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18. The view, adopted in the decisions cited in the argument, that the Magistrate is competent to do so, seems to rest on two assumptions. One of the assumptions is that because the plea of a previous acquittal is not available for the accused in cases where I ho complaint is dismissed or where the accused is discharged, therefore, it is competent to renew the prosecution even though the order dismissing the complaint or the order discharging the accused, has not been set aside. On principle this assumption is clearly unsound. Now, of course, the reason for the plea of autrefois acquit is that an accused person should not, in respect of an offence, be in jeopardy of prosecution more than once. Though, technically, such a plea cannot be relied on where there has been no trial resulting in an actual, acquittal, it would be impossible to contend that the great principle with reference to which the law allows the said plea should be inapplicable to oases where the prosecution failed before it reached that stage without any fault on the part of the accused. If it is justice that a person, prosecuted on a former occasion upon evidence which appeared sufficiently strong to warrant his being put on trial and being called upon for his defence and his evidence, should not be vexed again in the matter when the trial terminates in his favour, it must, a fortiori, be so, when the evidence on which his prosecution was initiated was so weak as to justify the trial being concluded earlier and the accused discharged and saved from the necessity of entering upon the vindication of his innocence. Purely it is also but good sense to hold that, when a Magistrate after examining the complainant and taking the steps authorized by law to satisfy himself as to its being well-founded, dismisses it under Section 203, the complainant should not be permitted to renew his complaint so long as the order against him stands undisturbed. Were it otherwise, the complainant in such unfounded cases would have the power to vex his opponent and waste public time without limit inasmuch, as if it is allowable to a complainant to renew his complaint once it would logically follow he could do so as often as he chooses, the authorities being powerless to prevent such action on his part except by recording a judgment of acquittal so as to enable the accused to plead the acquittal in bar of such frivolous proceedings by the complainant. Nor is authority wanting for the view that even where the plea of autrefois acquit is net technically available, the principle of it is available for the accused when the interests of justice require its extension in his favour. Bishop, in his Commentaries on the law of Criminal Procedure, after pointing out that according to the better doctrine a person is in legal jeopardy when the jury is empanelled and ready to try him on a valid indictment and there is no latent or patent obstacle in the judicial path to prevent the cause proceeding to the end, observes then, if, contrary to his rights and without his consent, the cause is suffered to break off before a verdict of acquittal or conviction is reached, there cannot technically be a plea of autrefois acquit or autrefois convict by reason of this jeopardy, yet the prisoner is entitled in some way to rely upon it afterwards for his protection. (Edition of 1866, volume I, Section 573.) The same jurist devotes Sections 584 to 587 to the consideration of what he calls the defence of former jeopardy, when neither of the pleas autrefois acquit or autrefois convict is available, and lays down that a plea analogous to the plea of autrefois acquit setting out the special facts which show the jeopardy may be brought forward as the proper method of taking the objection and in suggesting a form for this plea, he inserts the clause "and the said A (accused) further saith, that, though no verdict was reached in said case, the failure thereof was not owing to any consent by him the said A made or given, or any interposition of Providence, or any other thing which in law should subject the said A. to be again put in jeopardy; and the record of the said former jeopardy still remains, and is in no way reversed or made void."

19. Such being the necessary deductions from the fundamental principle nemo bis vexari, let us see whether there is anything in the provisions of the Criminal Procedure Code which preclude the plea analogous to autrefois acquit being set up by a person against whom prosecution is sought to be revived, while the order dismissing the complaint against him or discharging him has not been set aside. In determining the precise scope and effect of Section 403 (on the explanation to which so much stress was laid by Mr. Rangachariar) the departure made by the framers of the Code in using the term "acquittal" in a sense different from what is ordinarily attached to it as a term of English law, must be understood. Now it is scarcely necessary to say that the words "conviction" and "acquittal" have meanings of various shades. Burgess v. Boetefeur 8 Scott N.R. 194 is in point. There Tindal, C.J., observes "undoubtedly 'conviction' is verbum equivccum: it is used sometimes to denote the verdict of the jury, and at other times in its strict legal sense, to denote the judgment of the Court" - at p. 211. Again at p. 212 he observes "So, the word ' acquittal' is an equivocal expression : in common parlance a party is said to be acquitted by the verdict of the jury finding him not guilty; but it is only the formal judgment of the Court that in legal intendment satisfies the word acquittal." Turning to the meaning of the latter term as given by lexicographers, according to Webster it is "a setting free, or deliverance from the charge of an offence, by verdict of a jury or sentence of a Court. "Bouvier in his" "Law Dictionary" expresses the same in similar words "the absolution of a party accused on a trial before a traverse jury." Another explanation of the term by the latter author is "the absolution of a party charged with a crime or misdemeanor." The distinction between the two meanings of course is that the absolution in the former or the narrower sense takes place when the trial has reached its last or final stage, while in the latter case the absolution is at some earlier stage, of the trial. Under the common law the plea of autrefois acquit was technically available only where there was an acquittal after verdict or sentence. In the case already cited Tindal, C.J., points this out when he observes" a plea of autrefois acquit or autrefois convict could only be satisfied by the production of a regular record that is a judgment following a verdict. Our Criminal Procedure Code, however, has modified the common law rule in regard to certain instances