Rajasthan High Court - Jaipur
State Of Rajasthan vs Saleem on 9 January, 1986
Equivalent citations: 1986(2)WLN777
JUDGMENT Jas Raj Chopra, J.
1. This appeal against the judgment of Judicial Magistrate No. 3, Jodhpur dated July 16, 1977 raises a very short legal question regarding the applicability of Section 300 Cr.PC.
2 The facts leading to this appeal briefly stated are that the complainant Mohd. Ishaq was living in his sister's house situated at Subhash Chowk, Ralanada, Jodhpur for the past about 14 years. It is alleged that his brother Saleem and his son Safiq came to his house on December 21, 1975 and Dec. 26, 1975 and asked him to vacate the house. When he did not agree to their request, Saleem and Sadiq gave beating to him, opened the lock of his house and ousted him from it on February 8, 1976. He lodged a report about this incident in the Police. After usual investigation, the Police filed a challan under Section 453 IPC. However, he also filed a private complaint regarding the same offence in the court of Judicial Magistrate No. 2, Jodhpur. The case was registered against the accused persons under Sections 323-427 and 451 IPC. After summoning of the accused persons, the case was fixed for the evidence of the complainant on October 5, 1976. The case was registered as Private Complaint No. 17 of 1976. On October 5, 1976, the complainant was absent and the accused persons along with their counsel were present. In the absence of the complainant, the learned Magistrate dismissed the complain under Section 256 Cr.PC and acquitted the accused persons of the offences under Sections 323, 451 and 427 IPC. Thereafter in the case filed on police report which was registered under Section 453 IPC, an application was moved on behalf of the accused persons that for the same offence they have already been acquitted by the Court of Judicial Magistrate No. 2, Jodhpur on October 5, 1976 and, therefore, this prosecution is now barred under Section 300 Cr.PC. This application was moved at the stage when the case was fixed for prosecution evidence. The learned Magistrate held that the second trial of the accused persons for the same incident is barred under Section 300 Cr PC as they have already been acquitted. Aggrieved against this judgment, the State has preferred this appeal.
3. I have heard Mr. B.C. Bhansali, learned Public Prosecutor for the State and Mr. Suresh Kumbhat, learned Amicus Curiae for the accused-respondent Saleem. I have also carefully gone through the report of the case.
4. It was contended by the learned Public Prosecutor that Section 300 Cr.PC bars the second trial only when a person has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence. According to him in this case no trial took place in the earlier proceedings but only the substance of the allegation was read over to the accused persons. The accused persons did not plead guilty to the charges and, therefore, the case was fixed for recording of the prosecution evidence and, hence the principle of autrefois acquit cannot be pressed in service. In support of his submission, he invited my attention to Venkatasubba v. Soundra Raja AIR 1929 Mad 260 where in the accused was discharged under Section 259 Cr.PC but the complainant again filed a fresh complaint. It was held that the trial is not illegal and the accused is not prejudiced by the second trial.
5. Learned Public Prosecutor further drew my attention to Harbai v. Raja Premji 1939 40 Cr.LJ 745 where in it was observed as follows:
Dismissal of complaint under Section 203 or discharge of accused under Section 259 by Magistrate is no bar for taking cognizance of a fresh complaint or a second complaint either by his successor or by any other Magistrate of the co-ordinate jurisdiction even though the order of dismissal or discharge is not set aside. The order dismissing the complaint under Section 203 Cr.PC or discharge of the accused under Section 259 Cr.PC is not a final judgment and, therefore, the bar of Section 403 Cr.PC (Old) is not applicable for entertainment of such a second complaint. No finding can be attached to an order made under Section 203 or 259 Cr.PC.
In Dhana Reddy v. Emperor AIR 1930 Rangoon 156, it was ruled as follows:
An order dismissing a complaint or discharging an accused person does not operate as an acquittal under Section 403 and does not bar the taking cognizance of a fresh complaint of the same offence even though the order of dismissal or discharge has not been set aside by a competent authority.
6. In Slate of W.B. v. United Rubber Work Ltd. , petition of complaint which was filed against the accused with respect to an offence under Section 29 read with Section 32 of the Industrial Disputes Act was not entertained by the Magistrate firstly because it was not instituted with proper sanction and secondly the learned Magistrate had no jurisdiction to try the case. He, therefore, released the accused persons from the bail bonds. It was held that the order of discharge of the accused from the bail bonds was the proper order that could have been made in the circumstances of the case and that order did not amount to an acquittal so as to bar the fresh complaint.
