Patna High Court
Gauri Shankar Jha vs Chintanath Jha And Ors. on 22 March, 1991
Equivalent citations: 1991(39)BLJR1167
JUDGMENT S. Haider Shaukat Abidi, J.
1. Criminal Revision No. 1056 of 1983 has been filed by Gauri Shanker Jha and others (first party) against Chinta Nath Jha and others (second party) against the order dated 5-10-1983 passed by Sri H.N. Shashtri, Executive Magistrate, Deoghar who refused to take action under Section 188 of the Indian Penal Code (for short IPC) against the 2nd party by taking aid of Section 195(1)(a) of the Code of Criminal Procedure (for short Cr. PC) for violation of the order of attachment under Section 146(1) Cr. PC by putting a Gumti on the attached land. Cr. Revision No. 906 of 1988 has been filed by the second party Chintanath Jha against the first party Gauri Shanker and others. Challenging the order passed by the judicial Magistrate making observation that the complaint filed by the second party under Section 447 IPC against the first Gauri Shanker Jha and others on 12-8-1988 was not maintainable, as action under Section 188 IPC should have been taken by the court and further the learned Magistrate by the same order has acquitted the accused persons of the charges under Section 447 IPC Since the parties are common and the land in dispute is same, so both the revisions have been heard together and are being disposed of by this common judgment.
2. It appears that the parties in this case are brothers and nephews coming from a common stock. It is said that the joint property of the family had been partitioned in the year 1968 between the first and second parties and the same was confirmed by judgment dated 31-3-1984 passed in Title Suit No. 203/84 by the learned Subordinate Judge, Deoghar.
3. A proceeding under Section 145, Cr. PC was started by Gauri Shanker Jha and others in respect of a vacant piece of land, in which the second party claimed to have their share. During the pendency of the proceeding under Section 145 Cr. PC this disputed plot was attached under Section 146 Cr. PC by the order dated 6-l1-1982 and the parties were forbidden to alter or change the nature of the disputed land by any construction. It is said that the second party violated the order of attachment by putting a gumti for selling articles during the Shravani mela and when the first party tried to restrain the second party became violent and wanted to assault the first party who restrained themselves. Then the first party filed an application for action under Section 195(1)(a) Cr. PC for prosecution under Section 188 IPC against the second party but the court below rejected the prayer of the first party on 5-10-1983 against which order the Cr. Rev. No. 166 of l983 was filed and admitted on 3-1-1984. The lower court record was summoned, as appears from the order sheet dated 8-4-1984. The Lower Court record was received in the High Court. No interim order was passed by this Court.
4. Then the second party made an application to the learned Magistrate on 5-9-19/4 saying that the first party was disobeying the attachment order of the court as the first party had started filling up earth over the passage and also started making illegal construction of small stair over the disputed land on 4-9-1984 and 5-9-1984 and in spite of the request they did not stop the same. Further an application was also filed on 15-9-1984 for filing a complaint against the first party under Section 447 IPC on 12-11-1984 the learned Magistrate heard the parties and said that in view of the stay order of the High Court, (though there was no stay order Cr. Rev. No. 10(sic)6/83 and only record has been summoned by the High Court, he (the magistrate) could not take any action into the matter against the first party, and so he directed the second party to take suitable legal action. The second party, therefore, filed a complaint under Section 447, IPC on 19-12-1984 against the first party and others. On the same day, the learned "Magistrate took cognizance of the offence under Section 447 IPC against the 1st party. Then the proceedings started. On 17-2-1986 the gist of the charge under Section 447 was read over in Hindi to the accused Nos. 1 to 3, The complainant in support of his case examined five witnesses. Certified copy of the application dated 5-9-1983 in case No. 69/81 and also application dated 15-9-1984, copy of the order dated 15-9-1984, copy of the order dated 6-11-1982, 12-11-1982 and Judgment dated 5-11-1982 in Appeal No. 482/84/84/62/85 and carbon copy of the notice under Section 144 Cr. PC dated 18-7-1981 were filed. The accused in defence examined two witnesses, besides filing copies of the orders dated 15-9-1981 in case No. 447/81, and certified copy of the order sheets dated 15-10-1982 to 6-11-1982 in case No. 69/82. The court after considering the question and the contention of the parties and the cases referred to, came to the conclusion that case under Section 447 IPC was not maintainable as it was of proceeding under Section 188 Cr. PC and so acquitted the accused under Section 447 IPC and discharged them of the liability of bail bonds. Against this order dated 12-V-1988 this Cr. Rev. No. 906/88 has been filed by the second party.
5. Learned Counsel for the petitioners (second party) has urged that the learned Magistrate has erred in holding that the compliant under Section 447, IPC was not maintainable. Further it was said that the court has erred in passing the order of acquittal of the first party as the case has not been on merits and there was no question of acquittal. On the other hand, the learned Counsel for the first party urged that this criminal revision itself is not maintainable as it is an order of acquittal against an appeal should have filed and if at all it is allowed to be converted into an appeal it will be barred by limitation. Further it was urged that the complaint under Section 447, IPC is to circumvent the provision of law as complaint was filed by the court itself for violation of its order of attachment and so revision is liable to be dismissed.
