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PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: K.H. ANNEGOWDA & ANR.

DATE OF JUDGMENT08/12/1976

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. GUPTA, A.C.

CITATION:  1977 AIR  357            1977 SCR  (2) 350  1977 SCC  (1) 417

ACT:             Code of Criminal Procedure 1893--S. 494--Scope of Prose-         cution  withdrawn  before Sessions Court--If  amounts  "dis-         charge"  or "acquittal" of accused--Code of Criminal  Proce-         dure  1973--S. 300--if  a bar for fresh prosecution for  the         same offence.

HEADNOTE:             Section  494  of  the Code of  Criminal  Procedure  1893         provides that any Public Prosecutor may, with the consent of         the  Court, in cases tried by jury before the return of  the         verdict  and  in  other cases before the  judgment  is  pro-         nounced. withdraw from the prosecution of any person  either         generally  or in respect of any one or more of the  offences         for which he is tried and upon such withdrawal--                          (a) if it is made before a charge has  been                       framed the accused shall be discharged; and                          (b) if it is made after the charge has been                       framed  or  when under the Code no  charge  is                       required, he shall be acquitted.             In the instant case, the committing Magistrate framed  a         charge  against  the  respondents for  having  committed  an         offence  under S. 302 read with s. 34 I.P.C.  and  committed         them  for  trial by a Sessions Court.   The  Sessions  Judge         granted permission sought by the Public Prosecutor to  with-         draw  from  the  prosecution under s. 494 of  the  Code  and         "discharged" the respondents.             After fresh investigation a new charge sheet was  filed.         By  then the Code of Criminal Procedure 1973 had  come  into         force. Following the provisions of the new Code, the commit-         ting  Magistrate  committed the respondents to  stand  trial         before  the Sessions Court for the same offence.   When  the         case  came up for trial, the respondents contended  that  by         virtue of the earlier orders of the Sessions Court, they had         been acquitted and that they were not liable to be prosecut-         ed again for the offence in view of s. 300 of the new  Code.         This  was rejected on the ground that they had earlier  been         "discharged" and not acquitted and that s. 300 had no appli-         cation to their case. The High Court allowed their  revision         application  holding  that  since the  withdrawal  from  the         prosecution  in the earlier case was made after  the  charge         had been flamed, the respondents had been acquitted and  the

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       bar of s. 300 was attracted.         Dismissing the appeal,             HELD: The High Court was right in holding that by reason         of  the order of the Sessions judge granting consent to  the         withdrawal  from  the prosecution in the earlier  case,  the         respondents  were acquitted and in view of s. 300 they  were         not liable to be tried again for the same offence.  [356B]             (1)  Section 484 of the new Code provides that  where  a         trial is pending immediately before the commencement of  the         new Code, it shall be proceeded with in accordance with  the         provisions  of the old Code as if the new Code were  not  in         force.  [352H]             In  the instant case, when the new Code came into  force         the  case was pending before the Court of Session for  trial         and so was liable to be tried according to the old Code.  It         was for this reason that the withdrawal application was made         under s. 494 of the old Code.  [353A-B]             (2) (a) When the prosecution against an accused  commit-         ted   for trial  is allowed to be withdrawn by the Court  of         Session under s. 494 of the old Code,         351         the withdrawal of the prosecution would be after the framing         of the  charge against the accused and it must result in the         acquittal  of  the accused under el. (b)  of  that  section.         [355G]             (b)  The charge against an, accused under the  procedure         prescribed  in  the new Code is to be framed for  the  first         time  by the Court of Session while according to the  proce-         dure prescribed under the old Code, the charge is framed  by         the committing Magistrate and the Court of Session is merely         given  the vower to alter or amend the charge, if it  thinks         necessary to do so.  Therefore, when under the old Code, the         Court of Session commences the trial of an accused, there is         already  before it a charge framed by the committing  Magis-         trate and it is that charge that is required to be read  out         and explained to the accused. and  on  which the plea of the         accused is required to be taken. [355D-F]             (c)  In the instant case, the Judicial  Magistrate  fol-         lowed this procedure and after framing the charge  committed         the respondents for trial.  [354G]             Queen  Empress  v. Sivarama, 12 Mad. 35 and In  re.  Ve-         layudha Mudali, A.I.R. 1949 Mad 508, approved.