7. My attention was also invited to Sita Ram Sao v. Sahdeva Gope , where in it was held as under:
that a charge for an offence under Section 436 Penal Code could not be framed against the accused under the provisions of Section 236 Cr.PC nor could he be convicted for that offence under the provision of Section 237 Cr.PC, when the charge was framed against him was under Section 342 of the Penal Code. He might have been charged under Section 436 Penal Code at the trial under the provisions of Sub-section (1) of Section 235 Cr.PC. Hence Section 403 Cri.PC was no bar to the trial of the accused for an offence under Section 436 Penal Code after he had been acquitted of the charge under Section 342 Penal Code.
8. It may be stated here that Section 403 Cr.PC (Old) is pari materia with Section 300 of Criminal Procedure Code, 1973. On the strength of the above cited, authorities, Mr. B.C. Bhansali, learned Public Prosecutor for the State vehemently submitted that even if the accused persons have been acquitted of the charges under Section 323, 451 and 427 IPC by taking recourse to the provisions of Section 256 Cr.PC, Section 300 Cr.PC does not create any bar for the trial of the case under Section 453 IPC I may state at the very outset that above mentioned authorities have no application to the facts and circumstances of the case in hand. Venkatasubba's case AIR 1929 Mad 260. Harbai's case (1939) 40 Cr. LJ 745 and Dhana Reddy's case AIR 1930 Rangoon 156 relate to the cases in which the accused persons were discharged under the provisions of Section 259 Cr.PC (Old) and it has been held that the discharge of an accused or dismissal of a complaint under Section 203 Cr.PC (Old) does not operate as a bar to the taking of cognizance of an offence on second complaint. These are the cases in which the complaints were dismissed and the accused persons were discharged and so, these cases have no direct bearing on the facts and circumstances of the present case. In State of W.B.'s case even the cognizance of the case was not taken by the Magistrate because he had no justification and secondly proper authorisation for prosecution was not obtained. It was, therefore, held that a second complaint with proper authorisation was not barred under the provisions of Section 403 Cr.PC (Old).
9. In Prem Nath v. Saroj Ranjan , it was observed by their Lordships of the Supreme Court as follows:
An order of dismissal under Section 203, Cr.PC, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence have been brought on the record in the previous proceedings, have been adduced, it cannot be said to be in the interest of justice that after a decision has been given the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.
10. Their Lordships of the Supreme Court in Mohd. Safi v. State of West Bengal have been placed to lay down as follows:
The provisions of Section 403 are based upon the general principle of autrefois acquit recognised by the English Courts. The principle upon which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence, This principle is incorporated in Article 20 of the Constitution. Where the accused person was not liable lawfully to be convicted at the first trial because the Court lacked jurisdiction, the defence of autrefois acquit has no application.
11 In Sitaram Rao's case pertained to the trial of a totally different and distinct offence from the one of which the accused was acquitted in the earlier trial. It has been provided in Section 300 Cr.PC itself that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence may be afterwards tried with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (1) of section 220. Thus, the Section itself supports the authority of the Patna High Courts in Sitaram Rao's case . In that case, there was no trial for the offence under Section 436 IPC which could be tried only by a Court of Sessions and, therefore, it held that even if the accused was acquitted of the offence under Section 342 IPC he can again be prosecuted on a fresh complaint for the offence under Section 436 IPC. In the case on hand, the occurrence is one and the same. The complainant availed two remedies at the same time to redress his grievance against his brother and nephew. Firstly he lodged an FIR in the Police and secondly, he filed a private complaint in the Court. The crux of the offence was that he was beaten and has been ousted from his house and his belongings have been thrown away. On this allegation, the learned Judicial Magistrate registered a case under Sections 323, 451 and 427 IPC. However, the Police challaned the case under Section 453 IPC. In the case filed on a private complaint the complainant was absent on October 5, 1976 and, therefore, the accused-persons were acquitted of the offence under Sections 323, 451 and 427 IPC because all these three offences were required to be tried in a summons case trial as they were not punishible with an imprisonment for over a period of 2 years. Now till this acquittal remains in force and is not set aside by a superior court, Section 300 Cr. PC specifically bars the trial of the accused-persons on the same allegation in a different case. The cases of discharge and dismissal of complaints are to be distinguished from acquittal of an accused in summons case trial Much stress has been laid on the fact that Section 300 Cr.PC provides that to press into service the principle of autrefois acquit, the accused must have been tried by a court of competent jurisdiction and after he is either convicted or acquitted, it bars the second trial. Mr. B.C. Bhansali, learned Public Prosecutor laid great emphasis on the words used in Section 300 Cr.PC 'the trial by a court of competent jurisdiction'. He submitted that the use of these words are not superfluous. Simply because the complainant remained absent on a particular date before the conclusion of the trial, the acquittal recorded is not after trial. In other words, he meant to convey that the acquittal to be in force must be on which has been obtained after a full trial from a competent court. I am afraid I cannot subscribe to this view. There was a conflict of opinion among the Judges of the Madras High Court as to when the trial in summons case begins in private complaint cases?
