Mohammad Safi Vs. The State of West
Bengal  INSC 80 (25 March 1965)
25/03/1965 MUDHOLKAR, J.R.
CITATION: 1966 AIR 69 1965 SCR (3) 467
CITATOR INFO :
RF 1979 SC 94 (32)
Code of Criminal Procedure (Act 5 of 1898),
s. 403(1)Proceedings before a Special Judge-Erroneous assumption of want of
jurisdiction-Acquittal of accused after framing charge-Subsequent trial, if
A charge sheet was filed in the Special Court
constituted under the West Bengal Criminal Law Amendment (Special Courts) Act,
1949, against the appellant for an offence under s. 409, I.P.C. After the
examination of the prosecution witnesses a charge was framed. Thereafter, the
prosecution witnesses were cross-examined and the accused was questioned under
s. 342 of the Criminal Procedure Code.
At the time of hearing arguments, the Public
Prosecutor placed before the Special Judge two judgments of the High Court
according to which the Special Court could not take cognizance upon a charge
sheet and that therefore the entire proceedings were without jurisdiction.
Though the case was in fact allotted to the Special Judge by a Government
notification, he held that he had no jurisdiction to proceed, and as the charge
had already been framed, made an order a-,quitting the appellant. A formal
complaint against the appellant was then preferred by the Public Prosecutor
before the successor-in-office of the Special Judge and a fresh proceeding was
commenced against the appellant which ended in his conviction. His appeal to
the High Court was dismissed.
In his appeal to this Court, the appellant
contended that since he was tried and acquitted upon the same facts by the
former Special Judge, his trial over again for the same offence was barred. by
s. 403 of the Code.
HELD: The trial and eventual conviction of
the appellant were valid in law, because, the earlier order of the Special
Judge did not amount to an order of acquittal as contemplated by s. 403(1) It
was merely an order putting a stop to the proceedings.
Section 403(1) can be successfully pleaded as
a bar to a subsequent trial for the same offence or for an offence based on the
same facts, where the accused had been (a) tried by a court (b) of competent
jurisdiction and (e) acquitted. It is only a court which is Competent to
initiate proceedings or to carry them on that can properly make an order of
acquittal which will have the effect of barring a subsequent trial upon the
same facts and for the same offence. It is true that in the instant case the
former Special Judge could have properly taken cognizance of offence because of
the allotment and, therefore, the proceedings before him were in fact not
vitiated by reason of lack of jurisdiction. But where a court says, though erroneously,
that it was not competent to take cognizance of the offence, it has no power to
acquit that person of the offence. Therefore, the order a-.quitting the
appellant was in fact a nullity. [470E; 471A-B, H] Yusofalli Mulla Noorbboy v.
The King, L.R. 76 I.A. 158, applied.
468 The fact that a charge had been framed
Would not help the appellant. A criminal court is precluded from determining
the case before it in which a charge has been framed otherwise than by making
an order of acquittal or conviction, only where the charge was framed by a
competent court. But in the present case, since the former Special Judge was,
on his own view, not competent to take cognizance of the offence, he was
incompetent to frame the charge.
Similarly, the provisions of s. 494 of the
Code could not be attracted, because, that provision also assumes the
withdrawal by a Public Prosecutor of a charge competently made and before a
court competent to entertain the withdrawal application. [473C-E].
Moreover, the earlier proceedings could not
be deemed to be a trial at all, because, for proceedings to amount to a trial,
they must be held before a court which is in fact competent to hold them and
which is not of the opinion that it has no jurisdiction to hold them. [473E-F]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 18 of 1963.
Appeal from the judgment and order dated
September 24, 1962 of the Calcutta High Court in Criminal Appeal No. 601 of
D. N. Mukherjee, for the appellant.
P. K. Chakravarti and P. K. Bose, for the
The Judgment of the Court was delivered by
Mudholkar, J. The only point which has been urged in this appeal by certificate
from a judgment of the High Court at Calcutta is whether the trial and
conviction of the appellant for an offence under s. 409, Indian Penal Code were
barred by the provisions of s. 403 of the Code of Criminal Procedure
(hereinafter referred to as the Code).
