IN RE: RAJA GOUNDAN AND ANR. Vs. STATE

JUDGEMENT

(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 Sec. 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 Sec. 323, Indian Penal Code and posted it for enquiry under Sec. 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 Sec. 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.

(2.) During the hearing of the Criminal Miscellaneous Petition, I found several suspicious circumstances regarding the disposal of the private complaint and entertained grave doubts about the legality and validity of the order of acquittal passed by the Sub -Magistrate, Sankari and passed the order dated 7th February, 1966 for suo motu taking up in revision to consider the validity and legality of the order dated 20th September, 1965 in C.C. No. 3464 of 1965 on the file of the Sub -Magistrate, Sankari, for the reasons stated therein, and it forms the subject -matter of Criminal Revision Case No. 178 of 1966.

(3.) The rule autrefois acquit under Sec. 403, Criminal Procedure Code, has been held in several cases to apply also to statutory acquittals under Ss. 247, 248, 345 and 494, Criminal Procedure Code. In re Dudekula Lal Sahib : AIR1918Mad231 . Abdur Rahim, J., pointed out that the word 'tried' or 'trial' has not been defined anywhere, that the trial of a summons case commences as soon as the process is issued and that if the Magistrate took cognizance of an offence and issued process, the proceedings are to be terminated by an order, either of acquittal or of conviction, unless the proceedings are stopped under Sec. 249, Criminal Procedure Code. But Napier, J., following an earlier bench decision In re Kotayya, I.L.R.(1917) Mad. 977 to which he was a party, held that a person could not be said to have been tried in a case, while he has not been served with the summons. On this difference of opinion, the matter went before Wallis, C.J., who concurred with Abdur Rahim, J., that the acquittal of the accused on the withdrawal of the case by the Public Prosecutor under Sec. 494, Criminal Procedure Code was a bar to a subsequent trial for the same offence. He has observed that he found great difficulty in saying that the accused had been tried and acquittal within the meaning of Sec. 403, Criminal Procedure Code, in the case of statutory acquittals. According to him, the intention of the Legislature was that the withdrawal by the Public Prosecutor at any stage in those trivial cases which are tried as summons cases without the framing of any charge was to have the same effect as a withdrawal of a case after a charge had been framed. In Kutumibayya v/s. Lakshminarasimha Rao : AIR1943Mad6 , it was held that