6. First of all the plea of non-maintainability of the Cr. Revision (No. 906/88) may be considered. The impugned order dated 12-9-1964 in paragraph 12 says that the complaint is dismissed as not maintainable and that the accused are acquitted under Section 447, IPC and they are discharged from the liability of bonds. So apparently it looks that the order of acquittal has been passed. Section 195(1)(a) of Cr. PC says that no court shall take cognizance of any offence punishable under Section 172-188 (both inclusive) of the Indian Penal Code or of any abetment of or attempt to commit such offence or of any criminal conspiracy to commit such offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 340, Cr. PC deals with the procedure in cases mentioned in Section 195(1)(b) and (c) and not 195(1)(a). Section 342, Cr. PC refers to the provision of appeal against an order under Section 340 of the Code. So under Section 340 an appeal is filed and a revision is not maintainable Section 397, Cr. PC deals about the powers of revision of the High Court and Sessions Judge to call for and examine the record of any proceeding before any inferrior criminal court within its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or properiety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of such inferior court. Section 401 of Cr. PC deals with Court's power of revision to the effect that in the case of any proceeding the record of which has been called for by itself 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 386, 389, 390 and 391 of the Code of Criminal Procedure or on a court of sessions by Section 307, Cr. PC, Sub-section (4) of this Section 401, Cr. PC says that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Sub-section (5) says that where under this Code an appeal lies, but an application, for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal deal with the same accordingly. The Section 378, Cr. PC deals about the appeals against acquittal by the State as well as the complainant. Sub-section (4) of this Section 378 says that if an order is passed in any case instituted upon a complaint and the High Court on an application made by the complainant in this behalf grants special leave from the order of acquittal, the complainant may prefer such appeal to the High Court. Thus no revision lies against an acquittal and if an appeal has not been filed but a revision preferred, then the High Court may treat the petition of revision as an appeal and deal with the same accordingly as provided Section 401, Cr. PC But in the case of Ramgopal Ganpatrai Ruia and Anr. v. State of Bombay the Supreme Court dealing with the scope of Section 439 now 401 has said at pages 103-104 (Para 15):
In other words the argument is that only that order is revisable under the Code. This argument has only to be rejected in view of the wide terms in which Section 439 has been worded. Section 439 has to be read along with Section 435 so far the present controversy is concerned Section 435 specially authorised the High Court besides other courts mentioned therein to call for and examine the record of any proceeding before any inferior criminal court. It has not been, and it cannot be contended that a Presidency Magistrate is not such an inferior criminal court. If the High Court is empowered to call for the records of any proceeding before a Presidency Magistrate, it follows that it may examine the correctness, legality or propriety of any order passed by him and if it finds that the order is not correct or illegal or improper, it may, acting under Section 439 exercise any of the powers conferred on a Court of Appeal by Section 423.... Section 439 only authorises the High Court in revision to exercise any of the powers conferred under Section 423. It does not further make reference to the case in which such powers have to be exercised. The latter question does not arise because Section 439 itself makes the sweeping provision that in the case of any proceeding, the High Court may exercise the powers enumerated under Section 423. We have, therefore, to look into Section 423 to find out not the eases in which the High Court can interfere but only the nature of the power that it can exercise in a case, in its revisional jurisdiction, that is to say, we have to incorporate only the several powers contained in Section 423, into Section 439 except to convert a finding of acquittal into one of conviction.
In the case of Akloo Ahri and Ors. v. Ramdeo Ram p. 2147 (para 8) their Lordships have been pleased to observe:
It is further provided in Section 439(5), Cr. PC that where no appeal is brought in a case in which, an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again, on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of Justice. It is not expected to act under Section 435/439, Cr. PC as if it is a hearing in spite of the wide language under Section 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding and also in spite of the fact that Section 439 it can exercise inter alia the power conferred on a court of appeal under Section 423, Cr. PC. The power being discretionary, it has to be exercised judicially and not arbitrarily.