JUDGMENT:         CRIMINAL  APPLLATE  JURISDICTION: Criminal Appeal   No.  361         1975.             (Appeal  by  Special Leave from the Judgment  and  Order         dated  the 19th Sept., 1975 of the Karnataka High  Court  in         Criminal Petition No. 52 of 1975.)         D. Mookerjee and B.R.G.K. Achar, for the appellant.         H.B. Datar and R.B. Datar, for respondents.         The Judgment of the Court was delivered by             BHAGWATI,  J.,   This appeal by special leave  raises  a         short    but  interesting question of law  relating  to  the         interpretation of certain provisions of the Code of Criminal         Procedure, 1898 (hereinafter referred to as the "Old Code").         The  facts  giving  rise to the appeal are few  and  may  be         briefly stated as follows.             One  Bodegowda was murdered and in regard to this  inci-         dent    a case was registered at the Police Station on  13th         October,  1973  as Crime No. 62 of 1973.  The police  inves-         tigated the case and after the investigation was complete, a         charge-sheet was filed against the respondents in the  Court

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       of Judicial Magistrate, 1st Class Chickmagalur and the  case         was  registered  as C.C. No. 2319 of   1973.    The  learned         Magistrate held an inquiry in accordance with the provisions         of  Chapter XVIII of the old Code and being of  the  opinion         that  the  respondents should be committed  for  trial,  the         learned Magistrate framed a charge  against the  respondents         for having committed an offence under section 302 read  with         section34  of the Indian Penal  Code.   The  learned  Magis-         trate then read and explained the charge to the  respondents         and after giving an opportunity to the respondents to.  give         in  a  list the names of witnesses whom they  wished  to  be         summoned  to give evidence, the learned Magistrate  made  an         order committing the respondents  for trial by the Court  of         Sessions,  Chickmagalur.   This order of committal was  made         on  15th March 1974 and in pursuance of it, the  records  of         the case were forwarded to the Court of Sessions, Chickmaga-         lur where they reached on 23rd March, 1974 and the case  was         registered as S.C. No. 5 of 1974.  The Sessions Judge  fixed         the  trial  of the case on 15th July, 1974 but  before  that         date, the Public Prosecutor filed an         352         application  on  29th June, 1974 praying for  permission  to         withdraw  from the prosecution under section 494 of the  old         Code.   The learned Sessions Judge by an order passed on the         same  day  accorded permission to the Public  Prosecutor  to         withdraw from the prosecution and ’discharged’ the  respond-         ents  in respect of the offence charged against  them.   The         State  thereafter ordered fresh investigation into  the  of-         fence and ha consequence of such investigation, a new charge         sheet  was  filed against the respondents  and  three  other         accused  in  the  Court of Judicial  Magisrate,  1st  Class,         Chickmagalur.    Since this chargesheet was filed after  1st         April,  1974  when  the Code  of  Criminal  Procedure,  1973         (hereinafter referred to as "New Code") had come into force,         the    learned Magistrate, following the provisions  of  the         New  Code,  committed the respondents and  the  other  three         accused  to stand their trial before the Court of  the  Ses-         sions  Judge,  Chickmagalur for the same offence.  When  the         case  came  up for hearing before the  Sessions  Judge,  the         respondents made an application contending that by virtue of         the  order dated 29th June, 1974 made by the Sessions  Judge         under section 494 of the Old Code, the respondents had  been         acquitted and they were, therefore, not liable to be  prose-         cuted  again  for the same offence in view  of  section  300         of the New Code.   The Sessions Judge rejected the  applica-         tion,  taking the view that the respondents were  discharged         and not acquitted under the Order dated 29th June, 1974 and,         therefore,  section 300 of  the New Code was not  applicable         and there was no bar against their fresh prosecution for the         same  offence.   The respondents challenged  this  Order  by         preferring a revision application to the High Court.    This         revision  application  was allowed and the High  Court  held         that though the Order passed by the Sessions Judge  directed         that  the respondents be ’discharged’, the legal  effect  of         this order was to bring about the acquittal of the  respond-         ents  since  the withdrawal from the  prosecution  was  made         after the charge had been framed and the respondents  having         been  acquitted under that Order, the bar of section 300  of         the  New  Code was attracted and the respondents  were   not         liable  to be prosecuted again for the same offence.    This         order  made by the High Court is challenged in  the  present         appeal preferred by the State  with  special leave  obtained         from this Court.             It may be pointed out that before the High Court it  was         contended  on  behalf  of the State that  the  earlier  case

