R. Sadasivam, J.
1. Petitioners in Crl. M.P. No. 3247 of 1965 are the accused in P.R.C. No. 22 of 1965, on the file of the Sub-Magistrate, Sankari, initiated on a police charge-sheet under Section 307, Indian Penal Code. The first petitioner Raja Goundan is the husband of second petitioner Sattiammal and the son of the complainant Chinna Goundan. Chinna Goundan got himself divided from his four sons. But he was living with and looking after the properties of his minor son Subramaniam. Raja Goundan was inimically disposed towards his father as he felt that his father was giving all his income to his youngest son but was also giving him trouble. On the morning of 8th September, 1965 at 7 A.M. when Chinna Goundan went to the well owned in common by his sons, Raja Goundan and Subramaniam to irrigate the ' lands of Subramaniam, Raja Goundan prevented him from doing so, picked up a quarrel and, at that time, both Raja Goundan and his wife Sattiammal lifted him and threw him into the well saying that it was better that they got rid of him. But hearing his shouts, the neighbours rushed to the well and rescued him. He got himself treated for the simple injuries by the doctor at the Government Hospital, Sankari and gave a complaint to the Police on the same day. But as the police did not make any enquiry, or arrest the accused, Chinna Goundan preferred a complaint before the. Sub-Magistrate, Sankari, on 15th September, 1965. The Sub-Magistrate, Sankari recorded the sworn statement of Chinna Goundan, and took the case on file under Section 323, Indian Penal Code and posted it for enquiry under Section 203, Criminal Procedure Code. But, on 18th September, 1965, Chinna Goundan entered into a compromise with the accused in the presence of Panchayatdars and on 20th September, 1965, the Sub-Magistrate, Sankari, permitted him to withdraw the complaint and acquitted the accused under Section 248, Criminal Procedure Code. Subsequently, the police filed the charge-sheet dated 20th September, 1965 in the Sub-Magistrate's Court on 22nd September, 1965 and it was taken on file as P.R.C No. 22 of 1965. The accused, Raja Goundan and Sattiammal have filed this Criminal Miscellaneous Petition No. 3247 of 1965 to quash the proceedings in P.R.C. No. 22 of 1965 on the file of the Sub-Magistrate, Sankari, on the ground that the acquittal on the private complaint operated as a bar to the prosecution on the same facts on police charge-sheet.
2. During the hearing of the Criminal Miscellaneous Petition, I found several suspicious circumstances regarding the disposal of the private complaint and entertained grave doubts about the legality and validity of the order of acquittal passed by the Sub-Magistrate, Sankari and passed the order dated 7th February, 1966 for suo motu taking up in revision to consider the validity and legality of the order dated 20th September, 1965 in C.C. No. 3464 of 1965 on the file of the Sub-Magistrate, Sankari, for the reasons stated therein, and it forms (he subject-matter of Criminal Revision Case No. 178 of 1966.
3. The rule autre fois acquit under Section 403, Criminal Procedure Code, has been held in several cases to apply also to statutory acquittals under Sections 247, 248, 345 and 494, Criminal Procedure Code. In re Dudekula Lal Sahib : AIR1918Mad231 . Abdur Rahim, J., pointed out that the word 'tried' or 'trial' has not been defined anywhere, that the trial of a summons case commences as soon as the process is issued and that if the Magistrate took cognizance of an offence and issued process, the proceedings are to be terminated by an order, either of acquittal or of conviction, unless the proceedings are stopped under Section 249, Criminal Procedure Code. But Napier, J., following an earlier bench decision In re Kotayya I.L.R.(1917) Mad. 977 to which he was a party, held that a person could not be said to have been tried in a case, while he has not been served with the summons. On this difference of opinion, the matter went before Wallis, C.J., who concurred with Abdur Rahim, J., that the acquittal of the accused on the withdrawal of the case by the Public Prosecutor under Section 494, Criminal Procedure Code was a bar to a subsequent trial for the same offence. He has observed that he found great difficulty in saying that the accused had been tried and acquittal within the meaning of Section 403, Criminal Procedure Code, in the case of statutory acquittals. According to him, the intention of the Legislature was that the withdrawal by the Public Prosecutor at any stage in those trivial cases which are tried as summons cases without the framing of any charge was to have the same effect as a withdrawal of a case after a charge had been framed. In Kutumibayya v. Lakshminarasimha Rao : AIR1943Mad6 , it was held that
as the trial in a summons case commences with the issue of notice to the accused, the accused was both tried and acquitted, when he was acquitted under Section 247, Criminal' Procedure Code, on account of the absence of the complainant, and, therefore, Section 403, Criminal Procedure Code, would operate as a bar to a further trial.