by special provisions. Thus under Section 333 of the Code, a nolle prosequi by the Advocate-General operates as an acquittal if the Judge so directs. Under Section 494 on the withdrawal from prosecution after a charge has been framed or when no charge is required, acquittal follows. Similarly in summons cases under Section 248 if the complainant withdraws with the permission of the Magistrate. These are dear instances in which the plea of autrefois acquit could not have been raised according to the common law for the reason that there could be no judgment or verdict in those oases. Thus acquittal as used in Section 403 comprises cases which would not be oases of acquittal but for the Code. Having thus altered the strictly legal signification of the term in regard to those instances not by any definition of the term in Section 403 but by provisions in other parts of the Code, it was necessary for the Legislature to guard against the term being extended to cases not contemplated to be comprehended by it and to which the plea of autrefois acquit was in its strictly technical aspect not applicable. It was for this purpose that the explanation to Section 403 seems to have been added, but not, I take it, with the object of barring resort to a plea analogous to autrefois acquit in cases where such plea ought to be allowed on grounds of justice. But Mr. Rangachariar reads the words "is not au acquittal for the purposes of this section" in explanation to Section 408 as equivalent to "in no way bars a fresh prosecution for the same offence" or words to that effect. Is it right to attribute to the Legislature an intention to leave, say, a person discharged by a Magistrate having jurisdiction to be proceeded against a second time, for the same offence, subject to no qualification whatever? That could be right if the maxim nemo bis vexari would not be thereby contravened. The observation of Bishop quoted above that legal jeopardy begins when the jury is empanelled and there is no obstacle to the trial of the prisoner being proceeded with has reference to a system where trials are before a jury and the anterior proceedings are in the nature of non-judicial investigations. (Cf. Stephen's ' History of the Criminal Law of England,' Vol. 1, p. 497.) But under our Criminal Procedure Code even in oases committable to a Court of Session the enquiries by a Magistrate are judicial proceedings (Section 4(m) of the Criminal Procedure Code) and in cases triable by himself, his enquiries are of course none the less so. Ninety-nine out of a hundred of these cases are triable without jury and therefore the jeopardy in connection with the matter under consideration cannot but he held to attach at all events the moment an accused person appears before a Magistrate whether under a warrant or a summons and the case is ready for the prosecution evidence being taken. It is impossible, therefore, to say that either in fact or in point of law an accused person who has once been discharged and who is put up again before the Magistrate for the same offence is not in jeopardy within the spirit of the rule nemo bis vexari and, consequently, it is unreasonable to suppose that the Legislature implied that an accused person who had been discharged by a Magistrate, having jurisdiction, is not exposed to jeopardy a second time in being proceeded with for the same offence, and therefore meant to lay down that a plea analogous to autrefois acquit was unavailable in such oases. That in theory the Legislature looked upon a discharge as standing on an almost equal footing with an acquittal cannot be shown more emphatically than it is by Section 250 of the Criminal Procedure Code though that section deals only with offences triable by Magistrates. The provision made thereby that a Magistrate may award compensation to the accused person not only when he is acquitted but likewise when he is discharged is not consistent with any other view. It is impossible to justify such an award if the theory of the Code is that the discharge of an accused is virtually no better than a stay of proceedings which will cease when the complainant or the Magistrate chooses to move in the matter. If it be asked, why then maintain any distinction between "acquittal" and "discharge" with reference to an accused's right to set up former jeopardy, the answer, obviously, is that acquittal, as a decision arrived at after a fuller enquiry than that in which the discharge is ordered ought to carry with it the comparatively important right of enabling the accused to rely on the plea of autrefois acquit instead of one in the nature of or analogous to such a defence. Cases of dismissal of complaint under Section 203 stand more or less on a similar footing to oases of discharge for our present purpose, and the only proper intention to be attributed to the Legislature is that it did not permit the commencement of fresh proceedings in respect of the same offence so long as the order of discharge or the order of dismissal remains in force, ample provision having been made in Section 437 for setting aside such orders in revision. No doubt the above reasoning will not apply to the other two oases referred, to in the explanation to Section 403, viz., stay of proceedings under Section 249 and entry under Section 273. What the preliminaries are for the continuation of proceedings stayed, or renewal of the charge on which entry is made, are matters unprovided for expressly in any part of the Code and on general principles the Magistrate who ordered the stay of proceedings under Section 249 may for good reasons remove the stay and proceed further and as regards the entry under Section 273 the High Court may likewise remove the stay and sanction the case to go on. It may not be perhaps out of place to add that the English Criminal Procedure also, though it is less homogenous than the Indian Criminal Procedure Code does not tolerate the anomaly of a complainant renewing his accusation repeatedly inasmuch as a prosecution once launched must proceed until it runs out its course. Sir F. Stephen says : "The unlimited power to institute prosecutions does not carry with it an unlimited control over them when they are instituted. When a charge has been made the maker of it is usually bound over to prosecute, and when a bill has been sent before the grand jury} the matter is entirely out of the original prosecutor's bands and must run its course unless the Court before which it is to be tried sanctions the withdrawal of the charge, or unless the Attorney-General as the representative of the Crown, the nominal prosecutor, enters a nolle prosequi, which operates not as an acquittal, but as a stay of proceedings upon the particular case to which it refers "- 'History of the Criminal Law of England' vol. I, p. 496 (see also ib.).