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       before  the  Sessions  Judge, viz., Sessions Case No.  5  of         1974,  was governed by the provisions of the new  Code  and,         therefore. in view of section 228 of the new Code, t was the         obligation  of the Sessions Judge to frame a charge   before         proceeding with the trial and since the withdrawal from  the         prosecution  was effected before the framing of such  charge         by  the  Sessions  Judge, the order passed by  the  Sessions         Judge  amounted to an order of discharge and not of  acquit-         tal.   This  contention  was, however, not  pressed  at  the         hearing of the appeal before us and it was conceded, and  in         our  opinion rightly, that the earlier case before the  Ses-         sions  Judge was governed by the provisions of the old  Code         and the new Code had no application to  it.   Section 484 of         the new Code clearly provides that where a trial is  pending         immediately  before  the commencement of the  new  Code,  it         shall  be proceeded with in accordance with  the  provisions         of the old Code as if the new Code were not in force.   Here         in the present case the Judicial Magistrate had already made         an   order of.         353         committal  on 15th March, 1974 and pursuant to  that  order,         the  records of the case had reached the Court of  the  Ses-         sions  Judge on 23rd March, 1974.  The case was,  therefore,         already  before the Court of Sessions  prior to  1st  April,         1974  and it was pending before that court for trial on  1st         April,  1974  when  the new Code came into  force.    It  is         immaterial as to when the case was actually registered and a         number  given to it.   Since the case was pending for  trial         before  the  Sessions    Court on 1st April,  1974,  it  was         liable  to be tried in accordance with.  the  provisions  of         the old Code and it was for this reason that the application         for  withdrawal  from the prosecution was also made  by  the         Public Prosecutor under section 494 of the old Code and  not         under    the corresponding provision of the new Code.   Sec-         tion 494 of the old Code provides that any Public Prosecutor         may,  with the consent of the Court, in cases tried by  jury         before the return Of the verdict and  in other cases, before         the  judgment is pronounced, withdraw from. the  prosecution         of  any person either generally or in respect of any one  or         more  of the offences for which he is tried and the  section         then goes on to add that:                       "upon such withdrawal,--                               (a) if it is made before a charge  has                       been  framed, the accused shall be  discharged                       (in respect of such offence or offences);                              (b)  if it is made after a  charge  has                       been framed  or when under this Code no charge                       is  required he shall be acquitted in  respect                       of such offence or offences) ."            The  withdrawal from the prosecution in the present  case         having been made under this section, it is clear that if  it         was made before   a charge was framed, the respondents would         be  discharged but if it was made a charge had been  framed,         the  consequence  would be that  the  respondents  would  be         acquitted.   It,  therefore,  becomes  material  to  inquire         whether at the date when the withdrawal from the prosecution         was  made, a charge had been framed against the  respondents         or  not.  Whether the order of the Sessions  Judge  granting         consent  to the withdrawal from the prosecution amounted  to         an  order  of discharge or acquittal would depend  upon  the         answer  to this question.  It may be pointed out that it  is         of  no  consequence  that the Sessions  Judge  directed  the         respondents  to be ’discharged’ because if the legal  effect         of  the order was to acquit the respondents, then the incor-         rect  use of   the expression ’discharged’ by  the  Sessions

