# MOHAMMAD SAFI v. THE STATE OF WEST BENGAL

- **Citation:** [1965] 3 S.C.R. 467
- **Court:** Supreme Court of India
- **Decided:** 1965-03-25
- **Bench:** A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohammad-safi-v-the-state-of-west-bengal-3507
- **Pages:** 7

## Headnote

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 barred.
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, LP.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 acquitting the appellant. A formal complaint against the
appellant was then preferred by the Public Prosecutor before the
s1.1ccessor-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 ac.quitted upon the same facts by the former Special
Judge, his trial over again for the same offence was barred bv s. 403
of the Code.
HELD: The trial and eventual conviction of the appellant were
valid in law, because, the e·arlier order of the Special Judge did not
amount to an order of acquittal as contemplated by s. 403(0
It
was merely an order putting a stop to the proceedings.
Section 403(1) can be successfully pleaded as a bar to a sutsequent trial for the same offence or for an offence based on the
facts, where the accused had been (a) tried bv a court (b) of competent jurisdiction and (c) 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 irl 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 acquitting the appellant was in fact
" nullity. [470E; 471A-B, HJ
.
Ywiofalli Mulla Noorbboy v. The King, L.R. 76 LA. 158, applied.
467
.
468
SUPREME COURT REPORTS
(1965) 3 S.C.R·
The fact that a charge had been framed w<ould not help the
A
appellant. A criminal court is precluded from determining the case
before it in which a charge has been fnmed otherwise than by
making an order of acquittal or conviction, only where the charge
was framed by a competent court. But in the present cas<e, 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 provisi(\lls of s. 494 of the Code could not be
B
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-El
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. c
[473E-FJ
-

## Text

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MOHAMMAD SAFI
v.
THE STATE OF WEST BENGAL
March 25, 1965
[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.)
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 barred.
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, LP.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 acquitting the appellant. A formal complaint against the
appellant was then preferred by the Public Prosecutor before the
s1.1ccessor-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 ac.quitted upon the same facts by the former Special
Judge, his trial over again for the same offence was barred bv s. 403
of the Code.
HELD: The trial and eventual conviction of the appellant were
valid in law, because, the e·arlier order of the Special Judge did not
amount to an order of acquittal as contemplated by s. 403(0
It
was merely an order putting a stop to the proceedings.
Section 403(1) can be successfully pleaded as a bar to a sutsequent trial for the same offence or for an offence based on the
facts, where the accused had been (a) tried bv a court (b) of competent jurisdiction and (c) 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 irl 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 acquitting the appellant was in fact
" nullity. [470E; 471A-B, HJ
.
Ywiofalli Mulla Noorbboy v. The King, L.R. 76 LA. 158, applied.
467
.
468
SUPREME COURT REPORTS
(1965) 3 S.C.R·
The fact that a charge had been framed w<ould not help the
A
appellant. A criminal court is precluded from determining the case
before it in which a charge has been fnmed otherwise than by
making an order of acquittal or conviction, only where the charge
was framed by a competent court. But in the present cas<e, 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 provisi(\lls of s. 494 of the Code could not be
B
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-El
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. c
[473E-FJ
-
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No: 18
of 1963.
Appeal from the judgment and order dated September 24,
I 962 of the Calcutta High Court in Criminal Appeal No. 601 of
1%Q
D
D. N. Mukherjee, for the appellant.
P. K. C hakravarti and P. K. Bose, for the respondent.
The Judgment of the Court was delivered by
Mudholkar, J. The only point which has been urged inAhis
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, LP.C. b'
Mr. T. Bhattacharjee, Judge., Birbhum Special Court and sentenct<
to undergo rigorous imprisonment for four years.
His convictin
was maintained in appeal by the High Court but the sentence ,as
reduced to rigorous imprisonment for two years.
One of the pints
urged before the High Court was that upon the same fact1and
with respect to the same offence the appellant was tried earlF by
Mr. N. C. Ganguly, Judge, Birbhum Special Court and
thereof.
He could, therefore, not have been tried over .-am m
respect of that offence and consequently his conviction id sentence are illegal.
What actually happened was this. The appe!IanfNho was ·
a shed clerk at Sainthia Railway Station is alleged
mitted criminal breach of trust with respect to 8 bags
had been booked by rail at Murarai by one Bhikam (l_nd
the consignee being the firm of Lalchand Phusraj
He
wa3 alleged to have done this in conspiracy with brah1m and
Nepal Chandra Das. We are not concerned with the two persons
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MOHD. SAFI v. STATE (Mudholkatr, J.)
(69
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, Birbhum 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 ame11dment of s. 5 (!) of the
West Bengal Criminal Law Amendment (Special Courts) Act, 1949
by Act 27 of 1956 take cognizance upol) a charge sheet because
it is neither entitled to follow the procedure for trial under s. 251-A
nor can it take cognizance 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(') 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 thus:
"So the proceeding is without jurisdiction. 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
to the notice of this Court, the accused persons
agamst whom charge was framed should be acquitted. As
the
)Jersons. ar_e
because the entire proceedmg is without 1umd1ct10n I am of opinion that it is
necessaiy (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, )960 and Mr. Bhattacharjee who had
succeeded. Mr. Ganguly as Judge of the Special Court, Birbhum
cogmzance of the offence and commenced a fresh proceeding
agamst 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
and the appeal from the conviction was dismissed
by the High Court.
(') [1958] Cr. L.J. 1386.
470
SUPREME COURT REPORTS
[1965] 3 S.C.R.
· 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 unde.r section
237."
These provisions are based upon the general principle of auterfoi.1·
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 be·
cause the court lacked jurisdiction. This is what has been pointed
out by the Court of Criminal Appeal in Thoma!; Ewart Flower v.
R. ('). 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 com·
petent 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 conditionnequisite 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
• (') 40 Cr. App. R. 189.
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MOBD. SAFI v. STATE (Mudholkar, J.)
471
A 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
B 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(') and, therefore, he could legally acquit the
C 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
D the court can
either in acquittal or in conviction and in no
other way.
HP 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
E 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
F 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
G 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
H 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 Mu/la
Noorbhoy v. The King('). That was a case where there was no
(') [1963] 1 Supp. S.C.R. 953.
(1) L.R, 76 I.A. 158.
472
SUPREME COURT REPORTS
(1965) 3 S.C.R.
valid sanction as required by cl. 14 of the Hoarding and Profiteer- A
ing 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 B
further evidence was called for by the prosecution and some of
the witnesses were recalled for cross-examination. On the date of
hearing, however, counsel for prosecution made a statement to the
following effect:
"In view of the High Court decision in Revisional
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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 cross-examination
nor to lead any further evidence."
·
Thereupon the Magistrate recorded an order in the following D
terms:
"Mr. Mullick's evidence is deleted.
Accused acquitted
for reasons to be recorded separately."
After referring to the statement of counsel for the prosecutio11 E
and the order made on it the Magistrate continue\!:
"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."
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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 dealt H
with according to law.
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 Agarwalla v .. King Emperor(') that the prosecution launched without
valid sanction is invalid and held that under the common law a
plea of auterfois acquit or convict can only be raised where the
(') [1945] F.C.R. 93.
MOHD. SAFI v.
(Mudholkar, J.)
473
A 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 pfinciple 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
B 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 detennining the case before it in which a charge has been framed otherwise
C 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.
D 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.
E
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
F 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
G made by it by whatever name it is characterised cannot in Jaw
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 fon 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
B 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.
Appeal dismissed.