The facts which are not in dispute are these:
The appellant was tried for an offence under
s. 409, I.P.C.
by Mr. T. Bhattacharjee, Judge, Birbhum
Special Court and sentenced to undergo rigorous imprisonment for four years.
His conviction was maintained in appeal by
the High Court but the sentence was reduced to rigorous imprisonment for two
years. One of the points urged before the High Court was that upon the same
facts and with respect to the same offence the appellant was tried earlier by
Mr. N. C.
Ganguly, Judge, Birbhum Special Court and
He could, therefore, not have been tried over
again in respect of that offence and consequently his conviction and sentence
What actually happened was this. The
appellant who was a shed clerk at Sainthia Railway Station is alleged to have
committed criminal breach of trust with respect to 8 bags of suji which had
been booked by rail at Murarai by one Bhikam Chand Pipria, the consignee being
the firm of Lalchand Phusraj of Sainthia. He was alleged to have done this in
conspiracy with Ibrahim and Nepal Chandra Das. We are not concerned with these
two persons 469 and so we can leave them out of account. The offence was
investigated into and a charge sheet was submitted against the appellant under
s. 409, I.P.C. and two other persons by the Officer-in-charge, Government
Railway Police, Asansol.
Apparently he filed the charge sheet himself
in the court of Judge, Birbbum Special Court. However, as set out in the order
of Mr. Ganguly acquitting the appellant the case was distributed to the Birbhum
Special Court for trial by notification No. 4515-J dated May 8, 1959 (Law
Judicial Department), Government of West Bengal. The prosecution examined 21
witnesses before him and on August 28, 1959 he framed a charge against the
appellant under s. 409, I.P.C.
The prosecution witnesses were cross-examined
on behalf of the appellant and the court examined him under s. 342 of the Code.
At the time of the hearing of arguments the Public Prosecutor placed before him
a typed copy of a judgment of the High Court in Criminal Appeal No. 377 of 1958
in which it was held that a Special Court cannot, in view of the amendment of
s. 5(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 by
Act 27 of 1956 take cognizance upon a charge sheet because it is neither
entitled to follow the procedure for trial under s. 251-A nor can it take
cognizancc under s. 190(1)(c) unless in the latter case the provisions of s.
191 of the Code were complied with. The attention of the learned Judge was also
drawn to A. P. Misra v. The State(1) where it was held that where a magistrate
could not legally take cognizance of an offence on the basis of a charge sheet
the entire proceedings before him are without jurisdiction. In view of these
decisions the learned Judge made an order of which the relevant portion runs
"So the proceeding is without
As the unreported decision of their Lordships
was not available at the time of framing of charge, charge was framed against
the accused person and the case continued as usual. As the unreported decision
of their Lordships has come to the notice of this Court, the accused persons
against whom charge was framed should be acquitted. As the accused persons are
acquitted because the entire proceeding is without jurisdiction I am of opinion
that it is necessary (sic) to discuss the evidence on record and decide the
merits of the case." Thereafter a formal complaint was preferred by the
Public Prosecutor on May 16, 1960 and Mr. Bhattacharjee who had succeeded Mr.
Ganguly as Judge of the Special Court, Birbhum took cognizance of the offence
and commenced a fresh proceeding against all the accused persons, including the
appellant. He framed a charge under s. 409, I.P.C. against the appellant and
eventually convicted and sentenced him with respect to it, as already stated,
and the appeal from the conviction was dismissed by the High Court.
(1)  Cr. L.J. 1386.
470 In order to appreciate the argument
advanced before us by Mr. D. N. Mukherjee on behalf of the appellant it is
necessary to set out the provisions of sub-s. (1) of s. 403 of the Code. They
are as follows;
"A person who has once been tried by a
Court of competent jurisdiction for an offence and convicted or acquitted of
such offence shall, while such conviction or acquittal remains in force, not be
liable to be tried again for the same offence, nor on the same facts for any
other offence for which a different charge from the one made against him might
have been made under section 236 or for which he might have been convicted
under section 237." These provisions are based upon the general principle
of auterfois acquit recognised by the English courts. The principle on which
the right to plead auterfois acquit depends is that a man may not be put twice
in jeopardy for the same offence. This principle has now been incorporated in
Art. 20 of the Constitution. The defence of auterfois acquit, however, has no
application where the accused person was not liable lawfully to be convicted at
the first trial because the court lacked jurisdiction. This is what has been
pointed out by the Court of Criminal Appeal in Thomas Ewart Flower v. R.(1).
