GANDI APPA RAZU Vs. KING-EMPEROR

JUDGEMENT

(1.) It is contended on behalf of the petitioner the first accused, that the learned Sessions Judge had no jurisdiction to order his committal to the Sessions on charges under Sections 147 and 304, Indian Penal Code, and that his order to that effect must be set aside.

(2.) As regards the charge under Section 147, Indian Penal Code, we think the contention is well-founded, as the accused was acquitted by the Sub-Magistrate on that charge, under Section 258, Criminal Procedure Code. So long as that order of acquittal stands, he cannot be again charged and tried for that offence on the same facts. Section 403, Criminal Procedure Code, is a bar to it. It was not open to the Sessions Judge to set aside that acquittal, or to treat it merely as an order of discharge as he seems to have done. His order so far as it refers to Section 147, Indian Penal Code, must therefore be set aside.

(3.) But the charge under Section 304, Indian Penal Code, stands on a different tooting. Though the complaint alleged facts against this accused constituting an offence under Section 302, Indian Penal Code, the Sub-Magistrate disbelieved the evidence on the point, and did not frame any charge under Section 302, or 304, Indian Penal Code. His action amounted in law to an order of discharge on those counts, even though no express order of discharge was recorded by him. See Krishna Reddi v. Subbamma (1901) I.L.R., 24 Mad., 136. That being so, it was open to the Sessions Judge under Section 436, Criminal Procedure Code, to act suo motu and set aside the implied discharge and direct the committal of the accused to the Sessions on being satisfied that he had been improperly discharged, as the offence under Section 304, Indian Penal Code, is one exclusively triable by the Sessions Court.