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       Judge  would  not alter the legal position and  convert  the         order of acquittal into one of discharge.         Now,  in order to determine whether the withdrawal from  the         prosecution  was  made before the framing of the  charge  or         after, it is necessary to notice the scheme of the  relevant         provisions  of the old Code. Sessions Case No. 5 of 1974  in         which the withdrawal was made was committed to the  Sessions         Court  by  the Judicial Magistrate under the  provisions  of         Chapter  XVIII  of the old Code. The proceeding  before  the         Judicial  Magistrate was instituted on a police  report  and         the  learned Magistrate, therefore, followed  the  procedure         specified in section 207A. This section lays down a  special         procedure to be adopted in proceedings instituted on  police         report  with  a  view to expeditious  disposal  of  criminal         cases.  Sub-section  (1)  provides that the Magistrate, on         354         receipt of the report forwarded under section 173, shall fix         a date for the purpose of holding an enquiry and sub-section         (2) empowers the Magistrate to issue process for  compelling         the  attendance  or  any witness or the  production  of  any         document.   The Magistrate is required by sub-section (3) to         satisfy himself at the commencement of the enquiry that  the         documents referred in section 173 have been furnished to the         accused.   Sub-section (4) then requires the  Magistrate  to         proceed  to.  take the evidence of such persons  as  may  be         produced  by  the  prosecution as witnesses  to  the  actual         commission  of the offence and also empowers the  Magistrate         to  take the evidence of any other witness for the  prosecu-         tion if he thinks it necessary to do so in the interest   of         justice.  The accused  is given  liberty  under  sub-section         (5)  to cross-examine the witnesses examined under  sub-sec-         tion  (4)  and subsection (6) provides that  the  Magistrate         shall, if necessary, examine the accused for the purpose  of         enabling  him to explain any circumstance appearing  in  the         evidence against him and thereafter give to the  prosecution         and the accused an opportunity of being heard. If the Magis-         trate, at the end of this procedure, feels that there is  no         ground for committing the accused for trial, he is bound  to         discharge  the  accused under subsection  (6).    But  where         "upon  such  evidence being taken.,   such  documents  being         considered,  such  examination (if any) being made  and  the         prosecution and the accused being given an opportunity    of         being  heard,"  the  Magistrate forms an  opinion  that  the         accused  should  be  committed for  trial,  sub-section  (7)         provides that the Magistrate shall frame a charge under  his         hand  declaring  with what offence the accused  is  charged.         Sub-section  (8)  then requires the Magistrate to  real  and         explain the charge to the accused and to give a copy thereof         to  him  free of cost.   Sub-section (9) provides  that  the         accused shall then be required to give in at once, orally or         in writing, a list of the persons, if any, whom he wishes to         be  summoned  to  give evidence at the trial  and  when  the         accused  on  being required to. give the  list  under   sub-         section  (9)  declines to do so., or gives  such  list,  the         Magistrate  is empowered under sub-section (10) to  make  an         order  committing  the  accused for trial by  the  Court  of         Session.    It  will thus be seen that,  according  to  this         procedure, the Magistrate is required to frame a charge  and         to read and explain it to the accused before making an order         of  committal and the accused is in fact committed to  stand         his  trial  before  the Court of Session on  the  charge  so         framed.    This was the procedure followed by  the  Judicial         Magistrate  in the present case and in accordance  with  it,         the Judicial Magistrate framed a charge against the respond-         ents  and committed them for trial to. the Court of  Session