From the language used in s. 403(1) of the Code it is clear that what can be
successfully pleaded as a bar to a subsequent trial for the same offence or for
an offence based on the same facts is that the accused had been (a) tried by a
court, (b) of competent jurisdiction and (c) acquitted of the offence alleged
to have been committed by him or an offence with which he might have been
charged under s. 236 or for which he might have been convicted under s. 237, of
the Code. Mr. Mukherjee, however, says that in so far as competency of the
court is concerned it was there because the offence in question was cognizable
by a Special Court and Mr. Ganguly made the order of acquittal as Judge of the
Special Court. The competence of a court, however, depends not merely on the
circumstance that under some law it is entitled to try a case falling in the
particular category in which the offence alleged against the accused falls. In
addition to this taking cognizance of the offence is also material in this
regard. Under the Code of Criminal Procedure a court can take cognizance of an
offence only if the conditions requisite for initiation of proceedings before
it as set out in Part B of Chapter XV are fulfilled. If they are not fulfilled
the court does not obtain jurisdiction to try the offence. In the case before
us Mr. Ganguly took the view, though erroneously, that as one of the conditions
requisite for taking cognizance of the offence was not satisfied he had no
jurisdiction over the matter. Having come to that conclusion he had no option
but to put a stop to those proceedings. It appears, however, that he (1) 40 Cr.
App. R. 189.
471 felt that having already framed a charge
the only manner in which he could put an end to the proceedings was by making
an order of acquittal. It requires, however, no argument to say that only a
court which is competent to initiate proceedings or to carry them on can
properly make an order of acquittal, at any rate, an order of acquittal which
will have the effect of barring a subsequent trial upon the same facts and for
the same offence. Mr. Mukherjee, however, raises two contentions on this aspect
of the matter. In the first place, according to him, the view taken by Mr. Ganguly
that he could not have taken cognizance of the offence was erroneous as has
been pointed out by this Court in Ajit Kumar Palit v. State of West Bengal(1)
and, therefore, he could legally acquit the appellant. He further says that
since Mr. Ganguly had not only framed a charge against the appellant but also
examined all the witnesses both for the prosecution and for the defence and
recorded the examination of the appellant he had completed the trial. In the
second place, he says, that where a charge has been framed against an accused
person in a warrant case the proceedings before the court can end either in
acquittal or in conviction and in no other way. He points out that under s. 494
of the Code the Public Prosecutor may with the consent of the court withdraw
before a certain stage is reached, the prosecution of any person and that the
only order which the court is competent to make is to acquit the accused if the
withdrawal is made after a charge has been framed.
It is true that Mr. Ganguly could properly
take cognizance of the offence and, therefore, the proceedings before him were
in fact not vitiated by reason of lack of jurisdiction.
But we cannot close our eyes to the fact that
Mr. Ganguly was himself of the opinion-and indeed he had no option in the
matter because he was bound by the decisions of the High Court-that he could
not take cognizance of the offence and consequently was incompetent to try the
appellant. Where a court comes to such a conclusion, albeit erroneously, it is
difficult to appreciate how that court can absolve the person arraigned before
it completely of the offence alleged against him. Where a person has done
something which is made punishable by law he is liable to face a trial and this
liability cannot come to an end merely because the court before which he was
placed for trial forms an opinion that it has no jurisdiction to try him or
that it has no jurisdiction to take cognizance of the offence alleged against
him. Where, therefore, a court says, though erroneously, that it was not
competent to take cognizance of the offence it has no power to acquit that
person of the offence. An order of acquittal made by it is in fact a nullity.
In this connection we might profitably refer to the decision in Yusofally Mulla
Noorbhoy v. The King(2).
That was a case where there was no (1) 
1 Supp. S.C.R. 953.
(2) L.R. 76 I.A. 158.
