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PETITIONER: RAMEKBAL TIWARY

       Vs.

RESPONDENT: MADAN MOHAN TIWARY & ANR.

DATE OF JUDGMENT: 17/01/1967

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. RAO, K. SUBBA (CJ) SHAH, J.C. SIKRI, S.M. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1156            1967 SCR  (2) 368

ACT:       Code of Criminal Procedure (Act 50 1898), ss.  209(1), 403, 437 and 439--Police complaint of major offence  triable by  Sessions  Court--Magistrate  framing  charge  for  minor offence--Accused  tried  and acquitted of minor  offence  by Magistrate--Sessions  Court  setting  aside  acquittal   and directing  committal  for major offence--Order  of  Sessions Court  confirmed  by High  Court--Jurisdiction  of  Sessions Court--Acquittal of minor offence, if res judicata regarding major offence.

HEADNOTE:      The  police filed a charge sheet against the  appellant and  others for an offence under s. 307, read with  ss.  148 and 149 of the Penal Code.  The Magistrate, after  examining the  prosecution witnesses passed an order under  s.  209(1) Criminal Procedure, Code, that no case under s. 307 was made out,  and decided to try the accused for offences under  ss. 326  and  338,  I.P.C.  After  a  regular  trial  for  those offences, the Magistrate passed another order acquitting the accused.  The prosecution moved the Sessions Judge under  s. 437 Cr.  P.C., and he held that the accused were  improperly discharged of the offence under s. 307 I.P.C., set aside the order  of  acquittal for the offence under ss. 326  and  338 I.P.C., and directed the Magistrate to commit the accused to Sessions  on charges under ss. 307, 148 and 149  I.P.C.  The High Court in ’revision, confirmed the order of the Sessions Judge  with respect to the appellant alone and directed  his committal under s. 307 I.P.C. In  appeal to this Court, the jurisdiction of  the  Sessions Judge to set aside the acquittal and to direct committal was questioned. HELD : (1) The Sessions Judge had jurisdiction to set  aside the  first  order  of  the  Magistrate  and  to  direct  the committal. [373 A] The  order  of  the Magistrate is not an  express  order  of discharge,  of the appellant for the offence under  s.  307, I.P.C.  but is tantamount to an implied order of  discharge. The  language  of s. 437 Cr.  P.C., however,  is  wide,  and

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there is nothing to indicate that the power of the  Sessions Court can be exercised only when the Magistrate had made  an express  order of discharge.  In fact, under s.  209(1)  Cr. P.C.,  such an express order is contemplated only in a  case where  the  Magistrate  comes to  the  conclusion  that  the allegations against the accused do not amount to any offence at all; and not in a case where,, upon the same facts, it is possible  to say that though no offence exclusively  triable by a Court of Session was made out, an offence triable by ’a Magistrate is nevertheless made out. [372 D-E] Nahar Singh v. State, A.I.R. 1952 All. 231(F.B.) and  Sambhu Charan v. State 60 C.W.N. 709, overruled. (2)  The  Sessions Court had no authority to set  aside  the acquittal  with  respect to the offences under ss.  326  and 338, but since the order was affirmed by the High Court, the High Court must be deemed to have itself set aside the order of  acquittal by the Magistrate, under s. 439 Cr. P.C.  [375 G] 369 (3)  In  view of s. 403 (4) Cr.P.C. there could be  a  fresh charge  and  trial  under  s. 307 I.P.C.  in  spite  of  the acquittal  of the appellant on the minor  charges,  because, the Magistrate was not competent to try the offence under s. 307 I.P.C. The general principle of res judicata also, would not apply, because, the order of acquittal by the Magistrate must  be deemed to have been validly set aside by  the  High Court. [376 C; 377 C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 213 of 1964. Appeal  by special leave from the judgment and  order  dated May 8, 1964 of the Patna High Court in Criminal Revision No. 162 of 1961. Nur-ud-din Ahmed and R. C. Prasad, for the appellant. U.   P. Singh, for respondent No. 1. B.   P. Jha, for respondent No. 2. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the  judgment of the Patna High Court dated May 8,  1964  in Criminal Revision No. 162 of 1961 affirming the order of the Additional Sessions Judge of Arrah in Criminal Revision  No. 194  of  1960  ordering the appellant  to  be  committed  to Sessions  for being tried on a charge under S.  307,  Indian Penal Code. It appears that the police submitted a charge-sheet  against the  appellant and 8 others in respect of offences under  s. 307,  read  with ss. 148 and 149, Indian Penal Code  on  the information lodged by Gourishankar Tiwari, alleging that the accused had formed an unlawful assembly and, in  prosecution of the common object, the appellant Ramekbal Tiwary  injured the informant with a gunshot.  The defence of the  appellant was  that  Gourishankar  Tiwari had raided  his  house  with several  other persons and in self-defence he used  his  gun inside  his house as a result of which  Gourishanker  Tiwari received  injuries.   The Magistrate to whom  the  case  was transferred  by  the subdivisional  Magistrate,  started  an enquiry under Ch.  XVIII of the Criminal Procedure Code and, having  examined eleven prosecution witnesses and heard  the arguments  of the parties, decided to try the accused  under s.  251A of the Criminal Procedure Code for  offences  under ss.  326  and 338 of the Indian Penal Code, because  in  his opinion,  the evidence did not make out an offence under  s.

