1. The complainant in this case, K. Venkayya, presented a complaint to the Taluq Magistrate, Nandigama, on 8th August 1916 against accused B. Kottayya and others, charging them with an offence under Section 426, Indian Penal Code. The case was duly taken on file and posted for haring, and eventually adjourned to 20th September 1916; on which date, in consequence of the absence of complainant, an order of acquittal was passed under Section 247, Criminal Procedure Code.
2. Subsequently on 22nd September 1916, complainant presented a freshly complaint of the same offence based on the same facts and explained his absence on 20th September 1916 to the satisfaction of the Magistrate. The Magistrate thereupon took cognizance of this second complaint and directed the issue of process to the accused.
3. The sole question is whether Section 403, Criminal Procedure Code, is a bar to the Magistrate's taking cognizance of the second complaint by reason of the order of acquittal passed on 20th September 1916.
4. In our opinion it is not. Section 403 only bars the re-trial of a person, who has once been tried and convicted or acquitted, and in this case, it does not appear that the accused were tried on the first complaint. The trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused under Section 242, Criminal Procedure Code, and there is nothing in the record to indicate that this was done. In fact, from the Magistrate's explanation it may be safely inferred that it was not. No trial having even commenced on the first-complaint, Section 403 does not bar the Court from taking cognizance of the second complaint.
5. Our attention has been drawn to the ruling in Guggilapu Peddaya, In re 9 Ind. Cas. 253 in which a different view of Section 403 has been taken; but with all respect, we feel unable to concur in the reasoning of the learned Judge who decided that case. In our opinion some meaning must be attached to the word 'tried' in the early part of Section 403 (1). It should not be treated as mere surplus age, as the learned Judge would seem to do. It would have been quite simple to word the section thus:
9 Ind. Cas. 253 A person who has once been convicted or acquitted by a Court of competent jurisdiction of an 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 Section 237, or for which he might have been convicted under Section 237.
6. This would clearly include an acquittal under Section 247 at the very outset before anything had been done in the case. But since the word 'tried' has been inserted, we must give it due weight. We are unable to see that this construction renders the provisions of Section 247 nugatory or that any inference can be drawn from the omission to refer to Section 247 in the explanation to Section 403. None of the three Calcutta cases quoted in Guggilapn Peddaya, In re 9 Ind. Cas. 253 : 12 Cri. L.J. 41 appear to us to be in point. In Panchu Singh v. Umor Maftomed Sheikh 4 C.W.N. 346 the Court simply deals with the power of the District Magistrate to direct further enquiry under Section 437, Criminal Procedure Code, and the effect of Section 403 is not considered at all. Bishun Das Ghosh v. King-Emperor 7 C.W.N. 493 deals with exactly the same point and the order in the first proceedings was one under Section 258, not Section 247, The judgment in the last case of Kedar Nath Biswas v. Adhin Manji 7 C.W.N. 711 simply follows the two previous rulings and deals also with an order under Section 437, Criminal Procedure Code. Assuming that it is not within the power of a District Magistrate or Sessions Judge to direct a Magistrate to make further enquiry into a case which has been acquitted under Section 247, Criminal Procedure Code, it does not follow that the Magistrate may not himself entertain a fresh complaint on the same facts. He is only debarred from doing so by Section 403, which is not even referred to in any of these rulings.
7. The case relied on by the District Magistrate in his Order of Reference, Suraiya Sastriv, Venkata Rao 2 Wair 457, is easily distinguishable. The accused in that case not only appeared, but 'answered to the charge.'
8. Another good reason for declining to treat the word 'tried' as mere surplusage is, that it is essential to a plea of autrefois acquit under English Law. The law is stated in Russell on Crimes at page 1983 of the 7th Edition: 'At common law a man who has once been tried and acquitted for a crime may not be tried again for the same offence if he was in jeopardy upon the first trial. He was so in jeopardy if 9 Ind. Cas. 253 : 12 Cri. L.J. 41 the Court was competent to try him for the offence, 4 C.W.N. 346 the trial was upon a good indictment, (3) the acquittal was on merits, that is, by verdict on the trial or in summary cases by dismissal on the merits followed by a judgment or order of acquittal'. It is clear that the mere fact of a judgment of acquittal is not in England sufficient to entitle the person acquitted to plead autrefois acquit. The matter was exhaustively considered by the Court of King's Bench and the law was laid down as follows by the Lord Chief Justice: 'The true meaning of this great fundamental maxim is that a man shall not twice be put in peril after a verdict has been returned by the Jury, that verdict having been given on a good indictment and one on which the prisoner could be legally convicted and sentenced. It does not, however, follow that if from any particular circumstance a trial has proved abortive, that the case should not again be submitted to the consideration of a Jury and determined as right and justice may require'. The law being so clear in England and its requirements having been reproduced in the Indian law, we are satisfied that we cannot eliminate the word tried' from the section. The accused has not been tried and the Magistrate acted in accordance with law in taking the complaint on his file. The papers will be returned.