12. In Kotayya v. Venkayya 1911 ILR 34 Mad. 253, a Division Bench of the Madras High Court took the view that the trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused under Section 242 Cr.PC. However, Abdul Rahim, J. in Dudekula Lal Sahib (19I7) 40 ILR Mad. 977 took a different view that in summons cases the trial commences as soon as the Magistrate has taken cognizance of the matter and issued process. He observed as follows:
It seems to me that the only possible meaning we can give to the words 'who has once been tried' is against whom proceedings have been commenced in Court, i.e. against whom the Court has taken cognizance of an offence and issued process.
In Re Dudekulalal Sahib's case (supra), Napier, J. took a different view and observed as follows:
that it is impossible to treat the words 'once been tried by a Court of competent jurisdiction' in Section 403, Cr.PC as surplusage, or to apply the word 'tried' to a case where a man has not even been served with the summons. I have no doubt that the section is intended to produce what is undoubtedly the law in England namely that to plead autrefois acquit successfully the accused must have been put in peril either before the jury or the Magistrate.
However, Re Dudekulalal Sahib's case (supra) was referred to Sir John Wallis, C.J., who agreed with the view of Abdul Rahim, J. and held that in summons cases the trial commences as soon as the Magistrate has taken cognizance of the matter and issued the process.
13. In Re Dudekulalal Sahib's case (supra) was noticed in Shanker v. Dattatraya AIR 1929 Bombay 408, where in a Division Bench of the Bombay High Court observed as follows:
Under Section 247, it is not necessary that the summons should be served on the accused or that he should be present in the Court before an order of acquittal can be passed in his favour on account of the absence of the complainant. The word 'fried' in Section 403 does not necessarily mean tried on merits and such acquittal bars fresh trial.
It was further observed as under:
It is clear that the previous order of acquittal has remained, in force and has not been set aside by any order of superior court. The word 'tried' in Section 403 does not necessarily mean tried on the merits The composition of an offence under Section 345, Cr.PC or a withdrawal of the complaint by the Public Prosecutor under Section 494, Cr.PC would result in an acquittal of the accused even though the accused is not tried on the merits. Such an acquittal would bar the trial of the accused on the same facts on a subsequent complaint.
...We are of opinion that as soon as a Magistrate takes cognizance of an offence and an order for summons is issued the proceedings have commenced against the accused, and under Section 247, it is not necessary that the summons should be served, or that the accused should be present in Court before an order of acquittal might be passed in his favour on account of the absence of the complainant.
14. The Division Bench of the Bombay High Court also notice in a decision of the Patna High Court in Kiran Sarkar v. Emperor AIR 1924 Pat. 140 and quoted with approval the following:
In Kiran Sarkar v. Emperor (6), it was held by the Patna High Court that the important matter for an order Section 247 Cr.PC, is the presence or absence of the complainant, that it is not necessary that the accused must be present or must have been summoned to the Court, and that the order under Section 247 is a final order of the acquittal which operates as bar under Section 403 of the Code of the trial of the accused for the same offence.
15. After discussing number of rulings, Parkar, J. speaking for the Court observed as under:
The intention of the legislature is quite clear for it appears from Section 205, Act 10 of 1872, that the Magistrate could only dismiss the complaint under the Cr.PC of 1872 whereas under the Code of 1872 and the subsequent Codes the Magistrate was empowered to acquit the accused. The statutory acquittal intended to operate as a final bar to further proceedings. The order of acquittal in this case has remained in force and has not been set aside. On these grounds we think that the order of acquittal passed by the Magistrate on 28th April bars a fresh trial of the accused on the same facts under Section 403.
16. Mr. B.C. Bhansali, learned Public Prosecutor drew my attention to a Full Bench decision of the Madras High Court reported in Re-Ponnu Swami Goundan (1932) 33 Cr. LJ 454, where in it was laid down:
Where a complaint is dismissed by a Sub-Divisional Magistrate under Section 203 of the Cr.PC, a Sub-Magistrate has jurisdiction to entertain a charge-sheet founded on a subsequent complaint, the order of dismissal not having been set aside.