In the case of Satyandra Nath Dutta and Anr. v. Ram Narain , their Lordships have been pleased to deal with the revisional power of the High Court (in paragraph 3 at page 580):
Section 439(1) of the Code which the revisional powers of the High Court provides that in the exercise of the revisional jurisdiction the High Court may exercise any of the powers conferred on a court of appeal, as the Court of appeal. But Sub-section (4) of Section 439 provides expressly that nothing contained in section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. This provision has been judicially interpreted and it is necessary to refer to the decisions of this Court hearing on the construction thereof In D. Stephens v. Nasibolla . It was held by this Court that the revisional jurisdiction conferred by Section 439 of the Code ought not to be exercised lightly when it is involved by a private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of the law or mis appropiated the evidence on record. In Logendranath Jhav, Polailal 1951 SCR 676: AIR 1951 SC 316 SC 316 : 52 Cri LJ 1248, the High Court, at the instance of a private complainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be retried. This Court held that the provision contained in Section 439(4) of the Code can not be construed to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could, in the absence of any error on a point of law, reappraised the evidence and reverse the findings of facts provided only it stops short of finding the accused guilty and passing sentence on him. The order of retrial based on a reappraisal of evidence was characterised by this Court as a formal compliance with the requirement of Section 439(4). In K. Chinnaswawamy Reddy v. State of Andhra Pradesh , the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure of a point of law resulting in a flagrant miscarriage of justice observed that it was not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. The Court, however, indicated in order to illustrate, a few of the cases in which the revisional jurisdiction could properly be used. An acquittal by a court lacking jurisdiction or excluding evidence which was admissible or relying on inadmissible evidence or where material evidence has been over looked are some of the cases indicated by this Court and justifying the exercise of revisional powers. In Mahendra Praiap Singh v. Sarjug Singh , where the High Court in exercise of its revisional power had, at the instance of a private party, directed retrial of the accused, this Court on a review of the previous decision re-affirmed that the High Court was wrong in entering into minute details of evidence while examining the decision of the Sessions Court under Section 439(4) of the Code. The last decision to which reference may be made in Khetradasi Samal v. State of Orissa . The High Court while exercising its revisional jurisdiction had set aside the order of acquittal on the ground that the Magistrate should not have disbelived the three eye-witnesses, The High Court sought justification for the course it adopted by observing that the Magistrate had not taken the trouble of sifting the grain from the chaff. The order of the High Court was set aside by this Court.
In the case of Bansi Lal and Ors. v. Laxman Singh , the Supreme Court observed at page 1723 (para 9):
The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial court is more narrrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution.
Their Lordships have referred to the decision in the case of K. Chanswamy Reddy v. State of Andhra Pradesh, 1962 SC 1788, in the case of Satyendra Nath Dutta, (supra) which has referred to two decisions in D. Stephens v. Nasibolia AIR SC 196 and Logndranath Jha v. Plailal 1951 SC 316, and have said in K. Chinnaswamy Reddy, decisions that these two cases clearly lay down limits of the High Court's jurisdiction in an order of acquittal in revision. Their Lordships quoted with approval the observations in the case of Akloo Ahir and Ors. v. Ramdeo Ahir, (supra) at page 2147 (Para 8) and said that the same position has been reiterated by the Supreme Court in Satyendra Naih Dutta v. Ram Narain, (supra). The Supreme Court in the case of Sahab Singh and Ors. v. State of Haryana , observed at page 1289 (Para 4):
It is clear from a conjoint reading of Sections 377, 386, 397 and 401, that if the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under Section 377(1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court, from exercising suo motu power of revision under Section 397, read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub-section (4) of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub-section cannot stand in the way of the High Court exercising revisional jurisdiction suo motu.
A full Bench of this Court in the case of Rama Nand Chowdhary v. S.D. pandey and Ors. 1991(1) PUR 171, has referred to the decisions Sahab Singh at page 177 (para 12) and said at page 182 (paras 25 and 26):
The object of this revisional legislation under Section 397 of the Code is to confer upon superior Criminal Courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law land order or on the other hand is some under served hardship to individuals. The Courts enumerated in Section 397 have power to call for the records of subordinate courts for the purpose of satisfying them selves as to the correctness, legality or properiety of the orders passed by the lower courts. The object of the legislation in this section is to set right some patent defect or error.
(2) Section 401 deals with the High Court's power of revision. The Court possesses a general power of superintendence over the actions of Courts subordinate to it. On its administrative side, the power is known as the power of superintendence. On the judicial side, it is known as the duty of revision. The High Court can, at any stage, of its own motion if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them. The revisional jurisdiction of the High Court is discretionary. The section confers no right on a person convicted either by the trial court or a lower appellate court to invoke the revisional jurisdiction of the High Court. The exercise of that jurisdiction is subject to the limitations imposed by the section, that is to say, it is purely discretionary....
Thus it is made out from these decisions that in cases in which an appeal is to be filed by the complainant, but it has not been filed, then no revision by such party shall be accepted and High Court should refain from interfering with the order of acquittal, except where there is a glaring defect of such a nature which has resulted in failure of justice or there is manifest error of law resulting in serious miscarriage of justice or glaring case of injustice resulting from some violation of fundamental principles of law or where the public justice requires interference for the correction of a manifest illegality or prevention of gross miscarriage of justice. The power can be exercised in cases where there is glaring defect in procedure or manifest error on a point of law resulting in miscarriage of justice, or the acquittal is by the Court lacking jurisdiction or by excluding admissible evidence or relying upon inadmissible evidence. Such revisional power should not be exercised when the acquitting court has taken a wrong view of law or mis appreciated the evidence. Such discriminating revisional power should be exercised in exceptional cases judicially and with circumspection and great care and caution. It cannot be said that if an appeal has not been preferred, then a revision is not maintainable at all, even, if there is error of law going to the root of jurisdiction, reliance on inadmissible evidence or rejection of admissible evidence lack of jurisdiction, or erroenous view that it had no jurisdiction, defect of procedure, serious and glaring micarriage of justice or violation on the fundamental principles of law.
