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PETITIONER: MOHAMMAD SAFI

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 25/03/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SARKAR, A.K. BACHAWAT, R.S.

CITATION:  1966 AIR   69            1965 SCR  (3) 467  CITATOR INFO :  RF         1979 SC  94  (32)

ACT: Code  of  Criminal  Procedure (Act 5 of  1898),  s.  403(1)- Proceedings  before a Special Judge-Erroneous assumption  of want  of  jurisdiction-Acquittal of  accused  after  framing charge-Subsequent trial, if barred.

HEADNOTE: A  charge sheet was filed in the Special  Court  constituted under  the  West  Bengal  Criminal  Law  Amendment  (Special Courts)  Act,  1949, against the appellant  for  an  offence under   s.  409,  I.P.C.  After  the  examination   of   the prosecution witnesses a charge was framed.  Thereafter,  the prosecution  witnesses were cross-examined and  the  accused was questioned under s. 342 of the Criminal Procedure  Code. At  the  time of hearing arguments,  the  Public  Prosecutor placed  before the Special Judge two judgments of  the  High Court  according to which the Special Court could  not  take cognizance upon a charge sheet and that therefore the entire proceedings were without jurisdiction.  Though the case  was in  fact  allotted  to the Special  Judge  by  a  Government notification,  he  held  that  he  had  no  jurisdiction  to proceed, and as the charge had already been framed, made  an order a-,quitting the appellant.  A formal complaint against the  appellant was then preferred by the  Public  Prosecutor before  the successor-in-office of the Special Judge  and  a fresh  proceeding was commenced against the appellant  which ended  in his conviction.  His appeal to the High Court  was dismissed. In  his appeal to this Court, the appellant  contended  that since he was tried and acquitted upon the same facts by  the former  Special  Judge, his trial over again  for  the  same offence was barred. by s. 403 of the Code. HELD:     The trial and eventual conviction of the appellant were valid in law, because, the earlier order of the Special Judge   did  not  amount  to  an  order  of   acquittal   as contemplated  by s. 403(1) It was merely an order putting  a stop to the proceedings. Section  403(1)  can be successfully pleaded as a bar  to  a subsequent  trial  for the same offence or  for  an  offence

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based  on  the same facts, where the accused  had  been  (a) tried  by  a  court (b) of competent  jurisdiction  and  (e) acquitted.   It  is  only  a court  which  is  Competent  to initiate  proceedings or to carry them on that can  properly make  an  order of acquittal which will have the  effect  of barring  a subsequent trial upon the same facts and for  the same  offence.   It  is true that in the  instant  case  the former Special Judge could have properly taken cognizance of offence  because  of  the  allotment  and,  therefore,   the proceedings  before him were in fact not vitiated by  reason of  lack  of jurisdiction.  But where a court  says,  though erroneously, that it was not competent to take cognizance of the  offence, it has no power to acquit that person  of  the offence.  Therefore, the order a-.quitting the appellant was in fact a nullity. [470E; 471A-B, H] Yusofalli  Mulla  Noorbboy v. The King, L.R.  76  I.A.  158, applied. 468 The  fact that a charge had been framed Would not  help  the appellant.   A criminal court is precluded from  determining the  case  before  it  in which a  charge  has  been  framed otherwise   than  by  making  an  order  of   acquittal   or conviction, only where the charge was framed by a  competent court.   But in the present case, since the  former  Special Judge was, on his own view, not competent to take cognizance of  the  offence, he was incompetent to  frame  the  charge. Similarly, the provisions of s. 494 of the Code could not be attracted,   because,  that  provision  also   assumes   the withdrawal  by a Public Prosecutor of a  charge  competently made   and  before  a  court  competent  to  entertain   the withdrawal application. [473C-E]. Moreover, the earlier proceedings could not be deemed to  be a  trial  at all, because, for proceedings to  amount  to  a trial,  they  must be held before a court which is  in  fact competent to hold them and which is not of the opinion  that it has no jurisdiction to hold them. [473E-F]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 18  of 1963. Appeal from the judgment and order dated September 24,  1962 of  the  Calcutta High Court in Criminal Appeal No.  601  of 1960. D.   N. Mukherjee, for the appellant. P.   K. Chakravarti and P. K. Bose, for the respondent. The Judgment of the Court was delivered by Mudholkar,  J. The only point which has been urged  in  this appeal  by certificate from a judgment of the High Court  at Calcutta  is  whether  the  trial  and  conviction  of   the appellant  for  an offence under s. 409, Indian  Penal  Code were  barred  by  the provisions of s. 403 of  the  Code  of Criminal Procedure (hereinafter referred to as the Code). The facts which are not in dispute are these: The appellant was tried for an offence under s. 409,  I.P.C. by  Mr. T. Bhattacharjee, Judge, Birbhum Special  Court  and sentenced  to undergo rigorous imprisonment for four  years. His  conviction was maintained in appeal by the  High  Court but  the sentence was reduced to rigorous  imprisonment  for two  years.  One of the points urged before the  High  Court was  that upon the same facts and with respect to  the  same offence  the  appellant  was  tried earlier  by  Mr.  N.  C. Ganguly, Judge, Birbhum Special Court and acquitted thereof. He  could,  therefore,  not have been tried  over  again  in