17. The Full Bench placed reliance on decision of its own Court in Emperor v. Chinna Kalippa Goundan 16 MLJ 79. In Re-Ponnuswami Goundan's case (supra), it was observed as under:
The Section 403 begins by laying down that a man who has been tried for an offence and convicted or acquitted of it shall not be liable to be tried again for the same offence and it ends with the explanation that the dismissal of a complaint is not an acquittal for the purpose of the section. That however, is not all; there is in regard to an acquittal a qualification which is not to be found in the explanation. It is that an acquittal to be a bar to a second trial must still remain in force. In regard to the dismissal of a complaint, it is not stated that the order of dismissal is a bar until it is set aside.
18. The Full Bench of the Madras High Court has, therefore, made a distinction between the dismissal of a complaint and acquittal remaining in force. If an acquittal has been recorded by a Court of competent jurisdiction whether after trial or under Section 247 Cr.PC (Old) and that acquittal has remained in force and is not set aside then the second complaint is barred. I have already quoted two Supreme Court authorities in support of the view that a dismissal of a complaint and discharge of the accused does not bar fresh trial although cognizance on the second complaint on the same facts should be taken in very exceptional circumstances mentioned therein above but that principle cannot be applied to the cases of acquittal recorded under Section 247 Cr.PC. (Old) till that acquittal remains in force and is not set aside by a competent superior court.
19. In Kashigar Ratanager v. State of Gujarat 1975 Cr.LJ. 963, two separate complaints under Section 131 read with Section 33(1)(v)(i) Bombay Police Act in respect of same incident were filed by two Police Constables. One of the two complaints was heard first. It was a summons trial. Particulars of the offence were explained to the accused and he pleaded not guilty. On the next date when evidence was to be recorded, the complainant was absent and so the Magistrate passed the order of acquittal under Section 247 Cr.PC. Thereafter, the second complaint was taken on board, the deposition of the second complaint was recorded and the accused was convicted. It was held that the second trial was barred under Section 403. Although the first trial was not on merits, the order of acquittal in it did not come within the Explanation to Section 403 Cr.PC. In Kashigar Ratanagar's case (supra), J.M. Seth. J. placed reliance on Haveli Ram v. Municipal Corporation of Delhi and quoted with approval the following passage;
that there are two views with regard to the meaning and, scope of the word 'tried' in Sub-section (1) of Section 403, one view is that the accused must be present in Court on being summoned before it can be said that the trial has commenced and the other is that once the Court has taken cognizance of a complaint or of a Criminal case and has ordered issue of process for the accused to appear, it has taken steps towards the trial and what it has done is proceeding in the nature of a trial. The latter view accords more with the explanation to Section 403 of the Code because were in the intention of the legislature to exclude acquittals under Sections 247 and 248 from the scope of Section 403, it could have specifically provided for it, as is done in the explanation in the case of stopping of proceedings under Section 249 or the discharge of the accuse or an entry made upon a discharge under Section 273.
20. Seth, J, however, observed as follows:
The Bombay High Court has taken the same view and I am bound by that decision also. The said decision has been given prior to the date of bifurcation of the Bombay State. It is thus evident that the trial in Criminal Case 979 of 1/72 was barred in view of the provisions of section 403 Cr.PC.
21. The Calcutta High Court in Suchana Roy v. Paresh Kr. Ray 1978 Cr. LJ 555 took the following view:
Dismissal of complaint by a Magistrate is quite different from an order of acquittal by a Magistrate in a summons case. The Cr. PC has specifically incorporated the provision for acquittal under Section 256 on the ground of non-appearance of the complainant. That acquittal is good enough to constitute an acquittal under Section 300. It may be noted that even a person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court.
Sudhamay Basu, J. Suchana Roy's case observed as follows:
This Section 300 corresponds to old Section 403 of the earlier Cr. PC. This is based on the well known principle that no man's life or liberty should be twice put in jeopardy for the same offence on the same set of facts.
(Italic is ours)
22. In Suchana Roy's case, the learned Judge quoted the observations made by Rankin, C.J. with approval in Sudhindra Kumar Roy v. Emperor 34 Criminal Law Journal 611, which are as follows:
It is very difficult to say at what stage apart from the very earlier stage, trial does not begin before a Magistrate. There is some ground for arguing that the moment the Magistrate takes cognizance of the offence, the trial commences.