7. Learned Counsel for the petitioner has urged that the order of acquittal could not have been passed by the learned Magistrate as he himself was of the view that he had got no jurisdiction to try the same; rather he should have dropped the proceedings. These contentions can be better appreciated in the light of observation of the Apex Court in some of its decisions. In the case of Nagraj v. State of Mysore , Supreme Court observed at page 275 (para 18):
...If the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be procedure to be followed by it i.e. whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of Section 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that Section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If Section 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected.
The Supreme Court in the case of Mohammad Safi v. The State of West Bengal , has dealt with this aspect of the matter at pages 71 to 73 in (paragraphs 5, 6, 7 and 8):-
(5)Under the Code of Criminal Procedure a court can take cognizance of an offence only if the conditions requisite or initiation of proceedings before it as set out in para 8 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 congnizance 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, he felt that having already framed a charge the only manner in which he could put an end to the proceeding 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 fact and for the same offence.
(6) It it 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 punish able 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 Yusofalli Mulla Noorbhoy v. The Kind, 77 Ind App. 158 : AIR 1949 PC 264. That was a case where there was no 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 Privy Council accepted the view of the Federal Court in Basdeo Agarwalla v. King Emperor 1949 FCR 93 : AIR 1945 FC 16 that the prosecution launched without valid sanction is invalid and held that under the common law a plea of autrefoils acquit or convict can only be raised where the 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 case like the present in which the Court which made the order of acquittal was itself of the opinion that it has no jurisdiction to proceed with the case and, therefore, the deceased was not in jeopardy.
(7) As regards the second contention of Mr. Mukherjee it is necessary to point out that 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 by a Court competent to try the case and make a valid order of acquittal or conviction.
(8) 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 was also examined under Section 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 Sri John Beaumont who delivered. 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 Section 430(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 proceeding.
In the case of Ratilal Bhanji Mithani v. State of Maharashtra and Ors. AIR 1979 SC 94, the Supreme Court observed at page 100 in paras 26/A, 26/B, 27,31 and 32:
26-A. Once a charge is framed, the Magistrate has no power under Section 227 or other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge ; prior to it the proceedings are only an enquiry. After the framing of charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the code to discharge the accused, and thereafter he can either acquit or convict the accused unless he decides to proceed under Sections 342 and 562 of the Code of 1892 (which correspond to Sections 325 and 360 of the Code of 1973.
26-B. Excepting where the prosecution must fail for want of sanction, an order of acquittal must be made upon a finding of not guilty turning on the merits of the case and the appreciation of evidence at the conclusion of the trial.
27. If after framing charges the Magistrate whimsically, without appraising of the evidence and without permitting the prosecution to produce all its evidence, discharges the accused, such an acquittal, without trial, even if clothed as discharge, will be illegal....
31. It is thus manifest that in abruptly deleting the charges and discharging the accused, the Magistrate was acting neither in accordance with the observation or directions of Gokhale J. nor in accordance with law.
32. Equally meritless, igenious albeit is the argument that since the Magistrate had no legal power to delete the charges the order of discharge must be construed as an order of acquittal so that the High Court could not interfere with it in revision and direct a retial. Assuming arguendo, the Magistrate's order of discharge was an order of acquittal, then also, it does not alter the fact that this acquittal was manifestly illegal. It was not passed on merit, but without any trial, with consequence failure of justice. The High Court has undoubtedly the power to interfere with such a patently illegal order of acquittal in the exercise of its revisional jurisdiction under Section 439, and direct a retrial. The High Court's order under appeal, directing the Magistrate to take denovo proceedings against the accused was not barred by the provisions of Section 403, (of the Code of 1898), the earlier proceedings taken by the Magistrate being no trial at all and the order passed therein being neither a valid discharge of the accused, nor their acquittal as contemplated by Section 405(1). The Magistrate's order (to use the words of Mudholkar J. in Mohd. Safi v. State of West Bengal ) was merely "an order putting a stop to these proceedings" since the proceedings, ended with that order.
A learned single Judge in the case of Harnamshi V. Digwa v. Thacker Vaji Kunver ji and Ors. 1983 Cr LJ 604 relying upon the aforesaid decision of Nagraj v. State of Mysore and Ratilal Bhanji v. State of Maharashtra (supra) held at page 606:
In the instant case also the learned Magistrate did not record any finding on the merits of the case. He merely came to the conclusion that the proceedings should be dropped because of want of valid sanction or consent which is the sine qua non under Section 20(1) of the Prevention of Food Adulteration Act, Therefore did not record any finding on merits and, therefore, could not have acquitted or convicted the accused under Section 248 of the Code. The learned Sessions Judge was, therefore, wrong in coming to the conclusion that the order passed by the learned Trial Magistrate tantamounts to an order of acquittal. It is on this premise that be dismissed the Revision Application as not maintainable. The premise being erroneous, the order of the learned Sessions Judge cannot be allowed to stand.