472 valid sanction as required by cl. 14 of
the Hoarding and Profiteering Prevention Ordinance, 1943 for the prosecution of
the appellant therein on separate charges of hoarding and profiteering. The
sanction for the prosecution had been granted by the Controller General of
Civil Supplies who was authorised to give such sanction by virtue of a
notification of the Government of India duly published. Charges were framed by
the Magistrate and thereafter further evidence was called for by the
prosecution and some or the witnesses were recalled for cross-examination. On
the date of hearing, however, counsel for prosecution made a statement to the
"In view of the High Court decision in
Revisional Application No. 191 of 1945, as this court is not competent to try
this offence, he does not wish to tender the witnesses already examined for
further crossexamination nor to lead any further evidence." Thereupon the
Magistrate recorded an order in the following terms:
"Mr. Mullick's evidence is deleted.
Accused acquitted for reasons to be recorded separately." After referring
to the statement of counsel for the prosecution and the order made on it the
"On a perusal of the said decision,
however, I find that the filing of this charge sheet by the prosecution itself
is invalid in law, because the sanction is signed by the Controller-General
under a Notification of the Government of India, and the said Notification does
not state that the various officers therein mentioned are not below the rank of
a District Magistrate. Thus it is the incompetence of the prosecution to
proceed against the accused without sanction as provided for in law. As,
however, the invalidity of the sanction invalidates the prosecution in court,
the accused was acquitted." The Government filed an appeal against the
order of acquittal The High Court allowed it and set aside the orders of the
Magistrate acquitting the appellant and directed that the case should be tried
by another Magistrate having jurisdiction to try it and deal with according to
Against the decision of the High Court the
appellant took an appeal to the Privy Council. The Privy Council accepted the
view of the Federal Court in Basdeo Agar walla v. King Emperor(1) that the
prosecution launched without valid sanction is invalid and held that under the
common law plea of auterfois acquit or convict can only be raised where the (1)
 F.C.R. 93.
473 first trial was before a court competent
to pass a valid order of acquittal or conviction. Unless the earlier trial was
a lawful one which might have resulted in a conviction, the accused was never
in jeopardy. The principle upon which the decision of the Privy Council is
based must apply equally to a case like the present in which the court which
made the order of acquittal was itself of the opinion that it had no
jurisdiction to proceed with the case and therefore the accused was not in jeopardy.
As regards the second contention of Mr.
Mukherjee it is necessary to point out that a criminal court is precluded from
determining the case before it in which a charge has been framed otherwise than
by making an order of acquittal or conviction only where the charge was framed
by a court competent to frame it and by a court competent to try the case and
make a valid order of acquittal or conviction. No doubt, here the charge was
framed by Mr. Ganguly but on his own view he was not competent to take cognizance
of the offence and, therefore, incompetent to frame a charge. For this reason
the mere fact that a charge had been framed in this case does not help the
appellant. Similarly the provisions of s. 494 of the Code cannot be attracted
to a case of this kind because that provision itself assumes the withdrawal by
a public prosecutor of a charge competently made and before a court competent
to entertain the application for withdrawal.
In addition to the competent of the court, s.
403 of the Code speaks of there having been a trial and the trial having ended
in an acquittal. From what we have said above, it will be clear that the fact
that all the witnesses for the prosecution as well as for the defence had been
examined before Mr. Ganguly and the further fact that the appellant was also
examined under s. 342 cannot in law be deemed to be a trial at all. It would be
only repetition to say that for proceedings to amount to a trial they must be
held before a court which is in fact competent to hold them and which is not of
opinion that it has no jurisdiction to hold them. A fortiori it would also
follow that the ultimate order made by it by whatever name it is characterised
cannot in law operate as an acquittal. In the Privy Council case it was
interpreted by Sir John Beaumont who delivered the opinion of the Board to be
an order of discharge. It is unnecessary for us to say whether such an order
amounts to an order of discharge in the absence of any express provision
governing the matter in the Code or it does not amount to an order of
discharge. It is sufficient to say that it does not amount to an order of
acquittal as contemplated by s. 403(1) and since the proceedings before the
Special Judge ended with that order it would be enough to look upon it merely as
an order putting a stop to the proceedings. For these reasons we hold that the
trial and eventual conviction of the appellant by Mr. Bhattacharjee were valid
in law and dismiss the appeal.