23. In that case, Mr. Pal appearing on behalf of the complainant drew the attention of the Court presided over by Sudhamay Basu, J, to a Full Bench decision of the Calcutta High Court reported in Sarrendra Mohan Basu v. Suraj Ranjan Sarkar , wherein it was held that a fresh complaint after dismissal of the previous complaint may be entertained when there was any manifest error or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming. The same view has been expressed in the decision of their Lordships of the Supreme Court in Parmatha Nath v. Saroj Ranjan (supra). This submission was however repelled by the learned Judge by observing that it was a case relating to dismissal of a complaint under Section 203 and it is clearly distinguishable. It was further observed as under:
It may be pointed out that Section 203 of the new Code belongs to the group of sections under Chapter 15 which relates to complaint to Magistrate where as Section 255 dealing with acquittal or conviction is included in a group of sections comprised in Chapter 20 of the Cr. PC that relates to trial of summons cases by a Magistrate. Dismissal of complaint by a Magistrate is therefore quite different from an order of acquittal by a Magistrate in a summons case. The Cr. PC has specifically incorporated the provision for acquittal under Section 256 on the ground of non-appearance of the complainant. That acquittal is good enough to constitute an acquittal under Section 200. It may be noted further that Sub-section (5) of Section 300 which has been quoted earlier provides that even a person discharged under Section 25 shall not be tried again for the same offence except with the consent of the Court. It is not necessary to, deal with some other aspects of the matter which were discussed at the bar namely, in what conditions a complaint being dismissed a fresh one can be instituted.
24. In Rabindra Dhai v. Jairam Sethi 1982 Cr. L.J. 2144, a learned Single Judge of the Orissa High Court has held as under:
When a court applies a wrong provision of law erroneously, it would be deemed that the order, in effect, was one under that provision of law applicable to the facts of the case. In a summons case the Code does not provide to dismiss the complaint or discharge the accused ...Where the complaint was dismissed after issue of summons to the accused on account of the absence of the complainant the order would amount to one of acquittal irrespective of whether the Magistrate uses the word 'discharged or acquitted'. Therefore the order of discharge of the accused passed under Section 245 by Magistrate for the offence of the theft as the complainant was absent on the date of the hearing would amount to acquittal under Section 256. Thus the subsequent trial of the accused for the commission of the same offence in which conviction was recorded against him was illegal in view of Section 300.
25. The learned Judge, placed reliance in that case on decision of the Andhara Pradesh High Court in Public Prosecutor v. Hindustan Motor Ltd. wherein it was held that the order of discharge under Section 245(2) of the Code must, therefore, be read as order of acquittal passed under Section 256 of the Code. There being no provision for revival of a case after acquittal, a Magistrate cannot set aside his own order or that of his predecessor or that of another Magistrate on the ground that acquittal was without jurisdiction. The remedy of the opposite party was to go up in appeal under Section 378(4) of the Code. Rabindra Dhai's case 1982 Cr.L.J. 2144 the learned Judge also quoted with approval the following observations which were made in Rajkumar Manisana Singh v. Nameirakpam Angon Singh 1969 Cr. L.J. 844:
that when the accused was charged for committing the offence triable as a summons case and the Magistrate passed an order of discharge as both the parties were absent, the order of discharge would amount to an order of acquittal under Section 247 of the Code (Old) and a fresh trial for the same offence would be barred by Section 403 of the Code (Old), corresponding to Section 300 of the Code.
26. The learned Judge, therefore, held that Section 300 Cr. PC would bar a fresh complaint and another trial on the same facts as the word 'tried' therein would not necessarily mean tried on merits and if the acquittal is without jurisdiction or the order of acquittal is nonest Section 300 of the Code may not be applied. Thus Orissa, Andhra Pradesh and Manipur High Courts have taken a view that even if the order of dismissal of a complaint or discharge of an accused is passed after the trial has commenced that order should be deemed to be an order passed under Section 256 of the Cr.P.C. and that the order of discharge or dismissal should be taken as an order of acquittal and till that order of acquittal is not set aside by a superior court in appeal, a second trial on the same facts is barred under Section 300 Cr.PC.
27. In a latest ruling of the Gujarat High Court in Kharva Hiralal Damji v. Vichai Ratnabash and Anr. 1983 Cr. LR (Guj.) 181 a learned Single Judge of the Gujarat High Court also took the view that the order of dismissing the complaint would have the effect of acquittal. In that case, it was observed as under:
The word 'tried' in Section 403 does not necessarily mean tried on the merits. The composition of an offence under Section 345 Cr. PC or a withdrawal of the complaint by the Public Prosecutor under 494 Cr. PC would result in an acquittal of the accused even though the accused is not tried on the merits. Such an acquittal would bar the trial of the accused on the same facts on subsequent complaint.