8. Thus from all this it is clear that once when a charge has been framed, the magistrate has no power to cancel the charge and discharge the accused. After the charge has been formed and the accused entered into a plea of not guilty, the Magistrate should proceed with the trial and after taking the evidence by the parties should either acquit or convict the accused. An acquittal or conviction must be on merits after consideration of the evidence adduced by the prosecution and defence. Acquittal can be on merits as well as on technical grounds also, but acquittal on merits is only after the consideration of evidence led by the parties. A court, which is competent to initiate a proceedings or to carry on the proceedings can make an order of acquittal these effect would be that the subsequent prosecution would be barred. At times it appears that when the cognizance has been taken and the defect of want of jurisdiction or absence of sanction crops up, then the court should not proceed with the trial. If witnesses have been produced by both sides when a court has no jurisdiction or there is inherent want of sanction, the prosecution becomes bad, illegal and without jurisdiction. In such a situation, the court has to dismiss the complaint and not to proceed with the same. If the charge has been framed then the order of discharge cannot be passed on account of the inherent, defects. Similarly, the order of acquittal also cannot be passed because the case is not based on merits but on technical defects. All proceedings are to be dropped or complaint has to be dismissed but definitely no order of acquittal or discharge can be passed. If such an order of acquittal or discharge is passed without consideration of the materials evidence on the charges, then it is not acquittal order of acquittal has the effect of barring a subsequent trial upon the same facts and for the same offences. A proceeding to become a trial must be held before a court which is competent to hold the same and should be able to pass an order of acquittal or conviction. A court which is itself of the opinion that it has got no jurisdiction to entertain complaint or that the complaint suffers from the vice of sanction cannot pass an order of conviction or acquittal and that too without consideration of the evidence on merits as to the guilt or otherwise of the accused. An order of conviction or acquittal on the erroneous conclusion of lack of jurisdiction and without consideration of evidence on merits, is a nullity and does not bar as subsequent trial a the acquittals are to be made on consideration of the evidence. An order of acquittal purporting to be under Section 248 Cr. PC. after the charge has been framed even in the absence of complaint, has been held to be illegal. Similarly, recording of an order of acquittal without recording finding of a charge is also bad. Such order of acquittal with lack of jurisdiction or even with erroneous belief of lack of jurisdiction and further without consideration of the evidence on merits, is nothing but gross miscarriage of justice, failure of justice, manifest error of law and violation of the fundamentals of law and so revisional Court gets jurisdiction to interfere and exercise its power of interference. In the instant case no doubt, the order of acquittal has been passed but the Court has said that the application under Section 447 was not maintainable. When the application under Section 447 was itself not maintainable then the court should have dismissed the same outright and there could be no order of acquittal or discharge. The court in spite of holding that the complaint was not maintainable and that it had, no jurisdiction to entertain yet passed the order of acquittal, causing grave miscarriage of justice and abuse of process of law, and flagrant disregard and violation of the fundamentals of law. This order cannot be and is not an order of acquittal. So even if the appeal against acquittal has not been filed, this Court can entertain the revision under Section 401 of the Code and pass suitable orders in accordance with law in such exceptional circumstances. As such an order can be looked into by Court in its revisional jurisdiction and simply because the word acquittal has been used the aggrieved person cannot be driven to move the high Court as an appeal against acquittal.
9. Now the question to be considered is also whether this complaint by the second party under Section 447, IPC was maintainable when the order of attachment had been passed and when the court had earlier been moved by the second party to start a proceeding against the first party for violation of the order of attachment and upon that the learned magistrate had himself ordered that of was an order of stay by the High Court (though actually there was no stay and only record had been called for). Section 195(1)(a) Cr. PC says That no court shall take cognizance of any offence punishable under Sections 172 to 188 IPC or abetment or attempt to commit such offence or any criminal conspiracy to commit such offence except on complaint in writing of the public servant concerned or some other public servant whom he may be administratively subordinate. The purpose of such an embargo on a complaint by a private person to move court for violation of the order is to prevent improper or reckless prosecution by private persons for offence in connection with the administration of public justice audit aims at to give protection against vexatious or frivolous prosecutions. The Supreme Court in the case of Patel Laljibhai Somabhai v. The State of Gujarat has observed while dealing with the offence under Section 195(1)(b) and (c) of the Code at page 1939 para 7;
The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seem to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents.
Further it was observed at page 1943 (in para 10).
...The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Section 195(1)(b) and (c) is both to save the accused persons from vexatious or baseless prosecutions inspired by feelings of the vindictiveness on the part of the private complaints to harass their opponents.
This purpose and object of legislation may equally apply to the provisions contained under Section 195(1)(a), Cr. PC.