4. In Kandaswami v. The Executive Officer, Panchayat Board, Attur : AIR1947Mad306 , it has been held that under Section 242, Criminal Procedure Code, the trial of a summons case begins when the accused appears, or is brought before a Magistrate and not when he is asked to show cause why he should not be convicted and hence the withdrawal of a complaint under Section 248, Criminal Procedure Code even before the accused is questioned under Section 242, Criminal Procedure Coder would amount to a trial and acquittal within the meaning of Section 403, Criminal Procedure Code.
5. In the Code of Criminal Procedure, 1898 in dealing with definitions under Section 4, it is stated that ' trial means the, proceedings taken in Court after a charge has been drawn up, and includes the punishment of the offender' But this definition, which does not find a place in the Subsequent Codes, is not of any help in construing the word ' trial' in summons cases. In Emperor v. John Mclver : AIR1936Mad353 , in considering the proper time for raising the plea of autre fors acquit in a criminal trial, it has been stated at page 357 that
the trial commences with the arraignment of the accused that is to say when the charge is read out to the accused and he is called upon to plead to it.
6. At page 375 of the same decision, the observation in Venkatachannava v. Emperor : (1920)38MLJ370 , that a ' trial may reasonably be taken to be every proceeding which is not an enquiry' has been referred to with approval. In Haveli Ram v. Municipal Corporation of Delhi , the two views with regard to the meaning and scope of the word ' tried 'in Sub-section (1) of Section 403, Criminal Procedure Code, one view being that the accused must be present in Court on being summoned, before it can be said that the trial has commenced and the other being that once the Court has taken cognizance of a complaint or a criminal case and has ordered steps towards the trial and what it has done is proceeding in the nature of a trial, are referred to and, according to that decision, the latter view seems to accord more with the Explanation to Section 403, Criminal Procedure Code because if it was the intention of the Legislature to exclude acquittals under Sections 247 and248, Criminal Procedure Code from the scope of Section 403, Criminal Procedure Code, that could have been as specifically provided for as stopping of proceedings under Section 249, Criminal Procedure Code or the discharge of the accused or an entry made upon a discharge under Section 273, as has been done in that Explanation. Thus whatever view is taken it could not be said that the accused in this case were tried on the private complaint given by Chinna Goundan as no process was issued to them, as the case was in the stage of enquiry under Section 202, Criminal Procedure Code when they were acquitted.
7. In Jawana Singh v. Bhadai Shah : 1964CriLJ468 , the Supreme Court has held that where on receipt of a complaint the Magistrate proceeded to examine the complainant on oath under Section 200, Criminal Procedure Code and made the order in these words ' To S.I. for instituting a case and report' the order is one under Section 202, Criminal Procedure Code and the Magistrate has taken cognizance of the offence on the complaint and an appeal by the complainant against the order of acquittal lies to the High Court under Section 417(3), Criminal Procedure Code. The learned Advocate for the accused relied on this decision and contended that the trial of the summons case on the complaint of Chinna Goundan had commenced in this case as the Sub-Magistrate had taken cognizance by ordering an enquiry under Section 202, Criminal Procedure Code. But even according to) the broader of the two views of the word ' trial', as stated in Haveli Ram v. 'Municipal Corporation of Delhi , a trial in a summons case commences only when the Court takes cognizance of a complaint and had ordered issue of process for the accused to appear. There is a clear distinction between an enquiry and a trial as would be evident from the scheme of the Criminal Procedure Code. In Chandra Deo Singh v. Prokash Chandra Bose : 1SCR639 . the Supreme Court has discussed the scope of Section 202, Criminal Procedure Code and pointed out that it is clear from the scheme of Chapter XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued and that an enquiry under Section 208, Criminal Procedure Code can in no sense be characterised as a trial for the simple reason that in law there could be but one trial for an offence. In Haveli Ram v. Municipal Corporation of Delhi , it has been held that the withdrawal of a complaint may be made either even before process for summoning the accused is issued, or after the process has been issued, but before the accused has been served and has appeared, or after he has appeared, and that Chapters XVII and XX should not be read in separate and isolated manner, but must be read collectively with Section 403, Criminal Procedure Code. But I have very grave doubts whether Section 248, Criminal Procedure Code can be invoked even in a summons case by a complainant, when the case is still in the stage of the proceedings covered by Chapter XVI of the Code of Criminal Procedure, in other words, where the stage of issue of process had not reached The proper order for a Magistrate to pass before that stage is reached is to dismiss the complaint and not to pass an order of acquittal. The acquittal of the accused in C.C. No. 3464 of 1965 on the file of the Sub-Magistrate, Sankari, cannot operate as a bar to the trial of the accused in P.R.C. No. 22 of 1965 on the file of the same Court.