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       on this charge.         The  procedure to be followed by the Sessions Court when  an         accused is committed to it for trial is laid down in Chapter         XXII of  the old Code.   Section 271 provides that when  the         court  is ready to commence trial, the accused shall  appear         or  be brought before it  and the charge shall be  read  out         and  explained to him and he shall be  asked whether  he  is         guilty  of the offence charged or claims to be tried.   That         is  the  first  step to be taken by the  Sessions  Court  in         relation to the case committed to it for trial.  Nov,  obvi-         ously,  the charge that is required to be read out  and  ex-         plained  to the accused is the charge  that has been  framed         by the Committing Magistrate under sub-section (7)         355         of  section 207A.   There is no provision in  Chapter  XXIII         which  requires the Sessions Court to frame a charge  before         proceeding with the trial of the accused.   That is  plainly         unnecessary because a charge is already framed by the Magis-         trate when he commits the accused for trial to the  Sessions         Court and that is the charge on which the Sessions Court  is         to try the accused.  Of course, the Sessions Court is  given         an  overriding  power under section 226 that when  it  finds         that  an accused is committed for trial without a charge  or         the charge is imperfect or erroneous, it may frame a  charge         or  add to or otherwise alter   the charge, as the case  may         be, having regard to the rules contained in the old Code  as         to  the framing of charges.   But this is only  an  enabling         power to frame a charge where, for some reason or the other,         no charge has been framed by the committing Magistrate or to         correct a charge where the charge is imperfect or erroneous.         It  does  not say that in every case the  Court  of  Session         shall  frame a new charge before proceeding with the  trial.         On the contrary, it clearly postulates that ordinarily there         would be a charge framed by the committing Magistrate and it         is  on that charge that the accused would be  tried,  unless         the  Court of Session finds it necessary to alter  or  amend         the  charge.    It is interesting to compare  the  procedure         under the new Code where there is no provision for framing a         charge by the committing magistrate and it is only when  the         Court of Session to which the case is committed finds, after         considering the record of the case and the documents submit-         ted  therewith  and  after hearing the  submissions  of  the         accused  and   the  prosecution, that there  is  ground  for         presuming that, the accused  has committed an offence  which         is  exclusively triable by the Court of Session, that it  is         required  by section 220 of the new Code to frame  a  charge         against  the accused.  The charge against the accused  under         the procedure prescribed in the new Code is to be framed for         the  first time by the Court of Session while  according  to         the procedure prescribed under  the old Code, the charge  is         framed by the committing Magistrate and the Court of Session         is  merely given the power to alter or amend the charge,  if         it thinks necessary to do so.   It is, therefore, clear that         when the Court of Session commences the trial of an accused,         there is already before it a charge framed by the committing         Magistrate and it is that charge, unless altered or  amended         under  section  226, that   is required to be read  out  and         explained  to the accused and on which the plea of  the  ac-         cused  is required to be taken.   It must follow  inevitably         as a necessary corollary from this proposition that when the         prosecution  against an accused who has been  committed  for         trial  is  allowed to be withdrawn by the Court  of  Session         under  section 494, the withdrawal of the prosecution  would         be  after the framing of the charge against the accused  and         it must result in the acquittal of the accused under  clause

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       (b) of that section.             We find that this view which we are taking has prevailed         with  the  Madras High Court since the last about  eight  or         nine  decades.   The Madras High Court held as far  back  as         1888 in  Queen-Empress  v. Sivarama(1) that where an accused         is committed to stand his trial before a court of session on         a Charge and the prosecution is withdrawn by         (1) 12 Mad. 35.         356         the  public  prosecutor  with the consent of  the  court  of         session  under  section 494, the accused is entitled  to  be         acquitted  and  not merely discharged.   The same  view  was         reiterated  by  the  Madras High Court in  In  re  Velayudha         Mudali(1).   We  are in agreement with the   view  taken  in         these two decisions of the Madras High Court.             We  accordingly  affirm the decision of the  High  Court         holding  that by reason of the Order dated 29th  June,  1974         passed  by the Sessions Judge granting consent to the  with-         drawal  from  the prosecution in the earlier case,  the  re-         spondents were acquitted and in view of section, 300 of  the         new  Code,  they were not liable to be tried again  for  the         same offence and dismiss the appeal.         P.B.R.                                                Appeal         dismissed.          (1) A.I.R 1949 Mad. 508.         357