10. Section 195 has created embargo upon prosecutions by private complainants or parties only in respect of the offences committed under Section 172 to 188, IPC both inclusive of the Indian Penal Code or about any abetment or attempt to commit any such offence or any criminal conspiracy to commit such offences. Thus the prosecution for offences committed under sections other than Sections 172 to 188 if made out from the same facts is not to be started on the basis of the public servant. In the case of Dhirendra Nath Bera v. Nurul Hoda and Ors. AIR 38 1951 Cal 133 a Full Bench of the Calcutta High Court observed at page 136 in para 22:
In my judgment the Special Bench decision in Satish Chandra v. Ramdayal De-24 CWN 982 : 1921 Cal 1 correctly states law on the subject. Sections 195 to 199, Criminal P.C. deal with the requisites for the prosecution of certain specified offences and it appears to me that the provisions of those sections must be limited to prosecutions for the offence actually indicated. If it was the intention of the Legislature to make sanctions or complaints a certain from necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in Sections 195 to 199, Criminal P.C. the Legislature could have said so. But it did not. It only made complaints in particular form or previous sanction necessary for the prosecution of particular offences and it appears to me that to hold that these sections of the Criminal P.C. apply to all prosecutions based on certain facts is clearly erroneous. As pointed out by Sir, Asutosh Mukerjee, A.C.J. in the Special Bench case to which I have made reference, it is the duty of the court to construe these sections and to construe them according to the language used. It is not for a Court to speculate as to what the Legislature should or might have said. Regard can only be had to what the Legislature has said.
The Supreme Court in the case of Basirul Hague and Ors. v. The State of Bengal AIR 1953 SC (sic) 293 referred to this Full Bench decision with approval at page 294, para 6 and observed as under:
The full Bench answered the question referred in the negative. In respect of the conviction Section 297, IPC the learned Judges said that there was nothing in Sections 195 to 199, Cr. PC which could in any way bar the prosecution of the appellants under that section, as it could in no way be said that it arose out of the facts which would constitute in offence under Section 182 or Section 211, Penal Code. On the other hand, it arose from an entirely different set of facts, namely the trespass by the opposite parties in the burial ground and the removal of the corpose from the lighted funeral pier.
Then further observed at same page (in para 9):
The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under Section 182 can be taken cognizance of. It does not further provide that if in the course of commission of that offence other distinct offences are committed, the Magistrate is debarred from taking cognizance in respect of those offences as well. The allegation made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice," and on the other hand, they may also constitute the offence of defamation or some other distinct offence.
Further at page 296 (para 14) Supreme Court held:
Though, in our judgment, Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same fact and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words the provisions of section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other sections of Indian Penal Code, though in truth substance of offence fails in the category of sections mentioned in Section 195, Cr. PC. Merely by changing the garb of label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for. such an offence cannot be taken cognizance of by mis describing it or by putting a wrong label on it.
In the case of Gokhul Singh v. Jagdish Singh and Ors. 1963 BLJR 211 a learned single Judge of this Court (at page 213) after referring to Full Bench decision of Calcutta High Court and that of the Supreme Court, observed at page 213 (paras 5 and 6):
(5)...A party who may have been in possession before an order of attachment, is deprived of possession in any case; however, I do not see why dishonest removal of crops from disputed lands cannot amount to theft. When there is an order under Section 144 prohibiting parties from going upon the disputed lands, and a person dishonestly cuts and removes crops from that land he dishonestly takes the crops out of possession of the party who may be held to have been in possession and to have grown the crops before the order under Section 144 was passed. When an order of attachment under Section 145(4) is in force, the person who dishonestly removes crops from the land in question, takes it out of the possession of the Court, Apart from other offences which may, in different circumstances, be held to have been committed, the party removing the crops may certainly be convicted of theft.
(6) It is perfectly true, as Mr. Chakevarty has argued, that before a Court takes cognizance of an offence under Section 188, there must be complaint by the public servant under Sections 195(1)(a) of Code of Criminal Procedure. 1 find it impossible to agree with his argument, however, that if a person commits an offence under Section 188, he cannot be put upon his trial for any other offence which he commits unless and until the public servant files a complaint. Taking the present case as an instance, the question whether the petitioner and Sheo Prasad Singh were in possession of the disputed plot on the alleged date of occurrence and whether they are one of them had grown the crops has undoubtedly to be enquired into. If the findings on these points are in their favour and if it is further held that the opposite parties dishonestly removed the crops without their consent on the 14th January, 1962 there seems to be no difficulty in holding the opposite party to be guilty of the offence of theft. Opposite parties Jagdish Singh and Gobind Singh, who were directed by the order under Section 144 not to go upon the disputed lands, committed an offence under Section 188 as soon as they went upon those lands. If they removed the crops dishonestly, though they were grown by the petitioners on own behalf or on behalf of Sheo Prasad Singh, an additional offence which they committed was the offence of theft.
