in the State prosecuting the accused except it be to cause harassment to them. On their own showing, there was no sufficient evidence against the accused and, therefore, 'A' summary was asked for.
18. It has been held by the High Court of Allahabad that once an accused person has been discharged by a competent Magistrate in respect of a cause of action, he should not be harassed in successive trials in respect of the same causes of action (Vide : AIR1957All557 , Gur Charan v. TheState). With due respect, I find myself in agreement with the said view. In my opinion therefore,though it is competent for the State to file a fresh case, in this case, however, it would not only be highly inconvenient but is also calculated to cause harassment to the accused if the State is to puisne the matter in the year 1963 in respect of art event which took place in the year 1958 and hence the fresh, case filed by the State deserves to be dismissed.
19. 1 accordingly accept the reference and direct the dismissal of the case filed by the State.
20. The learned Additional Assistant Advocate. General has submitted an application under Section 561-A, Cr. P. C. stating that the order dated 2nd May 1959 is illegal and void and should not be allowed to stand. I do not think it necessary to entertain this application in view of my decision.
21. It is accordingly rejected.
22. Order accordingly.