M.S. Nesargi, J.
1. This petition :s directed against the order dated 20-1-1975 passed by the Sessions Judge, Chickmagalur, on the two applications of the two petitioners, in Sessions Case No. 27 of 1974.
2. The necessary facts may be stated briefly as follows:
In regard to the murder of one Bobe-gowda, a case in Crime No. 62 of 1973 was registered on 13-10-1973, On completion of the investigation a charge-sheet was filed against these two petitioners only. On 16-11-1973, the case was registered as C. C. No. 2319 of 1973. The Magistrate inquired into the case and committed the petitioners by his order dated 15-3-1974 and framed a charge against them for having committed an offence under Section 302 read with 34, Indian Penal Code. He read over and explained the charge to the petitioners and directed them to take trial before the Court of the Sessions Judge, Chickmagalur, The records of the case reached the Court of the Sessions Judge, Chickmagalur, on 23-3-1974. The case was ordered to be registered as S. C. No, 5 of 1974. The trial of the case was posted on 15-7-1974. But by that time, on 29-6-1974, the Public Prosecutor filed an application under Section 494 of the Cri. P. C, 1898, (hereinafter referred to as the Old Code) praying for permission of the Court to with- draw from the prosecution. The Sessions Judge passed an order giving permission and in the course of that order he ordered that the two petitioners, who were the only accused in that case, be discharged. Thereafter, the State Government ordered fresh investigation into the offence and that was done. After that investigation, a charge-sheet was filed before the J. M. F. C, II Court Chickmagalur, as against these two petitioners and three others. The two petitioners were shown as A-l and A-5. As this charge-sheet was filed after 1-4-1974, the Magistrate, on finding that there appeared to be an offence exclusively triable by the Court of the Sessions Judge, committed the five accused under Sec, 209 of the Criminal Procedure Code, 1973 (hereinafter referred to as the New Code). The case was registered, as Sessions Case N. 27 of 1974 in the Court of the Sessions Judge, Chickmagalur. Then these two petitioners filed the applications under Section 300 of the New Code contending that by virtue of the order dated 29-6-1974 parsed by fee Sessions Judge on the application fled by the Public Prosecutor under Section 494 of the old Code, they have been, in lew, acquitted and as such, they commitment not be once again prosecuted. The Sessions Judge dismissed these applications by the order In question.
3. Sri B. K. Ramachandra Into, learned Counsel appearing on behalf of the petitioners, pointed out that the Sessions Judge, Chickmagalur, folio wed the procedure prescribed under the old Code while dealing with Sessions Case Not 5 of 1974 and passed the order dated 15-7-1974, on the application filed by the Public Prosecutor. He contended that under Section 207-A (7) of the Old Code the Magistrate had framed a charge, read over and explained the charge to the petitioners, and therefore Section 494(b) o# the Old Code applied. He, further argued that even though the Sessions Judge, has, in his order dated 29-6-1974, ordered discharge of the petitioners as a consequence of the Public Prosecutor withdrawing from prosecution, the legal effect of granting the permission is the one mentioned in Section 494(b) of the Old Code, and that is acquittal of the petitioners. He, pointed out that the necessary ingredients of Section 300 of the New Code are satisfied and as such, the petitioners cannot, in law, be prosecuted over again for the same offence of which they have been acquitted and that too, on the basis of the same set of facts.
4. Sri A. M. Farooq, learned Government Pleader appearing on behalf of the State, firstly contended that the re-cords in C. C. No. 2319 of 1973 - after the order of connmtinent was passed by the Magistrate - reached the Court of Sessions Judge, Chictemagalur, on 23-3-1974, but the Sessions Judge passed his first order of registering the case on 2-4-1974 and that shows that the sessions case came to remain pending in the Court of the Sessions Judge after 1-4-1974 and hence the New Code would be applicable, He urged that in view of Sections 226 and 227 of the New Code, the Sessions Judge had to. frame a charge before proceeding with the Sessions trial in that case, name-ly, Sessions Case No. 5 of 1974, but, be-fore the Sessions Judge framed a charge, the Public Prosecutor moved for permission to withdraw from the prosecution and the Sessions Judge granted permission on 29-6-1974, hence the order dated 29-6-1974 passed by the Sessions Judge, Chiekmaga-lur, is an order under Section 321(a) of the New Code and that is why the Sessions Judge has ordered discharge of the petitioners.