A learned single Judge of Calcutta High Court in Kashi Nath Pathak and Anr. v. Kitu Rajwar and Ors. while referring to decision of Basirul Haqu v. State of West Bengal (supra) at page 437 (para (sic) said:
The Supreme Court has not said that in the course of the same transaction several offences are committed and in respect of some of the offences no cognizance can be taken as provided for Section 195(1) of the Code, there can be no prosecution for the other offences also except as provided for in Section 195(1) of the Code. The Supreme Court has on the other hand held that Section 195(1) does not bar the trial of an accused for a distinct offence disclosed by the same facts and which is not included within the ambit of that Section. What the Supreme Court has said is that the provisions of Section 195(1) cannot be evaded by resorting to devices or camouflages. The Supreme Court has laid down a test also. The test is whether the facts disclosed primarily and essentially an offence for which complaint of the court or of the public servant is required. Hence the petitioners allegation was that they were in actual possession of the land the opposite parties formed an unlawful assembly armed with lathis, swords and axes and trespassed into the land. It is true that the allegations prima fade made out an offence under Section 188 of the Code also but it could not be said that the facts disclosed primarily and essentially an offence under Section 188 of Indian Penal Code or that the prosecution under Sections 143, 144 and 144/114 of the Indian Penal Code and for the matter of that fact under Section 447 of the IPC was a device or camouflage to evade the provision of Section 195 of the Code. The decision of the learned Sessions Judge that the prosecution under Sections 143, 144 and 144/114, IPC is barred in law in view of the provision of Section 195(1)(a) of the Code cannot, therefore, be sustained and is set aside.
11. But in the case of Mahendra Prasad Singh and Ors. v. State of Bihar and Anr. a learned single Judge of this Court relying upon the decision in the case of Usman Mistry v. Atul Krishna Ghose AIR 1949 Cal 632 (which has been overruled by the Full Bench in 1951 Cal 133) took a contrary view without referring to and also contrary to the decision in Gokul Chandra v. Jagdish Singh (supra) and held at page 103:
When a particular party is restrained from enjoying the possession of the land, he must be taken to be out of possession for that period. Where is its reference At the time of alleged cutting of the paddy, therefore, it cannot be said that it was the possession of the opposite parties and offence of theft cannot be committed unless the property is moved out of possession of a person. On this ground also the charge of the theft would not be maintainable.
12. However, in the case of Bhagwan Das and Ors. v. S.D.O. Gaya and Ors. 1976 BBCJ 172, a learned single Judge of this Court after referring to the aforesaid decisions of the Calcutta High Court and of this Court and also of Supreme Court concurred with the view taken in Jagdish Singh's case (supra) and did not agree with the view taken in Mahendra Prasad Singh (supra) for the reason that the earlier decision of Gokul Singh had not been brought to the notice of the court and reference had been made to the Calcutta decisions. He has held at page 175 para 8 that during the prohibitory order being in force if an offence under Section 379, IPC has been committed by removal of the crop then prosecution under Section 379, IPC is maintainable. But in the case of Saladi Chandra Rao v. Goilakoti Sambayya 1918 Cri LJ 1378 a learned single Judge of Andhra Pradesh High Court scourt after referring to the decision of the Supreme Court in Basir-ul-Haq (supra) has said that in the complaint under Sections 188, 447,506, 323 and 379, IPC brought in that case offence under Sections 188 and 477, IPC could not be tried except upon a complaint by the Magistrate who had passed an order under Section 145, Cr. PC or his superior as the act of trespass Sunder Section 477, IPC itself constituted disobedience of the order under Section 145, Cr. PC and so an offence falling under Section 188, IPC In the case of State V. Nurul Hasan and Ors. v. State of Jammu 1981 Cri. LJ NOC 68, a Division Bench of Kashmir High Court relying upon the said learned single Judge's decision of Andhra Pradesh High Court held that the land was custodia legis out of the order of attachment trespass committed constituting disobedience of order so it amounted to offence under Section 188 and not 447, IPC and as such charge-sheet by the police not competent and a complaint in writing by the Magistrate was necessary. But the Supreme Court in the case of Durga Charan Naik and Ors. v. State of Orissa , where the prosecution was under Section 353, observed at 178 and 179 in paragraphas 5, 6 and 8:
5...It is well established that Section 195 of the Cr. PC does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section....
6. In the present case we are of the opinion that Section 195 of the Cr. PC does not bar trial of the appellant for the distinct offence under Section 353 of the IPC Though it is practically band of the same facts as for the prosecution under Section 186, IPC.
7. We have expressed the view that Section 195, Cr. PC does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of fact and which is not included within the ambit of the section, but we must point out that the provisions of Section 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the letter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the IPC though in truth and substance the offence fails in the category of sections mentioned in Section 195 Cr. PC Merely by changing grab of label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis describing it or by putting a wrong label on it. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under Section 353, IPC was by way of evasion of the requirements of Section 195, Cr. PC But we are satisfied that there is no substance in this argument and there is no camouflage or evasion in the present case.
13. Thus from all this is clear that an aggrieved person can file a complaint under the other provisions of the Indian Penal Code than those under Sections 172 to 188 both inclusive of the IPC for which a complaint by the authority concerned whose order has been flouted is to file and for other offences there is no bar. But if upon said set of facts the offence includes under Sections 172 to 198 both inclusive are there and also they are offences punishable under other sections then prosecution for the other offences is not borred. But a complaint by a private party for other offence should not be by resorting to devices or camouflage or by adopting grab or label of offence which is essentially covered by the provisions of Section 195, Cr. PC on the said set of fact if the two offences one for which cognizance has been taken by the complainant can be definitely tried by the Magistrate without the complaint by the authority whose order has been violated. For every offence and though the facts of this case may disclose primarily and essentially an offence under Section 188 and also make out a case under Section 447, IPC which cannot be said that the complaint under Section 447 was a device to evade the provisions of Section 195, Cr. PC As such the complaint under Section 447 IPC could not be held to be incompetent.