8. But if the accused in this case had been acquitted after process had been issued to them, they would be entitled to plead autrefois acquit. It would be possible for close relations, as the complainant, and the accused in this case, to compromise or compound grave offences by following the procedure adopted in this case and plead autrefois acquit in a case regularly filed on a police charge-sheet and thus obstruct the administration of justice. It is on account of this grave concern about the purity of the administration of justice, I had to take up suo motu to consider the validity of the acquittal of the accused In C.C. No. 3464 of 1965 on the file of the Sub-Magistrate Sankari. I am satisfied that the procedure adopted by the learned Sub-Magistrate is wholly irregular.
9. The complaint given by Chinna Goundan was in respect of an offence under Section 307, Indian Penal Code, which could not be tried by the Sub-Magistrate Sankari. The Sub-Magistrate could enquire into the complaint only as a P.R.C. case. It appears from the cause title given in the complaint as well as the petition filed by the complainant for the withdrawal of the case, that the case has been treated as a P.R.C. case. But there is no entry in the P.R.C. Register of the Court. There is an endorsement by the Magistrate on the first page of the complaint that the case was taken on file under Section 323, Indian Penal Code. It appears from the endorsement that it was made on the date of the complaint, 15th September,' 1965. But there is no entry in the C.C. Register that any complaint was taken on file on 15th September, 1965. It appears from the C.C. Register that No. 3464 of 1965 was taken on file only on 20th September, 1965, and was disposed of on the same date. I have very grave doubts whether the case was taken on file under Section 323, Indian Penal Code, on 15th September, 1965. The withdrawal petition could not have been filed on 20th September, 1965, with a cause title showing that it was a P.R.C. case of 1965, if really the case had been treated as a C.C. case even on 15th September, 1965. The endorsement purported to have been made by the Sub-Magistrate on 15th September, 1965, is as follows:
Take the case on file under Section 323, Indian Penal Code, Whereas I am of opinion that it is necessary to ascertain the truth of the allegations in the complaint. Issue of process to accused is postponed. Post the complaint for enquiry to 24th September, 1965.
The complaint in this case in so far as the serious charge under Section 307, Indian Penal Code, is concerned, should be deemed to have been dismissed on 15th September, 1965, as the case was taken on file only under Section 323, Indian Penal Code, there is nothing in Chapter XVI of the Code of Criminal Procedure to warrant' the procedure adopted by the Sub-Magistrate in dismissing the complaint in s6. far as it related to the grave charge made in the complaint for the minor offence. In other words, Section 202, Criminal Procedure Code, does not contemplate' the Magistrate rejecting part of the complaint as not true and holding an enquiry about the truth of the remaining part of the complaint. It is open to the Magistrate to issue process to the accused on the complaint and the sworn statement of the complainant but if he entertains any doubt about the truth of the complaint, it is open to him to postpone the issue of the process in order to hold an enquiry under Section 202, Criminal Procedure Code. I have hot come across any case in which such an enquiry has been confined to part of a complaint, after the remaining part of the complaint has in effect been dismissed. A dismissal of the. complaint can be made only under Section 203, Criminal Procedure Code, and it would be inappropriate to dismiss the complaint even in part when the enquiry under Section 202, Criminal Procedure Code, is still pending. But evidently the Sub-Magistrate wanted to clutch at the jurisdiction of trying the case by reducing the offence to be one under Section 323, Indian Penal Code, and allowing the parties to compound the offence. Such a procedure is wholly irregular and it is strongly deprecated. It appears from the G.C. Register that the case was taken on file only on 20th September, 1965. Evidently on that date the endorsement dated 15th September, 1965, and the order of acquittal dated 20lh September, 1965, have all been made. But even assuming that the endorsements dated 15th September, 1965, and the order of 20th September, 1965, were made on the respective dates and that the Registers of the Court had not been maintained properly, the procedure adopted by the learned Sub-Magistrate is totally illegal. According to the complainant, both the accused caught hold of him and threw him into the well saying that it would be better if he was done away with, and that he was rescued by the neighbours, who came on hearing his alarm. If these facts are true, the accused would be, clearly guilty of attempt to murder. It is true the complainant is alleged to have stated in the sworn statement that he know swimming. I am not sure whether the evidence has been recorded correctly as there was no necessity for him to mention that he knew swimming. But even if he knew swimming, it would not be sufficient to reduce the offence from one under Section 307, Indian Penal Code to one under Section 323, Indian Penal Code, unless the accused knew that the complainant knew swimming and they merely wanted to give him a ducking. But these are matters to be considered by the Sessions Court and not by the Committing Sub-Magistrate.
