D.H. Shukla, J.
1. The appellant, Kharva Hiralal Damji, filed a complaint against respondent No. 1 under Section 500 of the Indian Penal Code in the Court of the Judicial Magistrate, First Class, at Veraval, being Fozdari Case No. 1248 of 1977. It was the case of the appellant that he was working in the factory of the respondent No. 1 at Veraval and on 14-2-1977, a charge-sheet was issued by the respondent No. 1 wherein serious allegations were levelled against the appellant and in the submission of the appellant, those allegations amounted to culpable defamation. The said complaint was fixed for hearing on 13-10-1977 on which date the appellant-complainant could not remain present as being a Home Guard Cadet, he was required to attend to 'Bandobast' on account of the Prime Minister's visit to Veraval and therefore, the learned Magistrate passed the following order:
The complainant is found absent when called out and hence the complaint is dismissed.13-10-77. J.M.F.C.
2. The appellant submits that till that date of the order abovequoted, even the plea of the accused was not recorded.
3. The appellant thereafter lodged another complaint before the Judicial Magistrate, First Class, Veraval in Fozdari Case No. 3363 of 1977. The learned Magistrate passed an order on 16-10-1977 to issue summons under Section 500 of the Indian Penal Code. The respondent No. 1 after filing his appearance submitted an application (Exh. 11) under Section 300 of the Criminal Procedure Code and prayed that as per the provisions of the said section, the second complaint could not be as the First order of dismissal of the complaint which in fact amounted to an order of acquittal under Section 256 of the Criminal Procedure Code continued to be in force. The learned Magistrate after hearing the parties on this application (Exh. 11) upheld the contention of respondent No. 1 and passed the following order:
Application is allowed. As the accused is acquitted in previous complaint of the same offence, therefore, this complaint is not legally tenable under Section 300 of the Criminal Procedure Code and hence dismissed. Pronounced in the open Court on 19th August.
4. Being dissatisfied with the above order of the learned Magistrate, the complainant-appellant has preferred this appeal.
5. Mr. S.J. Joshi, the learned Advocate for the appellant submitted that the learned Magistrate has erred in applying Section 300 of the Criminal Procedure Code to the complaint filed in Fozdari Case No. 3363 of 1977. The following is the relevant extract from Section 300 of the Criminal Procedure Code to which Mr. Joshi invited my attention:
300. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.
x x x x xExplanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
6. Mr, Joshi submitted that the order of the dismissal of the complaint in the earlier case, being Fozdari Case No. 1248 of 1977 was under Section 256 of the Criminal Procedure Code. The same order was passed as the appellant-complinant had not remained present on the day appointed for the appearance of the accused and that the decision was not on the merits of the case. Mr. Joshi argued that in order to attract Section 300 of the Criminal Procedure Code, it was necessary that the accused was 'tried' by the Court of competent jurisdiction for an offence and convicted or acquitted of such offence, but in this case there was no trial at all. Even the plea of the accused was not recorded and the Magistrate had invoked power under Section 256 of the Criminal Procedure Code when he found that the complainant had not remained present in Court, In support of his contention, Mr. Joshi relied upon an unreported judgment in Misc. Criminal Application No. 663 of 1979, decided by Brother R.C. Mankad, J. on 12th December, 1979. The facts as found from the Persual of the judgement of Mankad, J. are as under :
7. On February 14, 1978, the petitioner field a complaint in the Court of the learned Metropolitan Magistrate, Tenth Court, Ahmedabad, against opponents Nos. 1 and 2 and one Balbhadrasing Chhotesing for offences punishable under Section 447, 448 and 341 read with Section 114 of the Indian Penal Code. The learned Magistrate examined the complainant on oath and issued notice to opponents Nos. 1 and 2 and said Balbhadrasing Chhotesing. The accused appeared in response to this notice on April 4, 1978. They filed their written statement on April 14, 1978. On May 1, 1978, the petitioner withdrew his complaint. On the same day, the learned Magistrate passed the following order on the complaint: 'Allowed to withdraw. So dismissed.' On May 23, 1978 the petitioner field second complaint in respect of the same incident.
The learned Metropolitan Magistrate referred the complaint to the police under Section 156(3) of the Criminal Procedure Code. The police after completing investigation submitted the charge-sheet against opponents Nos. 1 and 2 under Sections 343 and 341 of the Indian Penal Code. The charge-sheet field by the Police was registered as Criminal Case No. 2050 of 1978 and process was issued against opponents Nos. 1 and 2 for the aforesaid offences. The contention was raised that Section 300 of the Criminal Procedure Code was attracted. This contention was upheld. Being aggrieved by this order of the learned Metropolitan Magistrate, Criminal Revision Application No. 5 of 1978 was preferred in the City Sessions Court at Ahmedabad, wherein the view of the learned Metropolitan Magistrate was confirmed. Being further aggrieved, the aforesaid Criminal Application was preferred in the High Court. It was urged before Mankad, J. that before Section 300(1) of the Criminal Procedure Code could apply, the person must have been tried by a Court of competent jurisdiction and convicted or. acquitted of the offence for which he was tried. Reliance was placed on the case of Mohammed Safi v. State of West Bengal : 1966CriLJ75 . Despite the efforts made by the other side to distinguish the judgment of the Supreme Court on the ground that in that case the learned Judge who tried accused had no jurisdiction to try them and therefore, there was no trial at all of the accused and hence that ruling had no application to the case, Mankad, J. did not accept the distinction sought to be made by the other side, observing that the other side overlooked the important aspect of the matter, namely that there has to be a trial and such trial must result in either acquittal or conviction before bar under Section 300(1) of the Criminal Procedure Code would apply. He further observed that even assuming that the order dismissing the complaint amounted to acquittal of opponents Nos. 1 and 2, the question still remains whether such acquittal was recorded after trial, and if it is not recorded after trial, second complaint would not be barred under Section 300(1) of the Criminal Procedure Code. He followed the decision of the Supreme Court in the case of Mohammad Safi v. State of West Bengal (supra) and further observed that unless there is a trial and such trial has ended in acquittal or conviction, the said provision, namely Section 300(1) of the Criminal Procedure Code, would not apply. Mankad, J. observed that there was no acquittal of the accused after trial and hence there was no bar to second complaint under Section 500(1) of the Code, Mr. S.J. Joshi has heavily relied upon this judgment and hence 1 have dealt with it in detail.
8. I may as well refer to the ruling in the case of Mohammad Safi v. State of West Bengal (supra) which has been followed by Mankad, J., The following observations therein are relevant:
Section 403 (of the old Criminal Procedure Code) speaks of there having been a trial and the trial having ended in an acquittal. Proceedings will not amount to a trial unless they are held before a Court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by a Court which is of opinion that it has no jurisdiction to try the case, by whatever name it is characterised cannot in law operate as an acquittal.
The ruling is based upon the basic fact that the trial was held by a Court without jurisdiction to try the matter and hence it was held that there was no trial at all and therefore, Section 300(1) of the Criminal Procedure Code would not apply. It is observed therein as under:
Where the accused, who was tried earlier by a Special Court on the basis of a charge-sheet under Section 409, I.P.C., was acquitted after the conclusion of the trial not on merits but on the erroneous conclusion that the Court had no jurisdiction to take cognisance of the offence on the police challan, the subsequent trial and conviction of the accused for the same offence by the Court were not barred by the provisions of Section 403. The earlier trial was no trial at all and the order passed therein was not an order of acquittal as contemplated by Section 403(1). It was merely an order putting a stop to the proceedings, since the proceedings, ended with that order.
In the course of the judgment, it is observed therein as under:
Where a person has done something which is made punishable by law he is liable to face a trial and this liability does not cease merely because the Court betore which he was placed for trial forms an opinion that it has no jurisdiction to take cognizance of the offence alleged against him. A Court which says, though erroneously, that it was not competent to take cognizance of the offence, as no power to acquit that person of the offence. An order of acquittal made by it will, therefore, in fact be a nullity.
8. Relying upon the decision of Mankad J., Mr. S.J. Joshi submitted that in the present case there was no trial of the accused-respondent No. 1 in the earlier case bearing No. 1248/77, much less a trial on the merits of the matter and that the ruling cited by him supports him completely.
9. Mr. R.D. Vyas, the learned Advocate for the respondent No. 1, submitted that under the facts of the present case the Explanation incorporated in Section 300(1) of the Criminal Procedure Code does not apply and that the learned Magistrate has rightly applied the bar of Section 300(1) to the maintainability of the second complaint bearing No. 3363 of 1977 filed by the appellant-complainant. Mr. Vyas submitted that the order passed by the learned Magistrate in the first complaint bearing No. 1248/77 amounted to acquittal of the accused (respondent No. 1) for all purpose and that although in the order it was stated that the complaint was dismissed as the complainant was found absent when called out, the order operated only as the acquittal of the accused respondent No. 1. Section 256 of the Criminal Procedure Code reads as under:
256(1). If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, not withstanding anything hereinabove contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day...
Mr. R.D. Vyas submitted that under the provisions of Section 256 of the Criminal Procedure Code, when the Magistrate finds that the complainant is absent on the appointed day for the appearance of the accused or any day subsequent thereto which the hearing may be adjourned, the Magistrate has only two alternatives with him. He is required to acquit the accused or to adjourn the matter. There is no provision for dismissing the complaint and if such an order is erroneously passed, the order would have its legal effect as contemplated under Section 256(1) of the Criminal Procedure Code. I agree with Mr. Vyas so far as his contention is concerned that the order of dismissing the complaint would have the effect of acquittal. Mr. Vyas then submitted that there is a provision under Section 203 of the Criminal Procedure Code wherein it is provided that if after considering the statements on oath, if any, of the complainant and of the witness and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every case he shall briefly record his reasons for so doing. Mr. Vyas then drew my attention to Section 249 of the Criminal Procedure Code which provides that when the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. Mr. Vyas submitted and in my opinion rightly, that the Criminal Procedure Code has specifically provided the cases where the complaint is required to be dismissed or when the accused is required to be discharged, Section 256(1) does not envisage either of these two orders and the only order which the Magistrate can pass under Section 256(1) of the Criminal Procedure is either to acquit the accused or to adjourn the proceedings. Therefore, the order passed by the learned Magistrate under Section 256(1) of the Criminal Procedure Code, and there is no dispute that the order was passed by the learned Magistrate under Section 256(1) of the Criminal Procedure Code in a complaint No. 1248/77, would not be covered within the Explanation incorporated in Section 300(1) of the Criminal Procedure Code. It is an order of acquittal which is covered by Section 300(1) of the Criminal Procedure Code and hence the bar of Section 300(1) of the Criminal Procedure Code would not come into operation in respect of the second complaint bearing No. 3363 of 1977.
10. So far as the unreported judgment of Mankad J. is concerned Mr. Vyas submitted that it appears that the other reported judgment of J.M. Sheth J. in the case of Kashigar Ratangar v. State of Gujarat 15 G.L.R. 289 and the judgment of the Division Bench of the Bombay High Court in the case of Shankar Dattatraya Vaze v. Dattatraya Sadashiv Tendulkar AIR 1929 Bombay 408, which is referred by J.M. Sheth J. in the course of his judgment was not brought to the notice of Mankad J. Mr. Vyas submitted that the ruling of J.M. Sheth J. in Kashigar Ratangar's case (supra) is squarely on the point and deserves careful consideration. It is observed therein as under:
Under Section 247 of the Criminal Procedure Code, it is not necessary that the summons should be served on the accused or that he should be present in Court before an order of acquittal can be passed in his favour on account of the absence of the complainant. If the accused was acquitted in a previous complaint under Section 247 Criminal Procedure Code, such an order will not fall within the explanation to Section 403 of the Criminal Procedure Code.' In that view of the matter, the Magistrate was not competent to hear the complaint filed by another police constable and record the order of conviction and sentence. The second trial was barred in view of the provisions of Section 403 of the Criminal Procedure Code.
I may observe at this stage that there is no dispute that Section 256 of the Criminal Procedure Code corresponds to Section 247 of the old Code. The only change which had been incorporated in the present section is to extend the scope of the proviso so as to empower the Magistrate to proceed with the case where the complianant is represented by the Pleader or by the Officer conducting the prosecution. It is also not in dispute that Section 300 corresponds to Section 403 of the old Code. The amendment which has been made in the new section has no relevance so far as the interpretation of Section 300(1) of the Criminal Procedure Code is concerned. In that light of the statutory provision, we may now refer to the ruling in the case of Shankar Dattatraya Vaze v. Dattatraya Sadashiv Tendulkar (supra). In this case the complainant filed a complaint on 11th April 1927, against the accused under Section 102, Presidency Towns Ins. Act alleging that the accused being an undischarged insolvent had obtained credit from the complainant. Summons was issued but was not served and on 28th April 1927, the complainant was absent in Court. The accused was also not present. Under Section 247, Criminal P.C., the learned Magistrate acquitted the accused. On 29th April the complainant appeared before the Court and requested the Court to set aside the order on the ground that he was unable to be present in Court on 28th April. The application of the complainant was rejected. On 2nd May 1928, after nearly a year after the order of acquittal, the complainant filed a fresh complaint before another Magistrate. The learned Magistrate held that the accused having been acquitted under Section 247, Criminal P.C, a fresh trial of the accused was barred under Section 403, Criminal P.C. 'A reference is made therein to the case of In re S.E. Dubash : (1908)10BOMLR628 , wherein in the absence of the complainant, the Magistrate struck off the complaint and it was held that the proper order under Section 247 was an order of acquittal. This observation goes to support Mr. Vyas submission that an order passed under Section 256(1) of the Criminal Procedure Code operates as an acquittal, although by the order the complaint is dismissed.
