STATE OF KARNATAKA Vs. K H ANNEGOWDA

JUDGEMENT

(1.) This appeal by special leave raises a short but interesting question of law relating to the interpretation of central provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Old Code"). The facts giving rise to the appeal are few and may be briefly stated as follows.

(2.) One Bobegowda was murdered and in regard to this incident a case was registered at the Police Station on 13th October, 1973 as Crime No. 62 of 1973. The police investigated the case and after the investigation was complete, a charge-sheet was filed against the respondents in the Court of Judicial Magistrate, 1st Class Chikmagalur and the case was registered as S. C. No. 2819 of 1973. The learned Magistrate held an inquiry in accordance with the provisions of Chapter XVIII of the old Code and being of the opinion that the respondents should be committed for trial, the learned Magistrate framed a charge against the respondents for having committed an offence under Section 302 read with Section 34 of the Indian Penal Code. The learned Magistrate then read and explained the charge to the respondents and after giving an opportunity to the respondents to give in a list names of witnesses whom they wished to be summoned to give evidence, the learned Magistrate made an order committing the respondents for trial by the Court of Session, Chickmagalur. This order of committal was made on 15th March, 1974 and in pursuance of it, the records of the case were forwarded to the Court of Session, Chickmagalur where they reached on 23rd March, 1974 and the case was registered as S. S. No. 5 of 1974. The Sessions Judge fixed the trial of the case on 15th July, 1974 but before that date, the Public Prosecutor filed an application on 29th June, 1974 praying for permission to withdraw from the prosecution under Section 494 of the old Code. The learned Sessions Judge by an order passed on the same day accorded permission to the Public Prosecutor to withdraw from the prosecution and 'discharged' the respondents in respect of the offence charged against them. The State thereafter ordered fresh investigation into the offence and in consequence of such investigation, a new charge-sheet was filed against the respondents and three other accused in the Court of Judicial Magistrate, 1st Class, Chickmagalur. Since this charge-sheet was filed after 1st April, 1974 when the Code of Criminal Procedure, 1973 (hereinafter referred to as "New Code") had come into force, the learned Magistrate, following the provisions of the New Code, committed the respondents and the other three accused to stand their trial before the Court of the Sessions Judge, Chickmagalur for the same offence. When the case came up for hearing before the Sessions Judge, the respondents made an application contending that by virtue of the Order dated 29th June, 1974 made by the Sessions Judge under Section 494 of the old Code, the respondents had been acquitted and they were, therefore, not liable to be prosecuted again for the same offence in view of Section 300 of the new Code. The Sessions Judge rejected the application, taking the view that the respondents were discharged and not acquitted under the Order dated 29th June, 1974 and, therefore, Sec. 300 of the new Code was not applicable and there was no bar against their fresh prosecution for the same offence. The respondents challenged this Order by preferring a revision application to the High Court. This revision application was allowed and the High Court* held that though the Order passed by the Session Judge directed that the respondents be 'discharged', the legal effect of this Order was to bring about the acquittal of the respondents since the withdrawal from the prosecution was made after the charge had been framed and the respondents having been acquitted under that Order, the bar of Section 300 of the new Code was attracted and the respondents were not liable to be prosecuted again for the same offence. This order made by the High Court is challenged in the present appeal preferred by the State with special leave obtained from this Court.

(3.) It may be pointed out that before the High Court it was contended on behalf of the State that the earlier case before the Sessions Judge, viz., Sessions Case No. 5 of 1974, was governed by the provisions of the new Code and, therefore, in view of Section 228 of the new Code, it was the obligation of the Sessions Judge to frame a charge before proceedings with the trial and since the withdrawal from the prosecution was effected before the framing of such charge by the Sessions Judge, the order passed by the Sessions Judge amounted to an order of discharge and not of acquittal. This contention was, however, not pressed at the hearing of the appeal before us and it was conceded, and in our opinion rightly, that the earlier case before the Sessions Judge was governed by the provisions of the old Code and the new Code had no application to it. Section 484 of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force. Here in the present case the Judicial Magistrate had already made an order of committal on 15th March, 1974 and pursuant to that order, the records of the case had reached the Court of the Sessions Judge on 23rd March, 1974. The case was, therefore, already before the Court of Session prior to 1st April, 1974 and it was pending before that court for trial on 1st April, 1974 when the new Code came into force. It is immaterial as to when the case was actually registered and a number given to it. Since the case was pending for trial before the Sessions Court on 1st April, 1974, it was liable to be tried in accordance with the provisions of the old Code and it was for this reason that the application for withdrawal from the prosecution was also made by the Public Prosecutor under Sec. 494 of the old Code and not under the corresponding provision of the new Code. Section 494 of the old Code provides that any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict and in other cases, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offenses for which he is tried and the section then goes on to add that :