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respect of that offence and consequently his conviction  and sentence are illegal. What  actually happened was this.  The appellant who  was  a shed  clerk at Sainthia Railway Station is alleged  to  have committed criminal breach of trust with respect to 8 bags of suji which had been booked by rail at Murarai by one  Bhikam Chand  Pipria,  the  consignee being the  firm  of  Lalchand Phusraj  of Sainthia.  He was alleged to have done  this  in conspiracy  with Ibrahim and Nepal Chandra Das.  We are  not concerned with these two persons 469 and  so we can leave them out of account.  The  offence  was investigated  into and a charge sheet was submitted  against the appellant under s. 409, I.P.C. and two other persons  by the  Officer-in-charge, Government Railway Police,  Asansol. Apparently he filed the charge sheet himself in the court of Judge,  Birbbum Special Court.  However, as set out  in  the order  of Mr. Ganguly acquitting the appellant the case  was distributed  to  the  Birbhum Special  Court  for  trial  by notification  No.  4515-J dated May 8,  1959  (Law  Judicial Department),  Government  of West Bengal.   The  prosecution examined  21 witnesses before him and on August 28, 1959  he framed  a charge against the appellant under s. 409,  I.P.C. The  prosecution witnesses were cross-examined on behalf  of the appellant and the court examined him under s. 342 of the Code.   At the time of the hearing of arguments  the  Public Prosecutor  placed before him a typed copy of a judgment  of the  High Court in Criminal Appeal No. 377 of 1958 in  which it  was  held that a Special Court cannot, in  view  of  the amendment  of  s.  5(1)  of the  West  Bengal  Criminal  Law Amendment (Special Courts) Act, 1949 by Act 27 of 1956  take cognizance  upon  a  charge  sheet  because  it  is  neither entitled  to follow the procedure for trial under  s.  251-A nor can it take cognizancc under s. 190(1)(c) unless in  the latter  case  the  provisions of s. 191  of  the  Code  were complied with.  The attention of the learned Judge was  also drawn to A. P. Misra v. The State(1) where it was held  that where  a magistrate could not legally take cognizance of  an offence   on  the  basis  of  a  charge  sheet  the   entire proceedings before him are without jurisdiction.  In view of these decisions the learned Judge made an order of which the relevant portion runs thus:               "So  the proceeding is  without  jurisdiction.               As the unreported decision of their  Lordships               was  not available at the time of  framing  of               charge, charge was framed against the  accused               person  and the case continued as  usual.   As               the unreported decision of their Lordships has               come to the notice of this Court, the  accused               persons against whom charge was framed  should               be  acquitted.   As the  accused  persons  are               acquitted  because  the entire  proceeding  is               without  jurisdiction I am of opinion that  it               is necessary (sic) to discuss the evidence  on               record and decide the merits of the case." Thereafter  a formal complaint was preferred by  the  Public Prosecutor  on  May 16, 1960 and Mr. Bhattacharjee  who  had succeeded Mr. Ganguly as Judge of the Special Court, Birbhum took  cognizance  of  the  offence  and  commenced  a  fresh proceeding  against all the accused persons,  including  the appellant.  He framed a charge under s. 409, I.P.C.  against the  appellant  and eventually convicted and  sentenced  him with  respect to it, as already stated, and the appeal  from the conviction was dismissed by the High Court. (1)  [1958] Cr.  L.J. 1386.