5. He next contended that even If the provisions of the old Code applied end the Sessions Judge passed the order dialed 29-06-1974 under Section 494 of the Old Code, no change having been framed before the commencement of the Sessions trial Section 494(a) the code applied and the order of discharge passed by- him is the appropriate order in law, and as such Section 300 of the New Coda would not at all be applicable.
6. He lastly urged mat a perusal of the order passed by the Sessions Judge laid down by the Supreme Court in State of Bihar v. Ram Naresh Pandey : (1957)ILLJ226SC and M. N. Sankaranarayanan Nair v. P. V. Batekrishnan : 1972CriLJ301 , were not followed by the Sessions Judge and that shows that the order is unsustainable in law. He argued that this Court should suo motu take notice of the untenability of the order dated 29-6-1974 and in exercise of its powers under Sec-Hon. 401 or Section 482 of the New Code, as the case may be, set aside that order in the interest of justice, because a heinous offence of murder was in question and the two petitioners - in spite of there being voluminous satisfactory evidence against them - would go unpunished
7. The first question to be decided Is whether the procedure provided under the New Code or the procedure provided under the Old Code applied to the trial in Sessions Case No, 5 of 1974 The order of commitment was passed on 15-3-1974. All the records were received by the Court of the Sessions Judge at Chickmagalur on 23-3-1974. The only thing that happened is that the first order directing registration of the Sessions case was passed by the Sessions Judge on 2-4-1974. The commit- ment was under the provisions of the Old Code, The order of commitment having been passed on 15-3-1974 and the records also having been received in the Court of the Sessions Judge on 23-3-1974, that is, well within 1-4-1974, the date on which the new Code came into force it is plain that the Sessions case,' though, it was not at that time actually registered in the sessions register was pending for trial in the Court of the Sessions Judge, Chick- magalur, prior to 1-4-1974 The fact that the Sessions Judge passed his first order ^ the order sheet of that case on 2-4-1974 does not at all change the situation. Even if the re- cords of the case had been received by the Sessions Court after 1-4-1974 the position in law, in my opinion, would not have changed. Section 484(2) of the new Code reads as follows:'-
(2) Notwithstanding such re-peal .-
(a) if, immediately before the date on which this code comes into force , there is any appeal Application trial inquiry or investigation pending then such appeal application trial inquiry or investigation shall be disposed of held or made as the case may be in accordance with the provision of the code of criminal procedure 1898 as in force immediately before such commenced (hereinafter) referred to as the old code ) as if this code had not come into force
Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accord- accordance with the provisions of this Code;(b)...
A reading of this provision makes it clear that if a trial is pending in a Court immediately before 1-4-1974, the trial would be governed by the provisions of the old Code. The word 'pending' used in the above provision cannot be understood to mean that the records should physically be there immediately before 1-4-1974. Section 207A of the old Code deals with the procedure to be adopted in an inquiry into cases triable by the Court of Session or High Court. It provides that after committing the accused to the Court of Session, the Magistrate shall summon witnesses included in the list given by the accused, to appear before the Sessions Court to which the accused are committed. All this material shows that right from the date of the order of commitment, it is deemed in law, that the trial of the accused is to be pending in the concerned Court of Session. This position in law would be more clear if an illustration of reference under Section 435 of the old Code is taken into consideration. Under Section 435 of the old Code, the Sessions Judge does not have powers to pass a. final order. He has to, if he is of the opinion that the order in question is unsustainable in law, make a reference to the High Court and the High Court has to pass the final order. If, in a criminal revision petition, pending before a Sessions Judge immediately prior to 1-4-1974, the Sessions Judge passes an order making a reference to the High Court and the concerned papers do not reach the High Court prior to 1-4-1974, could it be said that in the High Court the reference should be disposed of under the provisions of the new Code? It is easy to see that if such an interpretation is made of the word 'pending' in Section 484(2) of the new Code, it would lead to an anomalous situation of leaving the parties in lurch. The Sessions Judge in the illustration given above could not have disposed of the revision under the old Code and the reference made to the High Court could not be disposed of under the new Code there being no provision to that effect. That means the parties would have no forum to get their case heard and disposed of. Therefore, even if the Sessions Judge passes an order of reference on any date after 1-4-1974 in a criminal revision petition pending before him immediately prior to 1-4-1974, that reference will have to be disposed of by the High Court under the provisions of the old Code. Hence, it is immaterial as to when the records in such matters reach the High Court Therefore, for the purpose of Section 284(2)(a) of the new Code, it is immaterial when the records reach the Court concerned. In this view of the matter, the contention of Sri Farooq cannot be accepted. I hold that the provisions of the old Code governed the Sessions Case No. 5 of 1974 and the order dated 29-6-1974 passed by the Sessions Judge was under Section 494 of the old Cede. In fact the record shows that the Sessions Court had applied the provisions of the old Code in the matter of trial of Sessions Case No. 5 of 1974.
