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1. Petitioners in Crl. M.P. No. 3247 of 1965 are the accused in P.R.C. No. 22 of 1965, on the file of the Sub-Magistrate, Sankari, initiated on a police charge-sheet under Section 307, Indian Penal Code. The first petitioner Raja Goundan is the husband of second petitioner Sattiammal and the son of the complainant Chinna Goundan. Chinna Goundan got himself divided from his four sons. But he was living with and looking after the properties of his minor son Subramaniam. Raja Goundan was inimically disposed towards his father as he felt that his father was giving all his income to his youngest son but was also giving him trouble. On the morning of 8th September, 1965 at 7 A.M. when Chinna Goundan went to the well owned in common by his sons, Raja Goundan and Subramaniam to irrigate the ' lands of Subramaniam, Raja Goundan prevented him from doing so, picked up a quarrel and, at that time, both Raja Goundan and his wife Sattiammal lifted him and threw him into the well saying that it was better that they got rid of him. But hearing his shouts, the neighbours rushed to the well and rescued him. He got himself treated for the simple injuries by the doctor at the Government Hospital, Sankari and gave a complaint to the Police on the same day. But as the police did not make any enquiry, or arrest the accused, Chinna Goundan preferred a complaint before the. Sub-Magistrate, Sankari, on 15th September, 1965. The Sub-Magistrate, Sankari recorded the sworn statement of Chinna Goundan, and took the case on file under Section 323, Indian Penal Code and posted it for enquiry under Section 203, Criminal Procedure Code. But, on 18th September, 1965, Chinna Goundan entered into a compromise with the accused in the presence of Panchayatdars and on 20th September, 1965, the Sub-Magistrate, Sankari, permitted him to withdraw the complaint and acquitted the accused under Section 248, Criminal Procedure Code. Subsequently, the police filed the charge-sheet dated 20th September, 1965 in the Sub-Magistrate's Court on 22nd September, 1965 and it was taken on file as P.R.C No. 22 of 1965. The accused, Raja Goundan and Sattiammal have filed this Criminal Miscellaneous Petition No. 3247 of 1965 to quash the proceedings in P.R.C. No. 22 of 1965 on the file of the Sub-Magistrate, Sankari, on the ground that the acquittal on the private complaint operated as a bar to the prosecution on the same facts on police charge-sheet.

4. In Kandaswami v. The Executive Officer, Panchayat Board, Attur (1947) 1 M.L.J. 172 : A.I.R. 1947 Mad. 306, it has been held that under Section 242, Criminal Procedure Code, the trial of a summons case begins when the accused appears, or is brought before a Magistrate and not when he is asked to show cause why he should not be convicted and hence the withdrawal of a complaint under Section 248, Criminal Procedure Code even before the accused is questioned under Section 242, Criminal Procedure Coder would amount to a trial and acquittal within the meaning of Section 403, Criminal Procedure Code.

7. In Jawana Singh v. Bhadai Shah , the Supreme Court has held that where on receipt of a complaint the Magistrate proceeded to examine the complainant on oath under Section 200, Criminal Procedure Code and made the order in these words " To S.I. for instituting a case and report" the order is one under Section 202, Criminal Procedure Code and the Magistrate has taken cognizance of the offence on the complaint and an appeal by the complainant against the order of acquittal lies to the High Court under Section 417(3), Criminal Procedure Code. The learned Advocate for the accused relied on this decision and contended that the trial of the summons case on the complaint of Chinna Goundan had commenced in this case as the Sub-Magistrate had taken cognizance by ordering an enquiry under Section 202, Criminal Procedure Code. But even according to) the broader of the two views of the word " trial", as stated in Haveli Ram v. 'Municipal Corporation of Delhi , a trial in a summons case commences only when the Court takes cognizance of a complaint and had ordered issue of process for the accused to appear. There is a clear distinction between an enquiry and a trial as would be evident from the scheme of the Criminal Procedure Code. In Chandra Deo Singh v. Prokash Chandra Bose . the Supreme Court has discussed the scope of Section 202, Criminal Procedure Code and pointed out that it is clear from the scheme of Chapter XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued and that an enquiry under Section 208, Criminal Procedure Code can in no sense be characterised as a trial for the simple reason that in law there could be but one trial for an offence. In Haveli Ram v. Municipal Corporation of Delhi , it has been held that the withdrawal of a complaint may be made either even before process for summoning the accused is issued, or after the process has been issued, but before the accused has been served and has appeared, or after he has appeared, and that Chapters XVII and XX should not be read in separate and isolated manner, but must be read collectively with Section 403, Criminal Procedure Code. But I have very grave doubts whether Section 248, Criminal Procedure Code can be invoked even in a summons case by a complainant, when the case is still in the stage of the proceedings covered by Chapter XVI of the Code of Criminal Procedure, in other words, where the stage of issue of process had not reached The proper order for a Magistrate to pass before that stage is reached is to dismiss the complaint and not to pass an order of acquittal. The acquittal of the accused in C.C. No. 3464 of 1965 on the file of the Sub-Magistrate, Sankari, cannot operate as a bar to the trial of the accused in P.R.C. No. 22 of 1965 on the file of the same Court.

10. The learned Advocate for the accused referred to the decision in D. Stephen v. Nosibella in support of his contention that the revisional jurisdiction conferred on the High Courts under Section 439, Criminal Procedure Code, is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal and that it would 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. But it is clear from what I have stated that the order of the Sub-Magistrate acquitting the accused in P.R.C. case by clutching at jurisdiction by reducing the offence to one under Section 323 Indian Penal Code, is manifestly illegal and requires to be corrected. In Chinnaswami v. State of Andhra Pradeshb the Supreme Court has pointed out that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. It. was pointed out in that decision that it was not possible to lay down the criteria for determining such exceptional cases which could cover all contingencies. In Matukdhari Singh v. Janardan Prasad (1966) 1 S.C.J. 225 : (1966) M.L.J (Crl.) 140, it has been held that if the justice of the case clearly demands it, the High Court may set aside an order of acquittal and that a case of omission from the charge of a serious offence prima facie disclosed by evidence is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence if framed, would have ousted the Court of trial Of its own jurisdiction. If the case had been taken on file under Section 307, Indian Penal Code, as it ought to have been done, on the facts alleged by the complainant and spoken to in his sworn statement, the Sub-Magistrate would have no jurisdiction to try the case, but only to held a preliminary enquiry. In Raimen Ho v. State A.I.R. 1965 Orissa 6 the complainant preferred a complaint to the police and the Magistrate against the two persons under Section 324, Indian Penal Code. But the Magistrate took the Case on file on the private complaint under Section 323, Indian Penal Code, and the police filed a charge-sheet under Section 324, Indian Penal Code, and when both the cases came up for hearing, the complainant filed a petition before the Magistrate stating that he was with drawing his case as the police had preferred a charge-sheet. The order of the Magistrate acquitting the accused under Section 248, Criminal Procedure Code, like the one in this case, was not legal or proper and the High Court in the exercise of its revisional jurisdiction sue main set aside the order and substituted another order in the following words: