1. On 10th September, 1935, the Revenue Inspector of Modakurichi firka, Coimbatore District, made a complaint to the Police under Section 353, Indian Penal Code, against two accused, Mari Moopan and Mootha Moopan. A charge-sheet was filed by the Police before the Sub-Magistrate of Erode, who, after hearing the prosecution evidence, came to the conclusion that a prima facie case was made out not under Section 353 but only under Section 186. He thereupon framed a charge under that section and took the evidence for the defence. When the case came to be argued the plea was raised for the accused that the trial was illegal as Section 195(1)(a), Criminal Procedure Code, enacts that no Court shall take cognisance of an offence under Section 186, Indian Penal Code, except upon the complaint of the public servant concerned or some other public servant to whom he is subordinate. The Sub-Magistrate upheld this plea and acquitted the accused. The Revenue Inspector thereupon filed his complaint in person before the Court and the case was transferred to the file of the Sub-Magistrate of Perundurai. The accused petitioned the District Magistrate to withdraw the prosecution, urging that having already been acquitted of the offence they could not, under the provisions of Section 403(1), Criminal Procedure Code, be tried for it again. The District Magistrate refused to withdraw it. Then they raised their plea of autrefois acquit before the Sub-Magistrate. He, naturally, with the District Magistrate's order before him, refused to entertain it. The accused have accordingly filed this Revision Petition in the High Court, and, as there is a conflict of authority on the point in issue, the petition has been referred to a Full Bench.
2. The material portion of Section 403(1) runs as follows:
A person who has once been tried by a Court of competent jurisdiction for an offence and...acquitted of that offence shall, while such... acquittal remains in force, not be liable to be tried again for the same offence.
3. The conflict of authority is concerned with the expression 'Court of competent jurisdiction'. In Madras it has been held Vide Ganapathi Bhatta, In re (1911) 24 M.L.J. 463 : I.L.R. 36 Mad. 308, with reference to the similar expression 'competent to try' in Sub-section (4) of Section 403, that it refers only to the character and status of the tribunal, which means that a Second Class Magistrate like the Sub-Magistrate of Erode, is always 'competent' to try a 'second class case', such as an offence under Section 186, Indian Penal Code. Four other High Courts on the other hand, Bombay, Calcutta, Allahabad and Patna take the wider view that a Court which tries an offender on a complaint which it is forbidden by the Code to entertain unless certain conditions are satisfied acts without jurisdiction.
4. I do not think it necessary to examine these cases, or to come to any final conclusion on the meaning of the word 'competent' in Section 403. I prefer to approach the problem from a slightly different direction. The accused in this case are being prosecuted for an offence. They say they have already been acquitted of that offence. Is that acquittal valid; does it 'remain in force'; has it ever had any force; can a Court take any notice of it?
5. answer to these questions is in my opinion clear and apparent at once on a perusal of Section 530 of the Code. According to that section if any Magistrate 'not being empowered by law in this behalf ' tries an offender his proceedings shall be void. The Sub-Magistrate of Erode was certainly empowered by Section 28 to try an offence under Section 186, Indian Penal Code, but was he empowered to try these offenders for this particular offence? Clearly not, for Section 195 prevents him from taking any notice whatever of the offence until a proper complaint is filed. His trial was therefore void. His charge was void. His judgment of acquittal was void. There is nothing which the accused can compel the Court to recognise in support of a plea under Section 403.
6. Accordingly hold that the order of the Sub-Magistrate of Perundurai refusing to drop the proceedings against the accused is right, and would dismiss this petition.
Horace Owen Compton Beasley, Kt., C.J.
7. I agree.
Pandrang Row, J.
8. I agree and wish only to add that the conclusion we have come to is in consonance with the rule of English law on the subject laid down in Rex v. Marsham (1912) 2 K.B. 362 by Avory, J., as follows:
It is clear that in order to plead such a plea effectually-either a plea of autrefois acquit or autrefois convict-it must appear that the defendant has been legally convicted or legally acquitted, and it is laid down in Chitty on Criminal Law, second edition, Vol. I, p. 455, that 'the point in discussion always is whether, in fact, the defendant could have taken a fatal exception to the former indictment; for if he could, no acquittal will avail him'.