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307,  Indian  Penal  Code.   This  order  was  made  by  the Magistrate  on  March 19, 1960.  Thereafter  the  Magistrate held  a regular trial with regard to charges under  ss.  326 and  338, Indian Penal Code and acquitted the appellant  and the  other accused of those charges by his order dated  July 13, 1960.  On behalf of the prosecution, an Sup.  CI/67-10 370 application in revision was made to the Additional  Sessions Judge  who  allowed the application and set  aside  the  two orders  of the Magistrate dated March 19, 1960 and July  13, 1960 and directed the Magistrate to commit the appellant and the other accused to the Court of Sessions on charges  under ss.  307  and 148, and 307 read with s. 149  of  the  Indian Penal  Code.  The appellant took the matter in  revision  in Revision No. 162 of 1961 before the Patna High Court  which, by  its judgment dated May 8, 1964 held that  the  appellant was improperly discharged by the Magistrate and the order of the  Additional Sessions Judge for his commitment  under  s. 307, Indian Penal Code was therefore justified.  With regard to the other accused persons, the High Court held that there was no evidence to justify their commitment and the order of the  Additional Sessions Judge with regard to these  accused persons was set aside. The  first question involved in this appeal is  whether  the Additional  Sessions  Judge had jurisdiction under  s.  437, Criminal  Procedure  Code to direct the commitment of  the appellant to Sessions Court on a charge under s. 307, Indian Penal Code in the  circumstances of this case. In order to decide this question it is desirable to  examine the  relevant  provisions of the  Criminal  Procedure  Code. Section 437 Criminal Procedure Code states :                "When,  on examining the record of  any  case               under s. 435 or otherwise, the Sessions  Judge               or  District  Magistrate considers  that  such               case  is triable exclusively by the  Court  of               Session  and that an accused person  has  been               improperly  discharged by the inferior  Court,               the Sessions Judge or District Magistrate  may               cause  him to be arrested, any may  thereupon,               instead  of directing a fresh  inquiry,  order               him to be committed for trial upon the  matter               of  which he has been, in the opinion  of  the               Sessions   Judge   or   District   Magistrate,               improperly discharged                Provided as follows :                (a)  that the accused has had an  opportunity               of  showing cause to such Judge or  Magistrate               why the commitment should not be made;                (b)  that if such Judge or Magistrate  thinks               that  the  evidence  shows  that  some   other               offence  has  been committed by  the  accused,               such  Judge  or  Magistrate  may  direct   the               inferior Court to inquire into such offence." Section 207, Criminal Procedure Code provides that in  every inquiry  before  a  Magistrate where  the  case  is  triable exclusively  by a Court of Session or High Court, or,  which in the opinion of the 371 Magistrate, ought to be tried by such Court, the  Magistrate must in any proceeding instituted on a police report, follow the  procedure prescribed in s. 207-A.  Under s.  207-A  the Magistrate, after persuing the police report forwarded under s.  173,  has  to fix a date for  hearing  and  require  the production  of  the accused on that date.  He has  also  the

