K H ANNE GOWDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition is directed against the order d/.20-1-1975 passed by the Sessions Judge, Chickmagalur, on the two applications of the two petitioners, in SC. No.27 of 1974.

(2.) The necessary facts may be stated briefly as follows: In regard to the murder of one Bobegowda, a case in Crime No.62 of 1973 was registered on 13-10-1973. On completion of the investigation a charge-sheet was filed against these two petitioners only. On 16-11-73, the case was registered as CC.2319 of,1973. The Magistrate inquired into the case and committed the petitioners by his order d/. 15-3-1974 and framed a charge against them for having committed an offence under S.302 read with 34 IPC. He read over and explained the charge to the petitioners and directed them to take trial before the Court of the Sessions Judge, Chickmagalur. The records of the case reached the Court of the Sessions Judge, Chickmagalur, on 23-3-1974. The case was ordered to be registered as SC.5 of 1974. The trial of the case was posted on 15-7-1974. But by that time, on 29-6-1974, the Public Prosecutor filed an application under S.494 CrlPC, 1898 (hereinafter referred to as the old Code), praying for permission of the Court to withdraw from the prosecution. The Sessions Judge passed an order giving permission and in the cowrse of that order he ordered that the two petitioners, who were the only accused in that case, were discharged. Thereafter, the State Govt ordered fresh investigation into the offence and that was done. After that investigation, a charge-sheet was filed before the JMFC, II Court, Chickmagalur, as against these two petitioners and three others. The two petitioners were shown as Al and A5. As this charge-sheet was filed after 1-4-1974, the Magistrate, on finding that there appeared to be an offence exclusively triable by the Court of the Sessions Judge, committed the five accused under S.209 CrlPC, 1973 (hereinafter referred to as the New Code). The case was registered as SC.27 of 1974 in the Court of the Sessions Judge, Chickmagalur. Then these two petitioners filed the applications under Section 300 of the New Code contending that by virtue of the order d/.29-6-74 passed by the Sessions Judge on the application filed by the Public Prosecutor under S 494 of the old Code, they have been, in law, acquitted and as such, they could not be once again prosecuted. The Sessions Judge dismissed these applications by the order in question.

(3.) Sri B. K. Ramachandra Rao, learned Counsel appearing on behalf oi the petitioners, pointed out that the Sessions Judge, Chickmagalur, followed the procedure prescribed under the old Code while dealing-with SC.5 of 1974 and passed the order dl .15-7-1974, on the application filed by the Public Prosecutor. He contended that under S.207(A) (7) of the old Code the Magistrate had framed a charge, read over and explained the charge to the petitioners, and therefore S.494(b) of the old Code applied. He, further argued that even though the Sessions Judge, has, in his order d/.29-6-1974, ordered discharge of the petitioners as a consequence of the Public Prosecutor withdrawing from prosecution, the legal effect of granting the permission is the one mentioned in S.494(b) of the old Code, and that is acquittal of the petitioners. He, pointed out that the necessary ingredients of S.300 of the new Code are satisfied and as such, the petitioners cannot, in law, be prosecuted over again for the same offence of which they have been acquitted and that too, on the basis of the same set of facts.