28. In that case, Mahammed Safi's case (supra) was also discussed and it was held that it applies to only those cases where an order of acquittal is passed by a Court which was not competent to try the case. It also quoted the following observations with approval from Emperor v. Dulla AIR 1923 Allahabad 360, wherein it was held:
that the provision contained in Section 403, Cr.PC is imperative and bars a second trial of a person who has once been acquitted on the same charges, that the section does not make any distinction between acquittals after trial and acquittals under Sections 247, 345 and 494 of the Code and that so long as an order of acquittal under Section 247 stands Section 403 bars a second trial on the same charge, no matter whether the order of acquittal is good or bad, legal or illegal.
29. To conclude, it may safely be said that if an accused has been discharged or his complaint has been dismissed under Section 203 Cr.PC a fresh trial on a fresh complaint is not barred under Section 300 Cr.PC. Even in such cases, cognizance on the second complaint should not easily be taken. It is only in very exceptional circumstances that such cognizance can be taken as observed by their Lordships of the Supreme Court in Pramatha Natha v. Saroj Ranjan . Of course Allahabad High Court in Gur Charan v. State , took the view that once an accused person has been discharged or a complaint is dismissed by a competent Magistrate in respect of a particular cause of action, the accused should not be harrassed in successive trials before different Magistrates in respect of the same cause of action. Where an accused has been improperly discharged, the proper remedy for the complainant is to go up in revision against the order of charge and it is for the revisional court to decide whether the discharge is proper one or not, and in case the discharge is not justified on the material on the record, it may direct further inquiry into the matter or pass such orders as may be appropriate in the circumstances of the case, ft may be stated here that Gurcharan's case (supra) related to the period prior to the decision of their Lordships of the Supreme Court in Paramatha Natha's case (supra). In such cases, although Section 300 Cr.PC does not specifically bar the trial of an accused on a second complaint, but the Courts should be slow in entertaining such complaint and that too, in very exceptional circumstances. Mysore High Court in State v. Mohd. Mir AIR 1964 Mysore 254, also took a view that though the order of discharge was not an acquittal and therefore, the fresh case was not barred under Section 403, however, in the circumstances of the case if the case continued after the lapse of such a long period or more than five years from the date of the event, it would not only be highly inconvenient but would also cause harrassment to the accused and hence, the fresh case deserved to be dismissed.
30. From the discussion made here in above, the only view which can be deduced is that dismissal of a complaint in a warrants case or discharge of an accused is not a bar to the trial of the accused on a fresh complaint but entertaining of such a fresh complaint should be adhered to in very exceptional circumstances when the previous order was passed either on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifesty, absurd, unjust or foolish or where new facts which could not with reasonable diligence have been brought on the record in the previous proceedings have been adduced or when a distinct offence from the given facts is made out from one of which the accused has been tried and acquitted.
31. So far as the acquittals under Section 256 Cr.PC are concerned they can only be interferred with by a superior Court. The Court which passed an order under Section 256 Cr.PC and acquitted the accused becomes functus officio and it cannot of its own review that order of acquittal. Such an order can only be set aside by a superior Court and not by a Court which recorded such an order of acquittal in a complaint case (tried as a summons case) on account of the absence of the complainant after the cognizance has once been taken and process has been issued to secure the presence of the accused. It is immaterial whether he is present or absent when the order of acquittal is recorded in his favour on account of the absence of the complainant.
32. Having considered almost all the authorities on the subject rendered by different High Courts of the country as also be their Lordships of the Supreme Court, I have no hesitation to hold that once an order of acquittal under Section 256 Cr.PC corresponding to Section 247 of the Old Cr.PC is passed and till that order of acquittal remains in force and is not set aside by a competent superior Court, the order of acquittal operates as a bar to further proceedings on a second complaint based on the same facts. In the case in hand, the complainant availed of two remedies one through the agency of the Police by lodging an FIR and the other through a private complaint. Both of them were based on the same set of facts relating to the same incident. In the complaint case, the accused persons have been acquitted under Section 256 Cr.PC. Thus, on the same facts, second trial on a Police report is specifically barred under Section 300 Cr.PC.
33. In the result, I find no force in this appeal and it is hereby dismissed.