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power  to  compel the attendance of such  witnesses  or  the production  of  any  document or thing on that  date  if  an application is made in that behalf by the officer conducting the  prosecution.  On the date of hearing,  the  Magistrate, after  satisfying  himself  that  copies  of  the  documents referred to in s. 173 have been furnished, has to proceed to take  the evidence of such persons, if any, as are  produced as witnesses to the actual commission of the offence.  After the  examination of those witnesses and after  their  cross- examination by the accused the Magistrate may, if he  thinks it  necessary to do so in the interest of justice, take  the evidence  of any one or more of the other witnesses for  the prosecution.   He  will  then examine the  accused  for  the purpose  of  enabling  him  to  explain  the   circumstances appearing  in  the evidence against him and  hear  both  the prosecution as well as the accused.  If at that stage he  is of  opinion  that no ground for committing the  accused  for trial  exists  the  Magistrate  can,  after  recording   his reasons, discharge the accused.  If, however, it appears  to the  Magistrate that such person should be tried by  himself or  some other Magistrate he must proceed accordingly.  This contingency  will arise if the Magistrate forms  an  opinion that  no  case exclusively triable by Court  of  Session  is disclosed but a less serious offence which it is within  the competence  of the Magistrate to try is disclosed.  In  that case  the  Magistrate  has to proceed  to  try  the  accused himself  or  send him for trial before  another  Magistrate. Section 209(1), Criminal Procedure Code states :                "209. (1) When the evidence referred to in s.               208, sub-sections (1) and (3) have been  taken               and he has (if necessary) examined the accused               for the purpose of enabling him to explain any               circumstances   appearing  in   the   evidence               against  him,  such Magistrate, shall,  if  he               finds  that there are not  sufficient  grounds               for  committing the accused person for  trial,               record  his reasons and discharge him,  unless               it appears to the Magistrate that such  person               should  be tried before himself or some  other               Magistrate,  in  which case he  shall  proceed               accordingly." It was submitted on behalf of the appellant that if a person is  accused  of a major offence, for example under  s.  307, Indian  Penal  Code, and the Magistrate frames a  charge  of minor  offence, for example under s. 326 or s.  338,  Indian Penal Code, the order of the Magistrate is not tantamount to an  order  of  discharge,  because  the  criminal  case   is proceeding  against  the  accused  on  the  same  facts  and therefore  the  Sessions Judge is not  competent,  under  s. 43n7, 372 Criminal  Procedure  Code, to direct the commitment  of  the accused  to  the Court of Session in respect  of  the  major offence.  We are unable to accept this argument as correct. It  is  true that in the present case there  is  no  express order  of  the Magistrate discharging the appellant  of  the charge  under  s. 307, Indian Penal Code, but in  his  order dated  March 19, 1960 the Magistrate has given  reasons  for holding that no case is made out under s. 307, Indian  Penal Code  in  order to justify an order of  commitment.   It  is manifest  that the order of the Magistrate is tantamount  to an  implied order of discharge and the  Additional  Sessions Judge  had  therefore jurisdiction, under s.  437,  Criminal Procedure Code, to set aside the order of the Magistrate and to  order that the accused should be committed to  trial  in

