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Hari Dayal Singha Vs. Bhajan Chandra Saha - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGuwahati High Court
Decided On
Judge
Reported in1961CriLJ296
AppellantHari Dayal Singha
RespondentBhajan Chandra Saha
Cases ReferredSukum Ram Koch v. Krishna Deb Sarma
Excerpt:
- .....procedure in this case when the cri. p.c. prescribes for an offence under section 489 i. p. c that summons procedure should be followed.even in warrant cases it is not section 253 cri. p.c. which would apply when the complainant is absent. the discharge of the accused in such a ease is not under section 253,. but under section 259. but we need not go into that question at all in this case, as it is clearly a summons case and the magistrate had no authority to dismiss a complaint and discharge the accused either under section 253 or 259 cri. p.c. the discharge of the accused must therefore be treated as an acquittal under section 247 cri. p.c.even if the magistrate has used the word 'discharged' we have to treat it as acquittal under section 247 cri. p.c. the magistrates will do well to.....
Judgment:
ORDER

T.N.R. Tirumalpad, J.

1. This is an application under Section 561-A Cri. P.C. for quashing the proceedings before Shri K. P. Datta, Magistrate First Class, Agartala in Criminal Case No. 7S7 of 1957.

2. The respondent gave Criminal complaint on 7-6-57 against the petitioner under Section 489 I.P.C. before the said Magistrate in respect of the Chassis and Engine of a motor vehicle. The Magistrate registered the case as C. R. Case No. 424 of 1957. The Magistrate examined the complainant and issued summons to the petitioner to appear before him on 26-6-1957. The petitioner appeared on that date.

It was a summons case and on the appearance of the petitioner, the Magistrate should have-followed the procedure under Section 242 Cri. P.C. and stated to him the particulars of the offence of which he was accused and asked him if he has any cause to show why he should not be convicted. But this Magistrate did not follow the procedure. In fact, I have had occasion to find in many summons cases in this Territory that the Magistrates do not follow the provisions of Section 242 Cri. P.C. which are imperative.

It has to be impressed on every Magistrate that the procedure prescribed therein should be strictly followed and as soon as the accused person appears or is brought before the Magistrate, the substance of the charge against him shall be stated to him and he shall be asked to plead. This Magistrate called upon the respondent to take process to summon the P. Ws. and posted the case to 28-6-1957 for fixing a date of hearing. On 28-6-57 he posted the case for hearing to 17-7-57. Actually, there is no point in posting a case for hearing without knowing the plea of the accused person.

The Magistrates will do well to keep in mind the provisions of Sections 243 and 244 Cri. P.C. It the accused admits the offence then the examination of witnesses becomes unnecessary. It is only if he does not make any such admission that the Magistrate should call upon the complainant to produce his witnesses. Even the very initial procedure of this Magistrate was thus irregular, and not in accordance with the Provisions of Section 242.

3. On 17-7-57, the complainant was absent while the petitioner was present. Thereupon the Magistrate passed an order dismissing the case for want of evidence and discharged the accused I am unable to understand under what provision of law the Magistrate passed such an order. In a summons case, when the complainant is absent in the day appointed for the hearing of the case, there is no provision in the Cri. P.C. to dismiss the complaint or discharge the accused.

Section 247 Cri. P.C. allows the Magistrate either of three courses to be followed in the absence of the complainant. He could acquit the accused or he could adjourn the hearing of the case to some other day or if the personal attendance of the complainant is not necessary, the Magistrate could dispense with his attendance and proceed with the case. The Magistrate did not follow any of these three courses. An explanation will be called for from this Magistrate and he will state under what provision of law he discussed the case and discharged the accused.

4. It was pointed out for the respondent that the Magistrate must be deemed to have adopted warrant procedure in this case and that the discharge of the accused must be treated as having been done under Section 253(2). We have no reason to think that the Magistrate followed the warrant procedure in this case when the Cri. P.C. prescribes for an offence under Section 489 I. P. C that summons procedure should be followed.

Even in warrant cases it is not Section 253 Cri. P.C. which would apply when the complainant is absent. The discharge of the accused in such a ease is not under Section 253,. but under Section 259. But we need not go into that question at all in this case, as it is clearly a summons case and the Magistrate had no authority to dismiss a complaint and discharge the accused either under Section 253 or 259 Cri. P.C. The discharge of the accused must therefore be treated as an acquittal under Section 247 Cri. P.C.