8. Section 494 of the old Code reads as follows:
494. EFFECT OF WITHDRAWAL FROM PROSECUTION:
Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
9. Now it is to be seen whether the facts of this case fall within the ambit of Sub-section (a) or Sub-section (b) of Section 494 of the old Code. The argument of Sri Ramachandra Rao is that the Magistrate trate having already framed the charge as per Section 207-A(7) of the old Code and there being no provision in the old Code making it incumbent on the Sessions Judge to frame a charge before proceeding with the trial in a Sessions Case, it will have to be held that Sub-section (b) of Section 494 of the old Code applied to the facts. Sri Farooq argued that the charge contemplated under Sub-section (b) of Section 494 of the old Code is different from the charge contemplated under Section 207-A(7) of the old Code. The Sessions Judge being competent to frame a charge, it must be held that if the Sessions Judge had framed a charge in a given sessions case, then Section 494(b) of the old Code would apply and if the Sessions Judge had not framed a charge in a given sessions case, Section 494(a) of the old Code would apply.
9-A. Section 207-A(7) of the old Code makes it incumbent on a Magistrate holding an inquiry into cases triable by the Court of Session or the High Court, to frame a charge, under his hand declaring with what offence the accused is charged, when the Magistrate is of opinion that the accused should be committed for trial. It is also incumbent on him to - as soon as he frames such charge - read and explain the charge to the accused and give a copy thereof free of cost Thereafter he has to ask the accused to furnish, orally or in writing, the names of his witnesses. It is then that he has to make an order committing the accused for trial by the Court of Session or the High Court as the case may be. What is to be noticed is that the Magistrate, after framing the charge and reading over and explaining to the accused and even after furnishing a free copy to the accused, is not given the power to record the plea of the accused.
10. The procedure for trial before High Court and Court of Session is found in Chapter XX1TI of the old Code. The actual procedure to be adopted for a trial before Court of Session is narrated from Section 271 onwards in Chapter XXIII of the old Code.
Section 271 of the old Code reads as follows:
When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.(2) PLEA OF GUILTY.- If the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon.
What is to be particularly noticed in this provision is that it nowhere states that the Sessions Judge shall frame a charge. But, it specifically states that the Sessions Judge should read out and explain the charge to the accused and then call upon him to state whether he is guilty or he claims to be tried. It is evident that the charge referred to in this Section 271 is the charge framed by the committing Magistrate under Section 207-A(7) of the old Code.
11. At this stage it is convenient to deal with the contention of Sri Farooq on the basis of Section 226 of the old Code. Section 226 of the old Code reads as follows:
226 PROCEDURE ON COMMITMENT WITHOUT CHARGE OR WITH IMPERFECT CHARGE.-When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the State, may frame a charge, or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this Code as to the form of charges.
12. It goes without saying that either the old Code or the new Code, does not envisage a trial of a case without a charge being framed. But a reading of the provisions of Sections 271 onwards of the old Code, would make one to understand) that though the Sessions Judge is not; required to frame a charge, he has to read over and explain the charge to the accused and record his plea. Section 226 of the old Code, as is manifest, relates to Section 2O7A(7). If a committing Magistrate fails to frame a charge while committing the accused for trial or frames an imperfect or erroneous charge, then the Court trying the sessions case may frame a charge or add to or otherwise alter the charge framed by the committing Magistrate. Therefore, it is clear that the irregularity committed by the committing Magistrate is curable by the trying Court. This provision cannot be understood to mean that it is incumbent on the trying Court to frame a charge afresh and then proceed to hold trial. Hence, I have no hesitation in holding that the charge on which the accused is to be tried in a sessions case is the charge framed under Section 207-A(7) of the old Code. The charge mentioned in Section 494(b) of the old Code is the charge that is framed for the purpose of trial. Hence, the charge framed under Section 207-A(7) of the old Code would be the one within the meaning of Section 494(b) of the old Code.