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470   In order to appreciate the argument advanced before us  by Mr.  D.  N.  Mukherjee  on behalf of  the  appellant  it  is necessary to set out the provisions of sub-s. (1) of s.  403 of the Code.  They are as follows;               "A  person who has once been tried by a  Court               of  competent jurisdiction for an offence  and               convicted or acquitted of such 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 236 or for which he  might               have been convicted under section 237." These  provisions  are based upon the general  principle  of auterfois  acquit  recognised by the  English  courts.   The principle  on  which  the right to  plead  auterfois  acquit depends  is that a man may not be put twice in jeopardy  for the same offence.  This principle has now been  incorporated in  Art. 20 of the Constitution.  The defence  of  auterfois acquit, however, has no application where the accused person was  not liable lawfully to be convicted at the first  trial because  the  court lacked jurisdiction.  This is  what  has been  pointed out by the Court of Criminal Appeal in  Thomas Ewart  Flower v. R.(1). From the language used in s.  403(1) of  the  Code  it is clear that  what  can  be  successfully pleaded as a bar to a subsequent trial for the same  offence or  for  an  offence based on the same  facts  is  that  the accused  had  been (a) tried by a court,  (b)  of  competent jurisdiction  and  (c) acquitted of the offence  alleged  to have been committed by him or an offence with which he might have  been charged under s. 236 or for which he  might  have been  convicted under s. 237, of the Code.   Mr.  Mukherjee, however,  says that in so far as competency of the court  is concerned  it was there because the offence in question  was cognizable by a Special Court and Mr. Ganguly made the order of acquittal as Judge of the Special Court.  The  competence of a court, however, depends not merely on the  circumstance that under some law it is entitled to try a case falling  in the particular category in which the offence alleged against the accused falls.  In addition to this taking cognizance of the offence is also material in this regard.  Under the Code of  Criminal  Procedure a court can take  cognizance  of  an offence  only if the conditions requisite for initiation  of proceedings before it as set out in Part B of Chapter XV are fulfilled.   If  they are not fulfilled the court  does  not obtain jurisdiction to try the offence.  In the case  before us  Mr. Ganguly took the view, though erroneously,  that  as one of the conditions requisite for taking cognizance of the offence  was not satisfied he had no jurisdiction  over  the matter.  Having come to that conclusion he had no option but to  put a stop to those proceedings.  It  appears,  however, that he (1)  40 Cr.  App.  R. 189. 471 felt that having already framed a charge the only manner  in which  he could put an end to the proceedings was by  making an order of acquittal.  It requires, however, no argument to say  that  only  a  court which  is  competent  to  initiate proceedings  or to carry them on can properly make an  order of acquittal, at any rate, an order of acquittal which  will have the effect of barring a subsequent trial upon the  same facts  and  for the same offence.  Mr.  Mukherjee,  however, raises two contentions on this aspect of the matter.  In the

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first place, according to him, the view taken by Mr. Ganguly that  he could not have taken cognizance of the offence  was erroneous  as  has been pointed out by this  Court  in  Ajit Kumar  Palit v. State of West Bengal(1) and,  therefore,  he could  legally acquit the appellant.  He further  says  that since  Mr. Ganguly had not only framed a charge against  the appellant  but also examined all the witnesses both for  the prosecution and for the defence and recorded the examination of the appellant he had completed the trial.  In the  second place, he says, that where a charge has been framed  against an  accused person in a warrant case the proceedings  before the  court can end either in acquittal or in conviction  and in  no  other way.  He points out that under s. 494  of  the Code the Public Prosecutor may with the consent of the court withdraw before a certain stage is reached, the  prosecution of  any  person and that the only order which the  court  is competent to make is to acquit the accused if the withdrawal is made after a charge has been framed. It  is true that Mr. Ganguly could properly take  cognizance of  the offence and, therefore, the proceedings  before  him were in fact not vitiated by reason of lack of jurisdiction. But  we cannot close our eyes to the fact that  Mr.  Ganguly was  himself of the opinion-and indeed he had no  option  in the matter because he was bound by the decisions of the High Court-that  he could not take cognizance of the offence  and consequently was incompetent to try the appellant.  Where  a court comes to such a conclusion, albeit erroneously, it  is difficult  to  appreciate  how that court  can  absolve  the person arraigned before it completely of the offence alleged against  him.   Where a person has done something  which  is made punishable by law he is liable to face a trial and this liability  cannot  come to an end merely because  the  court before  which he was placed for trial forms an opinion  that it  has  no  jurisdiction  to try him  or  that  it  has  no jurisdiction  to  take  cognizance of  the  offence  alleged against  him.   Where,  therefore,  a  court  says,   though erroneously, that it was not competent to take cognizance of the  offence  it has no power to acquit that person  of  the offence.   An  order of acquittal made by it is  in  fact  a nullity.   In this connection we might profitably  refer  to the  decision  in Yusofally Mulla Noorbhoy v.  The  King(2). That was a case where there was no (1) [1963] 1 Supp.  S.C.R. 953. (2) L.R. 76 I.A. 158. 472 valid  sanction  as required by cl. 14 of the  Hoarding  and Profiteering Prevention Ordinance, 1943 for the  prosecution of the appellant therein on separate charges of hoarding and profiteering.   The  sanction for the prosecution  had  been granted by the Controller General of Civil Supplies who  was authorised to give such sanction by virtue of a notification of  the  Government of India duly published.   Charges  were framed by the Magistrate and thereafter further evidence was called for by the prosecution and some or the witnesses were recalled  for  cross-examination.  On the date  of  hearing, however,  counsel  for prosecution made a statement  to  the following effect:               "In  view  of  the  High  Court  decision   in               Revisional  Application  No. 191 of  1945,  as               this  court  is  not  competent  to  try  this               offence,  he  does  not  wish  to  tender  the               witnesses already examined for further  cross-               examination nor to lead any further evidence."               Thereupon the Magistrate recorded an order  in               the following terms:

