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Executive Officer, Karukutty Panchayat Vs. Devassy Joseph - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1972CriLJ801
AppellantExecutive Officer, Karukutty Panchayat
RespondentDevassy Joseph
Cases ReferredHaveli Ram v. Delhi Municipality
Excerpt:
.....sections 162 and 223 of the companies act for failure to submit annual returns and balance sheet for the period from 1956 to 1960. subsequent prosecution of the managing director for the same offence for the period from 1956 to 1959 was held to operate as autrefois acquit in respect of the subsequent prosecution. an order of acquittal either under section 247 or under section 248. until set aside, holds good, and if. as stated the legislature intended that it should not have an effect like any other acquittal under the code, it could well have explained this way in the explanation as has been pointed out......it is sufficient that the magistrate takes cognizance of the offence and issues the summons to the accused. an acquittal under section 247 cr. p. c. in such circumstances amounts to an acquittal after trial and section 403 cr. p. c. will come into operation. the observation made in hari dayal singha v. bhajan chandra saha air 1961 tripura 41 may be seen.in summons case, the trial commences as soon as the magistrate takes cognizance of the offence and issues summons to the accused. under section 247 if the summons has been issued on complaint and upon the day appointed for the appearance of the accused, the complainant does not appear the magistrate shall acquit the accused. thus the acquittal order can be passed even if the summons has not been served. it follows, that an acquittal under.....
Judgment:
ORDER

E.K. Moidu, J.

1. In these criminal revision petitions, the only question that comes for consideration is whether the second trial of the respondent on a charge under Section 74 of the Kerala Panchayat Act 1960 read with Rule 26 of the Kerala Panchayat (Taxation and Appeal) Rules 1963 is barred by Sub-section (1) of Section 403 of the Code of Criminal Procedure after the respondent was acquitted of the same charge on withdrawal of the earlier prosecution under Section 248 of the Code of Criminal Procedure.

2. The Executive Officer Karukutty Panchayat who is the petitioner in each of these petitions, filed a complaint in C, C. 1333 of 1970 on 2-9-1970 before the Sub Magistrate, Perumbavoor under Section 74 of the Kerala Panchayat Act 1960 read with Rule 26 of the Kerala Panchayat (Taxation and Appeal) Rules 1963 against the respondent for his failure to pay professional tax in respect of the years 1967-68. 1968-69 and 1969-70. When the case came up for hearing on 27-11-1970 the revision petitioner wanted to withdraw from the prosecution on the allegation that there was misjoinder of charges and that a separate charge had to be filed against the respondent in respect of each year's default. So. the case was permitted to be withdrawn and the Sub Magistrate acquitted the respondent under Section 248 Cr. P. C. Then on 2-12-1970 the revision petitioner again filed 3 separate complaints against the respondent for failure to pay professional tax for each of the years 1967-68, 1968-69 and 1969-70 in respect of the same charges. The Sub Magistrate dismissed these complaints as it was held that they were hit by the bar contained in Section 403 Cr. P. C.

3. If there was an acquittal on a, charge for non-payment of tax for any definite number of years, the prosecution laid again on the same charge for any one year included in the former charge would be hit by Section 403 Cr. P. C. In this regard, the decision in In re Soma Veerappa. 1965 (1) Cri. LJ 392 (Mad) may be seen. That was a case of an acquittal of a Managing Director of a limited company for the offence under Section 159 read with Sections 162 and 223 of the Companies Act for failure to submit annual returns and balance sheet for the period from 1956 to 1960. Subsequent prosecution of the Managing Director for the same offence for the period from 1956 to 1959 was held to operate as autrefois acquit in respect of the subsequent prosecution.

4. An order of acquittal could be passed in a summons case even if the summons is not served on the accused. It is sufficient that the Magistrate takes cognizance of the offence and issues the summons to the accused. An acquittal under Section 247 Cr. P. C. in such circumstances amounts to an acquittal after trial and Section 403 Cr. P. C. will come into operation. The observation made in Hari Dayal Singha v. Bhajan Chandra Saha AIR 1961 Tripura 41 may be seen.

In summons case, the trial commences as soon as the Magistrate takes cognizance of the offence and issues summons to the accused. Under Section 247 if the summons has been issued on complaint and upon the day appointed for the appearance of the accused, the complainant does not appear the Magistrate shall acquit the accused. Thus the acquittal order can be passed even if the summons has not been served. It follows, that an acquittal under Section 247 Cri. P. C. amounts to an acquittal after trial and Section 403 would certainly apply in such a case and a second complaint on the same facts and allegations cannot be entertained by a Magistrate. Where the complaint was dismissed after the issue of summons to the accused on account of the absence of the complainant, it amounts to an acquittal whether the Magistrate uses the word 'discharged' or 'acquitted' and any such acquittal so long as it remains in force will bar the institution of a second complaint for the same offence. The only way in which such an acquittal can be set aside is in accordance with the provisions of Section 417 Cr. P. C.

5. It is clear that in the former case the respondent not only appeared before the Magistrate, but also the Magistrate had commenced the trial. It was then that the withdrawal of the prosecution was effected and the Magistrate by virtue of Section 248 Cr. P. C.. had also passed an order of acquittal in favour of the accused. The relevant provision of Section 248 Cr. P. C. reads as follows:

If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permit-tine him to withdraw his complaint, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.

6. It is seen from the above section that it speaks of a 'complaint' and speaks of an 'accused' and also speaks of an 'acquittal'. It is clear that there has been a complaint and the respondent herein was involved as an accused in that case. There was also an order of acquittal. In such circumstances, it is clear from the terms in which Section 248 is worded that the withdrawal of the complaint does not by itself operate as an acquittal but an order of acquittal by the Magistrate is further necessary. In this case such an order of acquittal has been passed and so the order was in compliance with the provisions contained in Section 248 Cr. P. C. Reading the Section 248 in conjunction with Section 403 Cr. P. C.. it is clear that there had been an acquittal of the accused in the prior case. If there was an acquittal after trial, it could not be contended that there was no bar for prosecution of the respondent over again in respect of the same charge. It is relevant to point out the Explanation to Section 403 Cr. P. C. It reads as follows:

The dismissal of a complaint, the stopping of proceedings under Section 249. the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section.

Section 248 Cr. P. C. does not come within the ambit of this Explanation. It appears to me that if the intention of the Legislature was to exclude acquittals under Sections 247 and 248 for the purview of Section 403 Cr. P. C. that could have been specifically provided as stopping of proceedings under Section 249 or the discharge of the accused or any entry made upon a charge under Section 273 as has been done in that Explanation. On this aspect, the observation in Haveli Ram v. Delhi Municipality may be seen.

An order of acquittal either under Section 247 or under Section 248. until set aside, holds good, and if. as stated the Legislature intended that it should not have an effect like any other acquittal under the Code, it could well have explained this way in the explanation as has been pointed out.

7. In the circumstances of the case, therefore, it has to be said that the second prosecution launched by the revision petitioner against the respondent is not sustainable and it is barred by Section 403 Cr. P. C. The order of the court below is, therefore, correct, and no interference is called for.

8. In the result, the revision petitions are dismissed.


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