13. In Queen-Empress v. Shivarama, (1889) ILR 12 Mad 35, the Madras High Court has dealt with Sections 494, 210, 271 and 226 of the Code of Criminal Procedure as it stood then while considering the question of bar of second trial. In that case Sivarama was prosecuted on the basis of a sanction to prosecute granted by the District. Munsiff in regard to Sivarama having given false evidence in a suit. Sivarama was committed for trial. The Sessions Judge held that sanction granted by the District Munsiff was too vague and did not apply to Sivarama. At that stage the Public Prosecutor withdrew from the prosecution and the Sessions Judge directed that Sivarama should be discharged, Thereupon a fresh sanction was obtained from the District Munsiff and Sivarama was again prosecuted and committed to trial before the Sessions Judge. The Sessions Judge convicted Sivarama. On the question whether the second trial was barred because of Section 494(b) of the Cr. P. C, the Sessions Judge held that the Public Prosecutor had withdrawn from the prosecution in the previous case before a charge was framed and Sivarama had been discharged, hence the second prosecution tion was not barred. It was argued on behalf of the State that the conviction was bad as the Sessions Judge had committed a mistake in holding that the Public Prosecutor had withdrawn from the prosecution in the previous case even before the charge was framed mainly depending on the practice of the Sessions Courts in not trying the prisoners on charges framed by the Committal Courts but on the charges framed in the Sessions trial. It was farther argued on behalf of the State that in the previous case Sivarama ought to have been acquitted as per Section 494(b) of the Cr.P.C. and the only way to remedy the defect was to set aside all proceedings including the erroneous order of discharge and to direct a new trial from that point. Their Lordships held that the charge was withdrawn by the Public Prosecutor by permission of the Sessions Judge and the result was that under Section 494(b) the prisoner should have been acquitted. But he was merely discharged. That procedure was wrong. As the prisoner was entitled to be acquitted on the charge, the second charge for the same offence, though on a new sanction was bad. Their Lordships reversed the conviction. I may mention here that the provisions in Sections 210, 226, 271 and 494 of the Cr.P.C. as it stood in 1898 were similar to the very Sections in the old Code. I respectfully agree with the view taken by their Lordships of the Madras High Court.
14. In view of the foregoing reasons 1 hold that though by the order dated 29-6-1974 in Sessions Case No. 5 of 1974 the Sessions Judge discharged the petitioners, the effect of the Public Prosecutor withdrawing from the prosecution was acquittal of the petitioners. Hence the petitioners were acquitted in Sessions Case No 5 of 1974. Therefore, they cannot be prosecuted in Sessions Case No. 27 of 1974 in view of Section 300 of the new Code.
15. I do not think that there is any force in the contention of Sri Farooq that this Court should suo motu set aside the order dated 29-6-1'974 passed by the Sessions Judge in Sessions Case No. 5 of 1974 on the ground that the Sessions Judge had not applied his mind particularly in the light of the decisions in : 1957CriLJ567 and : 1972CriLJ301 to the facts and circumstances made out in the application filed by the Public Prosecutor praying for permission to withdraw from the prosecution. Now it is seen that the petitioners were acquitted on 29-6-1974. The order dated 29-6-1974 was not at all challenged either by the State or by the informant concerned in the offence of murder of Bobe-gowda. The fact i.hat the State had misconceived the position in law as it was its intention to get a re-investigation made and to tile a fresh charge-sheet is not at all a ground to make this Court act at this stage, that too invoking the powers of this Court under Section 401 or Section 482 of the new Code. It is to be seen that a similar point was argued before their Lordships of the Madras High Court in Sivarama's case. Tore-iterate it was argued on behalf of the State that, the only way to remedy the defect was to set aside all proceedings including the erroneous order of discharge and direct a new trial from that point. Their Lordships repelled that contention. I respectfully agree with the decision on this point. Moreover if the contention advanced by Sri Farooq is accepted, it means that at this stege, this Court has to interfere with the order of acquittal and direct a trial, though it is not shown that such an order is in the interest of justice. Sri Farooq argued that there is abundant evidence against these two petitioners to show that they had committed the murder of Bobegowda, and if such a course is not adopted, the two petitioners would remain acquitted and that would be injustice. I am not impressed by this reasoning. The High Court ought not to exercise its powers under Section 401 of the new Code to interfere with an acquittal by adopting an indirect method of order of trial. That is exactly what has been held by the Supreme Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh : 3SCR412 .
16. In the result this petition succeeds and is allowed. It is held that the trial against the petitioners i.e. accused Nos. 1 and 5 in Sessions Case No. 27/74 before the Sessions Judge at Chickmagalur, is barred by the provisions of Section 300 of the new Code as they have been already acquitted of the same charge passed on the same set of facts. The Committal Order passed against them is quashed.