10. The learned Advocate for the accused referred to the decision in D. Stephen v. Nosibella : 1951CriLJ510 in support of his contention that the revisional jurisdiction conferred on the High Courts under Section 439, Criminal Procedure Code, is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal and that it would be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. But it is clear from what I have stated that the order of the Sub-Magistrate acquitting the accused in P.R.C. case by clutching at jurisdiction by reducing the offence to one under Section 323 Indian Penal Code, is manifestly illegal and requires to be corrected. In Chinnaswami v. State of Andhra Pradeshb : 3SCR412 the Supreme Court has pointed out that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. It. was pointed out in that decision that it was not possible to lay down the criteria for determining such exceptional cases which could cover all contingencies. In Matukdhari Singh v. Janardan Prasad (1966) 1 S.C.J. 225 : (1966) M.L.J 140, it has been held that if the justice of the case clearly demands it, the High Court may set aside an order of acquittal and that a case of omission from the charge of a serious offence prima facie disclosed by evidence is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence if framed, would have ousted the Court of trial Of its own jurisdiction. If the case had been taken on file under Section 307, Indian Penal Code, as it ought to have been done, on the facts alleged by the complainant and spoken to in his sworn statement, the Sub-Magistrate would have no jurisdiction to try the case, but only to held a preliminary enquiry. In Raimen Ho v. State : AIR1965Ori6 the complainant preferred a complaint to the police and the Magistrate against the two persons under Section 324, Indian Penal Code. But the Magistrate took the Case on file on the private complaint under Section 323, Indian Penal Code, and the police filed a charge-sheet under Section 324, Indian Penal Code, and when both the cases came up for hearing, the complainant filed a petition before the Magistrate stating that he was with drawing his case as the police had preferred a charge-sheet. The order of the Magistrate acquitting the accused under Section 248, Criminal Procedure Code, like the one in this case, was not legal or proper and the High Court in the exercise of its revisional jurisdiction sue main set aside the order and substituted another order in the following words:
Hence this case is merged with C.R. Case No. 118 of 1961 which alone will be proceeded with hereafter.
Thus the jurisdiction of this Court to set aside the order of acquittal in C.C. No. 3464 of 1965 cannot be questioned. For the foregoing reasons, the order of acquittal is set aside.
11. The learned Advocate for the accused relied on the decision in Raimen Ho v. State : AIR1965Ori6 and contended that there should be a retrial of P.R.C. No. 22 of 1965. It should however be noted that the wrong acquittal of the accused under Section 248, Criminal Procedure Code, in the case cited would operate as a bar to the trial of the accused in the case taken on file on the police charge-sheet till the acquittal was set aside and hence retrial of the case taken on file on the police charge-sheet was ordered. But in the present case I have definitely found that the wrong order of acquittal of the accused in C.C. No. 3464 of 1965 on the file of the Sub-Magistrate, Sankari, cannot operate as a bar to the trial of the accused in the P.R.C. case. There is therefore no need to order a retrial of the P.R.C. case. But, as I am informed that the complainant alone has been examined in part, there could really be no objection to the retrial of the P.R.C. case as prayed for by the learned Advocate for the accused, and in fact, it was not opposed by the learned Public Prosecutor. P.R.C. No. 22 of 1965 on the file of the Sub-Magistrate, Sankari, is ordered to be retried by the Sub-Magistrate.
12. The learned Advocate for the accused relied on the Bench decision in Perumal v. Chithanathan 1965 M.L.J. 478 in support of his contention that there should be separate enquires before the Sub-Magistrate or; the police charge-sheet and on the private complaint of Chinna Goundan as the former enquiry has to be held under Section 207-A, Criminal Procedure Code, while the latter under Section 207, Criminal Procedure Code, though they are against the same accused and relate to the same transaction, and the trial of the cases could be combined in the Sessions Court as indicated in Banwari v. State of U.P. (1962) M.W.N. 107 He also relied on the decision of the Supreme Court in Chhadawilal Jain v. State of Uttar Pradesh (1960) S.C.J. 901 : (1960) M.L.J. 620 where it was pointed out that non-compliance with section,208, Criminal Procedure Code, in a case initiated on a private complaint would vitiate the commitment and could not be cured under Section 537, Criminal Procedure Code. But, in my view, it is really unnecessary to order an enquiry on the private complaint filed by Chinna Goundan before the Sub-Magistrate as complaint filed before the Police had been investigated by the police, who have filed a charge-sheet, and it forms the subject-matter of the P.R.C. case. The learned Advocate for the complainant and the learned Public Prosecutor also stated that having regard to the facts of this case, it is not necessary to order any further enquiry on the private complaint filed by Chinna Goundan, though this Court might set aside the order of acquittal as wrong.
13. For the foregoing reasons, Crl.R.C. No. 178 of 1966 is allowed and the acquittal of the accused in C.C. No. 3464 of 1965, on the file of the Sub-Magistrate, Sankari, is set aside but no further enquiry is ordered in view of the pending enquiry on the police charge-sheet. Crl.M.P. No. 3247 of 1965 to quash the proceedings in P.R.C. No. 22 of 1965 on the file of the Sub-Magistrate, Sankari is dismissed but the enquiry shall be commenced afresh by the re-calling and re-examination of P.W. 1 from the commencement.