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the  Court  of  Session on the major charge  under  s.  307, Indian  Penal Code.  There is nothing in the language of  s. 437,  Criminal  Procedure Code from which it could  be  said that the power of the Sessions Court under that section  can be  exercised only when the Magistrate has made  an  express order of discharge.  It is apparent from the language of  s. 209(1)  Criminal  Procedure Code that an  express  order  of discharge  is only contemplated in a case where  the  Magis- trate  comes to the conclusion that the allegations  against the accused do not amount to an offence at all and therefore no question arises of trying him either by himself or by any other  Court.  But the section does not contemplate that  an express  order of discharge should be made in a  case  where upon  the  same facts it is possible to say that  though  no offence  exclusively triable by a Court of Session  is  made out, an offence triable by a Magistrate is nevertheless made out and the Magistrate thereafter proceeds with the trial of that  offence.   There is also another consideration  to  be taken  into account.  Take, for instance, a case where on  a certain  state  of  facts  the accused  is  alleged  by  the prosecution  to  have committed a very  grave  offence,  say under  s. 302, Indian Penal Code exclusively triable by  the Court of Session, but the Magistrate thinks that the offence falls  under s. 304-A which he can try and after trying  the accused either convicts or acquits him.  In either case  the result would be that the appropriate Court will be prevented from  trying the accused for the graver offence which  those very  facts disclose.  It is to obviate such  a  consequence and   to   prevent  inferior  Courts   from   exercising   a jurisdiction  which they do not possess that the  provisions of  s. 437, Criminal Procedure Code have been  enacted.   To say  that these provisions can be availed of only  where  an express order of discharge is made by a Magistrate would  be to  render those provisions ineffective and inapplicable  to the very class of cases for which they were intended.  As we have  already  pointed  out, the language used  in  s.  437, Criminal Procedure Code is wide and there is nothing in that section  from which it could be gathered that the power  can be  exercised only when the Magistrate has made  an  express order of discharge.  We accordingly reject the 373 argument  of Mr. Nurrudin Ahmed on behalf of  the  appellant and hold that the Additional Sessions Judge had jurisdiction to  set  aside the order of the Magistrate dated  March  19, 1960  and  to  direct the commitment  of  the  appellant  to Sessions Court on a charge under s. 307, Indian Penal Code. The view that we have expressed is borne out by the decision of the Full Bench of the Madras High Court in Krishna  Reddi v. Subbamma(1).  In that case, certain persons were  charged before  a First Class Magistrate under s. 379, Indian  Penal Code  with the theft of a promissory note.  The  prosecution applied  for  a further charge to be framed  under  s.  477, Indian  Penal Code, but this the Magistrate declined to  do, as  in  his opinion, there was no direct evidence  that  the accused  had destroyed or secreted the note.  After  hearing the  evidence for the defence the Magistrate  acquitted  the accused   under  s.  258,  Criminal  Procedure   Code.    An application was then made to the Sessions Court to call  for the  records  and direct the committal of  the  accused  for trial  for an offence under s. 477, Indian Penal Code.   The Sessions  Court ordered that a further enquiry be  made  and that  the accused be committed for trial.  It was  contended before  the High Court that the order of the Sessions  Court was  illegal  on  the  ground  that  the  accused  had  been acquitted and not discharged.  It was held by the Full Bench

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that the order of the Magistrate was, in substance, an order discharging  the  accused in respect of an  alleged  offence under s. 477, Indian Penal Code, and that the Sessions Judge had jurisdiction to make the order sought to be revised.  In the  course of its judgment the Full Bench observed at  page 146 of the Report as follows:                "If  section  209 of the  Criminal  Procedure               Code is to be construed as meaning that  there               can  be no ’discharge’ under that  section  in               respect of an offence exclusively triable by a               Court of Session in cases where it appears  to               the  Magistrate  that the  accused  should  be               tried before himself or some other  Magistrate               in  respect  of offences  not  so  exclusively               triable,  there  would be  a  deadlock,  since               there is no provision in the Code, other  than               that  contained  in section 209,  for  dealing               with a case where the Magistrate is of opinion               that  there  is  no  evidence  of  an  alleged               offence  which  is triable  exclusively  by  a               Court  of  Session,  but  considers  that  the               accused  should  be tried before  himself,  or               some  other Magistrate in respect  of  alleged               offences which are not so exclusively triable.               From the terms of the Magistrate’s order it is               clear  that he adjudicated upon  the  question               whether  there  was any evidence  against  the               accused in respect of the major offence.   The               Magistrate came to the conclusion that (1)  I.L.R. 24 Madras 136. 374                there was not, and he declined to charge  him               with  the major offence.  It seems to us  that               this  is a ’discharge’ within the  meaning  of               section 209.                Chapter XVIII relates to enquiries into cases               triable by the Court of Session or High Court.               The  primary object of section 209 is to  make               provision  for the. procedure in  such  cases.               If in the opinion of the Magistrate, there  is               no evidence to warrant a charge for an offence               exclusively triable by a Court of Session,  he               may ’discharge’ the accused in respect of  the               alleged  offence  and,  having  done  so,  may               proceed  as  regards  the  minor  offence or               offences   under   Chapter   XXI   or    other               appropriate  chapter.  In fact,  a  Magistrate               cannot proceed to act under the latter part of               sub-section  (1) of section 209 until  he  has               ’discharged’ the accused under the former part               of the sub-section.  This is the course  which               the Magistrate adopted in the present case." The same view has been held by the Full Bench of the  Madras High Court in In re Nalla Baligadu and Others(1) and it  was held  that  where under s. 209(1) a  Magistrate  finds  that there are not sufficient grounds for committing the  accused for trial and directs such person to be tried before himself or some other Magistrate, the revisional powers under s. 437 Criminal  Procedure  Code can be exercised by  the  Sessions Court.  On behalf of the appellant Mr. Nuruddin Ahmed relied upon the Full Bench decision of the Allahabad High Court  in Nahar  Singh v. The State(2) in which it was held  that  the power  under s. 437, Criminal Procedure Code is  exercisable only  in a case where the Magistrate, by an  express  order, discharges  an accused person in respect of an  offence  ex-