11. The Division Bench in Shankar Dattatraya Vaze's case (supra) observed that the previous order of acquittal remained in force and was not set aside by any order of a Superior Court. The word 'tried' in Section 403 does not necessarily mean tried on the merits. The composition of an offence under Section 345, Criminal P.C, or a withdrawal of the complaint by the Public Prosecutor under Section 494, Criminal P. C' would result in an acquittal of the accused even though the accused is not tried on the merits. Such an acquittal would bar the trial of the accused on the same facts on a subsequent complaint. It was urged before the Division Bench of the Bombay High Court that the accused must have been 'tried' and there could not be considered any trial unless the summons is served in a summons case against the accused. In rejecting this argument the Division Bench observed as under:
We are of opinion that as soon as a Magistrate takes cognizance of an offence and an order for summons is issued the proceedings have commenced against the accused, and under Section 247 it is not necessary that the summons should be served, or that the accused should be present in Court before an order of acquittal might be passed in his favour on account of the absence of the complainant.
The case of Guggilapu Peddaya, In Re 12 Criminal L.J. 41 was followed. In that case, it was held that 'when a case was disposed of under Section 247, Criminal P.C., the complainant and accused, both being absent the order under Section 247 operated as a bar to further proceedings.' The view taken in the case of Kotayya v. Venkayya (1917) 40 Madras, 977 was found dissented from by the Madras High Court in Re Dudekula Lal Sahib (1917) 40 Madras 976, wherein it was held that 'the withdrawal of a case by the Public Prosecutor under Section 494 followed by the acquittal of the accused was sufficient to bar the further trial of the accused for the same offence, and that though the accused was not tried on the merits the withdrawal of the prosecution by the Public Prosecutor after the summons was issued but before it was served on the accused was sufficient to bar the subsequent trial of the accused. The Division Bench found that to the same effect was the decision of the Allahabad High Court in Emperor v. Dulla A.I.R. 1923 Allahabad, 360 wherein it was held that the provision contained in Section 403, Criminal P.C., is imperative and bars a second trial of a person who has once been acquitted on the same charges, that the section does not make any distinction between acquittals after trial and acquittals under Sections 247, 345 and 494 of the Code, and that so long as an order of acquittal under Section 247 stands, Section 403 bars a second trial on the same charge, no matter whether the order of acquittal is good or bad, legal or illegal. The intention of the legislature is quite clear for it appears from Section 205, Act 10 of 1872, that the Magistrate could only dismiss the complaint under the Criminal Procedure Code of 1872 whereas under the Code of 1872 and the subsequent Code the Magistrate was empowered to acquit the accused. The statutory acquittal was intended to operate as a final bar to further proceedings. Baker, J. concurring with Patkar, J., observed in his separate judgment as under:
The balance of authorities is in favour of the view we have taken. The Madras High Court had at one time expressed a different view, but ultimately the view taken by Abdur Rahim, J., in Guggilapu Peddaya, In Re. has been accepted In Re., Dudekula Lal Sahib. The learned Chief Justice in dealing with the question has pointed out that the English rule of recording decisions on the merits has not been adopted by the Indian legislature which has provided for certain statutory acquittals. It is obvious in view of these particular sections, namely, Sections 247, 345 and 494, that the word 'trial' or 'tried' in Section 403 cannot mean a trial in the ordinary sense of the word, that is, a decision on the merits, because each of these sections provides for an acquittal even when no evidence whatever has been recorded against the accused. I can find no reason why and how if the definition of 'tried' does not exist in the section we should insert it in the Code.
12. It appears that the aforestated ruling of the Division Bench was not brought to the notice of (sic) J. The ruling of the Supreme Court in the case of Mohammad Safi v. State of West Bengal (supra) discussed by Mankad J. in his judgment would not have an analogy to the facts of the present case. I have referred at length to the same case above.
13. The following extract from the Commentaries of B.B. Mitra on Code of Criminal Procedure, Fifteenth Edition, Vol. 2, 1979 at page 251 sums up the position as culled out from different cases as under:
It is not necessary that there should be a full previous trial and an acquittal or conviction on the merits. Where the accused appears and answers to a charge but he is acquitted under Section 256 for non-appearance of the complainant, he is said to be tried and acquitted (although there was no trial on the merits) and he cannot be tried again for the same offence. The words 'who has once been tried' mean against whom proceedings have been commenced in court, i.e. against whom the court has taken cognizance of the offence and issued process. Therefore, where the police filed a charge-sheet against a certain person before a Magistrate and summons was issued, but before it was served, the Public Prosecutor, with the consent of the court, withdrew from the prosecution under Section 494, and the accused was acquitted, it was held that the accused was 'tried and acquitted' within the meaning of this section, but the acquittal barred a further trial for the same offence.
Under the circumstances, it appears to me that the Division Bench judgment in the case of Shankar Dattatraya Vaze v. Dattatraya Sadashiv Tendulkar (supra) has a binding effect on me so far as the decision in the matter is concerned. Consequently, the order passed by the learned Judicial Magistrate (F.C.), Veraval on Exh. 11 in Fozdari Case No. 3363/77, dated 19th August 1978, is hereby upheld and this Criminal Appeal is dismissed.