PETITIONER:
STATE OF KARNATAKA
Vs.
RESPONDENT:
K.H. ANNEGOWDA & ANR.
DATE OF JUDGMENT08/12/1976
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cution withdrawn before Sessions Court--If amounts "dis-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
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
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
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
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
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
(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