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clusively triable by a Court of Session.  It was observed in that case that the failure of or refusal by a Magistrate  to commit  an  accused person for trial by a Court  of  Session does  not  amount  to an implied discharge  of  the  accused person  so  as to attract the power of  the  Sessions  Judge under  s.  437,  Criminal  Procedure  Code  to  direct   the Magistrate  to  commit the accused person for trial  by  the Court  of  Session  on  the  ground  that  the  offence   is exclusively triable by the Court of Session.  The view taken in  Nahar  Singh v. The State(2), has been followed  by  the Calcutta High Court in Sambhu Charan Mandal v. The State(3). For  the  reasons already expressed, we hold that  the  view taken  by  the  Madras  High  Court  in  Krishna  Reddi   v. Subbamma(4) and in In re Nalla Baligadu and Others(1) as  to the  interpretation and effect of ss. 209 and 437,  Criminal Procedure Code is correct. (1) A.I.R. 1953 Mad. 801.   (2) A.I,.R. 1952.  All. 231. (3) 60 C.W.N. 708.         (4) I.L.R. 24 Mad. 136. 375 We pass on to consider the next contention raised on  behalf of  the appellant, namely, that the order of the  Additional Sessions  Judge dated July 13, 1960 is ultra vires since  he had  no  jurisdiction  to  set aside  the  judgment  of  the Magistrate acquitting the appellant of the charges under ss. 326  and 338, Indian Penal Code.  We do not think  there  is any substance in this point.  It is true that the Additional Sessions  Judge has no authority to set aside the  acquittal of  the appellant under the provisions of s.  437,  Criminal Procedure  Code.  But the order of the  Additional  Sessions Judge has been affirmed by the High Court in its order under appeal  and under s. 439, Criminal Procedure Code  the  High Court  has  jurisdiction  to  interfere  with  an  order  of acquittal in revision and to direct that the accused may  be retried  on  the  graver  offence.   Section  439,  Criminal Procedure Code reads as follows :-                "439.  (1) In the case of any proceeding  the               record of which has been called for by  itself               or  which  has been reported  for  orders,  or               which  otherwise comes to its  knowledge,  the               High  Court may, in its  discretion,  exercise               any  of  the powers conferred on  a  Court  of               Appeal  by sections 423, 426, 427 and  428  or               on’  a Court by section 338, and  may  enhance               the  sentence; and when the  Judges  composing               the  Court of Revision are equally divided  in               opinion, the case shall be disposed of in  the               manner provided by section 429.                (2)  No  order  under this section  shall  be               made to the prejudice of the accused unless he               has  had an opportunity of being heard  either               personally or by pleader in his own defence.                (3)                (4)  Nothing  in this section applies  to  an               entry  made  under section 273,  or  shall  be               deemed to authorise a High Court to convert  a               finding of acquittal into one of conviction.                ................... In our opinion the High Court must be deemed to have  itself set  aside the order of acquittal under this section and  we therefore  reject the argument advanced by the appellant  on this aspect of the case. It was lastly contended for the appellant that there can  be no  commitment  for the offence under s. 307,  Indian  Penal Code  in view of the acquittal on the charge under  ss.  326 and  338, Indian Penal Code.  Reliance was placed on s.  403