Even if the Magistrate has used the word 'discharged' we have to treat it as acquittal under Section 247 Cri. P.C. The Magistrates will do well to acquaint themselves with the difference in procedure in warrant cases and summons cases and to act in accordance with the provisions of the Cri. P.C. The discharge of the accused in this case will be treated as an acquittal under 'Sec. 247 Cri. P.C.

5. More than 3 months after the said 'discharge' or acquittal the respondent filed another complaint on 26-10-57 before the same Magistrate against the petitioner on the same facts and allegations and adding an explanation as to why he was not present with his witnesses on 17-7-57. The Magistrate registered this case as C. R. Case No 787 of 1957. It was again a complaint under Section 489 I.P.C. The Magistrate issued summons to the petitioner on this complaint and the matter has been pending trial before the Magistrate after various adjournments.

6. It is under these circumstances that the petitioner has come forward with the present application to quash the proceedings in C. R. Case No. 787 of 1957. According to him, the first case C. R. No. 424 of 1957 against him having been dismissed after the issue of summons to him and the petitioner having been acquitted, Section 403 Cri. P.C. is a bar to the filing of a second com-plaint charging him with the same offence on the same facts and allegations.

The learned Advocate for the respondent pointed out that the petitioner has not been acquitted but only discharged and secondly that even if the petitioner is deemed to have been acquitted there was no trial of the case and Section 403 Cri. P.C. would apply only if the petitioner has been tried and acquitted. He would say that a mere acquittal without a trial will not bar a second trial under Section 403 Cri, P.C.

7. I am unable to agree with the contention of the learned Advocate for the respondent. Ill summons case, the trial commences as soon as the Magistrate takes cognizance of the offence and issues summons to the accused. The word 'tried' fir 'trial' has not been defined in the Cri, p. C.

But the heading of Chapter XX Cri. P.C. is 'Of the trial of Summons cases by Magistrates'.

Section 242 in Chapter XX will show therefore that the trial commences as soon as the accused appears or is brought before the Magistrate, Section 247 states that 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 is enough that the summons has been issued. This would indicate that the trial would commence even on the issue of the summons. It follows, therefore, 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.

8. This question has been exhaustively dealt with in the decision of the Madras High Court in 'in Re: Dudekula Lal Sahib' ILR 40 Mad 976 : AIR 1918 Mad 231, wherein it was beld that the withdrawal of a case by the Public Prosecutor under Section 494 Cri. P.C. followed by the acquittal of the accused was sufficient to bar the further trial of the case for the same offence and that though the case was not tried on the merits, the withdrawal of the prosecution after the summons was issued, but before it was served on the accused was sufficient to bar the subsequent dial. It is the leading case on the point.

Though the decision in that particular case was under Section 494 Cri, P.C., it deals with the effect of an acquittal under Section 247 Cri. p. C. In an earlier Madras case B. Kotayya v. K. Venkayya 19 Cri LJ 497: AIR 1918 Mad 212, it had been held that judgment of acquittal following on complainant's default of prosecution under Section 247, Cri, P.C. did not entitle the person acquitted to plead autrefois acquit on a fresh prosecution on the same facts and Section 403 did not operate as a bar to the Court taking cognizance of a second complaint. This view was dissented from in ILR 40 Mad 976: AIR 1918 Mad 231.

9. The view of the Madras High Court in the above mentioned decision has been approved in the decision Shankar Dattatraya v. Dattatrava Sadashiv ILR 53 Bom 693 : (AIR 1929 Bom 408) and it was held that an order of acquittal under Section 247 Cri. P.C. is a final order and Section 403 would bar the trial of the accused on the same facts. It was also held in that decision that proceedings in a summons case commenced against an accused as soon as the Magistrate took cognizance of an offence and the order for summons was issued.

The same Madras view has also been approved by the Calcutta High Court in the decision Sukum Ram Koch v. Krishna Deb Sarma 33 Cal WN 260 : AIR 1929 Cal 189 and it was held that an acquittal under Section 247 Cri. P.C. was an acquittal which would bar further trial under Section 403, It was held in that case by one of the Judges - Graham, J. that it was immaterial whether the acquittal was under Section 247 or under Section 253 Cri, P.C. because the accused has been tried within the meaning of the word in Section 403(D Cri. P.C.

10. There is no doubt therefore that in a summons case where the complaint was dismissed after the; issue of sommons 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 that 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 Cri. P.C. The proceedings before the Magistrate in C. R. Case No. 787 of 1957 are therefore quashed.


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