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             "Mr.  Mullick’s evidence is deleted.   Accused               acquitted   for   reasons   to   be   recorded               separately."               After  referring to the statement  of  counsel               for  the prosecution and the order made on  it               the Magistrate continued:               "On a perusal of the said decision, however, I               find  that the filing of this charge sheet  by               the  prosecution  itself is  invalid  in  law,               because  the  sanction is signed by  the  Con-               troller-General  under a Notification  of  the               Government of India, and the said Notification               does  not  state  that  the  various  officers               therein mentioned are not below the rank of  a               District Magistrate.  Thus it is the  incompe-               tence  of the prosecution to  proceed  against               the  accused without sanction as provided  for               in  law.  As, however, the invalidity  of  the               sanction invalidates the prosecution in court,               the accused was acquitted." The  Government  filed  an  appeal  against  the  order   of acquittal The High Court allowed it and set aside the orders of the Magistrate acquitting the appellant and directed that the  case  should  be tried  by  another  Magistrate  having jurisdiction  to  try  it and deal with  according  to  law. Against the decision of the High Court the appellant took an appeal to the Privy Council.  The Privy Council accepted the view  of  the  Federal Court in Basdeo Agar  walla  v.  King Emperor(1)  that  the  prosecution  launched  without  valid sanction is invalid and held that under the common law  plea of auterfois acquit or convict can only be raised where the (1)  [1945] F.C.R. 93.                             473 first  trial  was before a court competent to pass  a  valid order of acquittal or conviction.  Unless the earlier  trial was a lawful one which might have resulted in a  conviction, the accused was never in jeopardy.  The principle upon which the  decision  of  the Privy Council  is  based  must  apply equally to a case like the present in which the court  which made  the order of acquittal was itself of the opinion  that it  had  no  jurisdiction  to  proceed  with  the  case  and therefore the accused was not in jeopardy. As  regards  the second contention of Mr.  Mukherjee  it  is necessary  to point out that a criminal court  is  precluded from  determining the case before it in which a  charge  has been  framed otherwise than by making an order of  acquittal or  conviction only where the charge was framed by  a  court competent  to frame it and by a court competent to  try  the case and make a valid order of acquittal or conviction.   No doubt, here the charge was framed by Mr. Ganguly but on  his own  view  he was not competent to take  cognizance  of  the offence and, therefore, incompetent to frame a charge.   For this  reason the mere fact that a charge had been framed  in this  case  does  not help  the  appellant.   Similarly  the provisions  of s. 494 of the Code cannot be attracted  to  a case of this kind because that provision itself assumes  the withdrawal  by a public prosecutor of a  charge  competently made   and  before  a  court  competent  to  entertain   the application for withdrawal. In  addition  to the competent of the court, s. 403  of  the Code  speaks  of  there having been a trial  and  the  trial having ended in an acquittal.  From what we have said above, it  will be clear that the fact that all the  witnesses  for the prosecution as well as for the defence had been examined before  Mr. Ganguly and the further fact that the  appellant

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was also examined under s. 342 cannot in law be deemed to be a trial at all.  It would be only repetition to say that for proceedings to amount to a trial they must be held before  a court  which is in fact competent to hold them and which  is not of opinion that it has no jurisdiction to hold them.   A fortiori  it would also follow that the ultimate order  made by  it  by whatever name it is characterised cannot  in  law operate  as an acquittal.  In the Privy Council case it  was interpreted  by Sir John Beaumont who delivered the  opinion of the Board to be an order of discharge.  It is unnecessary for  us to say whether such an order amounts to an order  of discharge in the absence of any express provision  governing the matter in the Code or it does not amount to an order  of discharge.  It is sufficient to say that it does not  amount to  an order of acquittal as contemplated by s.  403(1)  and since  the proceedings before the Special Judge  ended  with that  order it would be enough to look upon it merely as  an order putting a stop to the proceedings.  For these  reasons we  hold  that  the trial and  eventual  conviction  of  the appellant by Mr. Bhattacharjee were valid in law and dismiss the appeal. Appeal dismissed. 474