14. Learned Counsel for the petitioner first party has drawn our attention to the fact that as the proceeding under Section 145 had continued the learned Magistrate by order dated 11-9-1985 has declared the possession of the first party over the land in dispute against which the second party had filed a Cr. Revision in the court of the learned Sessions Judge and the same is pending. This order has not been brought on record. Further this is subsequent event which is not relevant for the purpose of this case.
15. As regards Cr. Rev No. 1056/83 which had been filed against the order dated 5-10-1983 refusing to take action against the second party and asserting that the court below was not correct in going to the spot and holding that there was a gumti already in existence. It appears that alter the attachment the first party complained that the second party wanted to keep a gumti for paan and so it was violation of the order of the court. After hearing the parties the court held that in the written statement the second party has said that gumti was already in existence and there was nothing about charge of putting any gumti thereafter. The court further said that the order under Section 188 was not duly promulgated as such there was no violation of attachment. Here the learned Counsel for the first party urged that this order has been on the basis of the statement of the counsel for the second party and that the court has made a local inspection and so the order is bad. But the fact remains that in the show cause under Section 144, Cr. PC the second party has said that he was keeping the gumti which appears to be well established before the order of attachment had been passed. As such it cannot be said that the gumti had been kept after attachment. The court has itself said that there was no promulgation of the order of attachment at that point of time itself.
16. Buring the course of arguments, it was pointed out that in respect of the property in dispute a title suit No. 203/70 was between Gauri Shankar Jha and Ors. v. Chinta Nath Jha and the same has been dismissed on 31-3-1934. Judgment has been passed dismissing the claim of the plaintiff in that case, against which F.A. No. 384/1984 is pending (Gauri Shanker Jha v. Chintanath Jha) in this Court. The record of the first appeal was summoned on the request of the parties and the position has been ascertained. Thus it appears that the Civil Court has already decided the matter between the parties and the same is to be acted upon in accordance with law. In the case of Ram Sunder Puri Mahant v. State of U.P. AIR 1985 SC 472 the Supreme Court has observed:
There is no scope to doubt or dispute the position of the Civil Court is binding on the Criminal Court in a matter like the one before us. Counsel for respondent No. 2,5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for an adequate protection of the property during the pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceeding should not continue and the order of the learned Magistrate should be quashed.
Later on the Supreme Court in the case of Jhunemal and Deven Das v. State of U.P. Cri. Appl. 139/87, decided on August 25, 1988, 1988 BLJR Summary of Cases, 1981 at page 40 has said:
That there is no scope to doubt or dispute the position that the decree of the Civil Court is building on the criminal Court in a matter like the one before us. Counsel for respondent 2, 5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We, therefore, satisfied that parallel proceedings should not continue and the order of learned Magistrate should be quashed.
...An order made under Section 145, Cr. PC deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the Civil Courts. The unsuccessful party, therefore, must get relief only in the civil Court. He may move the Civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil Court has jurisdiction to give a finding different from that which the Magistrate has reached.
17. In view of these observations the proceedings for 145 or 146 should not have been there. Yet the proceedings continued and as appears from the order of the learned Magistrate dated 5-10-1983 (subject of challenge under Cr. Rev. No. 1056/83) that the order of attachment was not duly promulgated. Further it also appears that on account of the said Cr. Rev. 1056/83 record of the case had been called for and proceeding could not continue though there was no stay order, yet the first party in violation of the order appears to have put stairs and filled up earth for which the second party approached the court and the court by its order dated 12-11-1984 has said that on account of the stay order proceeding could not be continued and so the complainant filed a complaint on 19-12-1984. In these circumstances it cannot be said that the complaint was a device to evade provision of Section 195(1)(a), Cr. PC Definitely Section 447 IPC is not within the ambit of 195(1)(a) of the Code and the court took cognizance of the offence but the court after taking cognizance framed charge and took evidence of the parties. But strangely enough, at the end without looking to the merits of the case of the parties held that the complaint was not maintainable and passed order of acquittal. The Magistrate while holding that it has no jurisdiction to entertain the complaint and was himself doubtful of his jurisdiction. After framing of the charge and taking of the evidence acquitted the accused first party without deciding the case on merits. Thus the order of acquittal was not warranted, he could neither acquit the accused nor could have discharged him. He ought to have dismissed the complaint as not maintainable. The order of acquittal in the facts and circumstances was putting a bar to the further prosecution of the first party, even if resort to Section 105(1)(a) could have been taken by the Magistrate. Thus the order of acquittal is illegal and mullity. As this order has been given a nomenclature of an order of acquittal the second party could also file revision. As such this revision is maintainable and the impugned order dated 12-9-1988 being illegal is liable to be quashed.
18. In the result, the Cr. Rev. 906/88 is allowed the above-mentioned order dated 12-9-1988 is quashed. It will be for the court to consider the matter in accordance with law. Further the Cr. Rev. 1056/82 against the order dated 5-10-1983 is also dismissed.