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(1),.  Criminal Procedure, Code which states 376 .lm15                  "403. (1) A person who has been once  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  s.  236, or for which he might  have  been  convicted under section 237." There  is  no  substance in the argument  of  the  appellant because  s.  403  (4) provides that a  person  acquitted  or convicted  of  any  offence constituted  by  any  acts  may, notwithstanding    such   acquittal   or   conviction,    be subsequently charged with, and tried for, any other  offence constituted by the same acts which he may have committed  if the  Court by which he was first tried was not competent  to try  the offence with which he is subsequently charged.   In view  of this sub-section it is obvious that there can be  a fresh  charge and trial under s. 307, Indian Penal  Code  in spite  of  the  acquittal  of the  appellant  on  the  minor charges.   There  is  hence  no  reason  why  an  order  for commitment under s. 307, Indian Penal Code cannot be made by the  Additional Sessions Judge in spite of the acquittal  of the appellant on the charges under ss. 326 and 338,  Indian’ Penal Code. It was also submitted by Mr. Nuruddin Ahmed that apart  from s.  403(1) of the Criminal Procedure Code the  principle  of res judicata applied to a criminal trial also and the effect of  a verdict of acquittal pronounced by the  Magistrate  on the  charges  under ss. 326 and 338, Indian Penal  Code  was binding and conclusive in all subsequent proceedings between the parties and the effect of the finding of the  Magistrate was  that  the  prosecution had  failed  to  establish  that Gourishankar Tiwari was injured in the manner alleged by the prosecution  and the prosecution case was  not  established. It  was  argued  that the same facts  could  not  be  proved against  the  appellant  in subsequent  proceedings  on  the charge under s. 307, Indian Penal Code.  In support of  this proposition  Counsel relied upon the decision of this  Court in  Pritam Singh v. The State of punjab(1) and also  on  the following observations of Lord MacDermottt in Sambasivam  v. Public Prosecutor, Federation of Malaya(2) :                "The   effect  of  a  verdict  of   acquittal               pronounced  by a competent court on  a  lawful               charge  and  after  a  lawful  trial  is   not               completely  stated by saying that  the  person               acquitted  cannot be tried again for the  same               offence.   To that it must be added  that  the               verdict  is  binding  and  conclusive  in  all               subsequent proceedings between the parties (1) A.I. R. 1956 S.C. 415. (2) [1950] A.C. 458, 479. 377                to the adjudication.  The maxim ’Res judicata               pro  veritate accipitur is no less  applicable               to criminal than to civil proceedings.   Here,               the  appellant  having been acquitted  at  the               first trial on the charge of having ammunition               in  his possession, the prosecution was  bound               to accept the correctness of that verdict  and               was   precluded  from  taking  any   step   to

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             challenge  it  at the second trial.   And  the               appellant was no less entitled to rely on  his               acquittal in so far as it might be relevant in               his defence." In our opinion, the principle does not apply to the  present case because the order of acquittal of the appellant by  the Magistrate must be deemed to have been validly set aside  by the  High Court for the reasons we have already given.   We, accordingly  reject  the argument of the appellant  on  this point. For  these  reasons we are satisfied that the order  of  the High  Court dated May 8, 1964 is not defective in law.   But in  the circumstances of this case we think that it  is  not expedient  that  the appellant should be  tried  after  this lapse  of  time  before  a Sessions  Court  for  an  offence committed   as  long  back  as  September  30,   1958.    We accordingly  set aside the order of the Additional  Sessions Judge, Arrah dated December 20, 1960 ordering the commitment of  the  appellant and also the judgment of the  Patna  High Court  dated  May  8, 1964 which affirms the  order  of  the Additional  Sessions  Judge.   The  appeal  is   accordingly allowed. V.P.S.                       Appeal allowed. 378