# Nahar Singh v. State

- **Citation:** [1967] 2 S.C.R. 368
- **Court:** Supreme Court of India
- **Decided:** 1967-01-17
- **Bench:** K. SueBA RAO, J. c. SHAH, s. M. SIKRI, v. RAMASWAMI, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nahar-singh-v-state-3967
- **Pages:** 10

## Headnote

Code of Criminal Procedure (Act 5 of 1898). ss. 209(1), 403, 437
and 439-Police comploint of major offence triable by Sessions CourtMagistrate framing charge for minor offence-Accused tried and acquitted
of minor offence by Magistrate-Sessions Court setting aside acquittal and
directing committal for major offence-Order of Sessions Court confirmed by High Corm-Jurisdiction of Sessions Court-Acquittal of minor
ofience, if res judicata regurding tnajor offence.
The police filed a charge sheet against the 3ppdlon1 and 01hers for
an offence under s. 307, read wiih ss. 148 and 149 of Ihe Penal Code.
The Maeistra1e, after examining the prosecution witnesses passed an order
under s. 209( I) Criminal Procedure Code, that no case under s. 307
was made out, and decided to try the accused for offences under ss. 326
and 338, l.P.C.
After a regular trial for 1hose offences, the Magistrale
passed another order acquitting the accused.
The prosecution moved the
Sessions Judge under s. 437 Cr. P.C .. and he held that the accused were
improperly discharged of the offence under s. 307 l.P.C., set aside the .
order of acquittal for the offence under SS. 326 and 338 J.P.C., and
directed the Magistr<?IC to commit the accused to Se5sions on charges
under ss. 307, 148 and 149 l.P.C.
The High Court in revision, ·onfirmed the order of the Sessions Judge with respect to •he appellant'ftone
and directed his committal under s. 307 l.P.C.
In appeal to this Court, the jurisdiction of the Sessions Judge to set
aside the acquittal and to direct committal was questioned.
HELD : (I) The Sessions Judge had jurisdiction to set aside the first
order of the Magistrate and to direct the committal. [373 A)
·
The order of the Magistrate is not an express order of di.charge of the
appellant for the offence under s. 307, 1.P.C. Uut i< tantamount •o an
implied order of discharge. The language of s. 437 Cr. P.C .. however, is
wide. and there is nothing to indicate that the power of the Sessions Court
can be exercised only wheft the :\iagistrate had made an express order of
discharge.
In fact, under s. 209( I) Cr. P.C., such an express order is
contemplated only in a case where the Magistrate comes to the conclusion that the allegations against the accused do not amount to any offence
at all; and not in a case where-, upon the same facts, it is possible to say
that though no offence exclusively triable by a Court of Session was made
out. an offence triable by a Magistrate is nevertheless made out. [372
B-EJ
,
Nahar Singh v. State,
A.LR. 1952
All.
23l(F.B.) and Sambhu
Charan v. State 60 C.W.N. 709. overruled.
(2) The Sessions Court hld no a•Jthority to set aside the acquittal
with respect to the offences under ss. 326 and 338, but since the order
was affirmed by the High Court, the High Court must be deemed to have
itself set aside the order of acquiual by the Magistrate, under s. 439
Cr, P.C. [375 G]
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RAMEKBAL v. MADAN MOHAN (Ramaswami, J.)
369
(3) In view of s. 403 ( 4) Cr.P.C. there could be a fresh charge and
trial under s. 307 l.P.C. in spite of the acquittal of the appellant on the
mindr charges,
because~ the Magistrate was not competent to try the
offence under s. 307 1.P.C. The general principle of res judicata also,
would not apply, because, the order of acquittal by the Magistrate must
be deemed to have been validly set aside by the High Court. [376 C;
377 CJ
CRIMINAL APPFLLATE JURISDICTION : Criminal Appeal No. 213
of 1964.
Appeal by 3pecial leave from the judgment and order dated
May 8, 1964 of the Patna High Court in Criminal Revision No. 162
of 1961.
Nur-ud-din Ahmed and R. C. Prasad, for the appellant.
U. P. Singh, for respondent No. I.
B. P. Jha, for respondent No. 2.

## Text

RAMEKBAL TIWARY
\'.
MADAN MOHAN TIW ARY & ANR.
January 17, 1967
[K. SueBA RAO, C.J., J. c. SHAH, s. M. SIKRI, v. RAMASWAMI
AND C. A. VAIDIALINGAM, JJ.)
Code of Criminal Procedure (Act 5 of 1898). ss. 209(1), 403, 437
and 439-Police comploint of major offence triable by Sessions CourtMagistrate framing charge for minor offence-Accused tried and acquitted
of minor offence by Magistrate-Sessions Court setting aside acquittal and
directing committal for major offence-Order of Sessions Court confirmed by High Corm-Jurisdiction of Sessions Court-Acquittal of minor
ofience, if res judicata regurding tnajor offence.
The police filed a charge sheet against the 3ppdlon1 and 01hers for
an offence under s. 307, read wiih ss. 148 and 149 of Ihe Penal Code.
The Maeistra1e, after examining the prosecution witnesses passed an order
under s. 209( I) Criminal Procedure Code, that no case under s. 307
was made out, and decided to try the accused for offences under ss. 326
and 338, l.P.C.
After a regular trial for 1hose offences, the Magistrale
passed another order acquitting the accused.
The prosecution moved the
Sessions Judge under s. 437 Cr. P.C .. and he held that the accused were
improperly discharged of the offence under s. 307 l.P.C., set aside the .
order of acquittal for the offence under SS. 326 and 338 J.P.C., and
directed the Magistr<?IC to commit the accused to Se5sions on charges
under ss. 307, 148 and 149 l.P.C.
The High Court in revision, ·onfirmed the order of the Sessions Judge with respect to •he appellant'ftone
and directed his committal under s. 307 l.P.C.
In appeal to this Court, the jurisdiction of the Sessions Judge to set
aside the acquittal and to direct committal was questioned.
HELD : (I) The Sessions Judge had jurisdiction to set aside the first
order of the Magistrate and to direct the committal. [373 A)
·
The order of the Magistrate is not an express order of di.charge of the
appellant for the offence under s. 307, 1.P.C. Uut i< tantamount •o an
implied order of discharge. The language of s. 437 Cr. P.C .. however, is
wide. and there is nothing to indicate that the power of the Sessions Court
can be exercised only wheft the :\iagistrate had made an express order of
discharge.
In fact, under s. 209( I) Cr. P.C., such an express order is
contemplated only in a case where the Magistrate comes to the conclusion that the allegations against the accused do not amount to any offence
at all; and not in a case where-, upon the same facts, it is possible to say
that though no offence exclusively triable by a Court of Session was made
out. an offence triable by a Magistrate is nevertheless made out. [372
B-EJ
,
Nahar Singh v. State,
A.LR. 1952
All.
23l(F.B.) and Sambhu
Charan v. State 60 C.W.N. 709. overruled.
(2) The Sessions Court hld no a•Jthority to set aside the acquittal
with respect to the offences under ss. 326 and 338, but since the order
was affirmed by the High Court, the High Court must be deemed to have
itself set aside the order of acquiual by the Magistrate, under s. 439
Cr, P.C. [375 G]
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RAMEKBAL v. MADAN MOHAN (Ramaswami, J.)
369
(3) In view of s. 403 ( 4) Cr.P.C. there could be a fresh charge and
trial under s. 307 l.P.C. in spite of the acquittal of the appellant on the
mindr charges,
because~ the Magistrate was not competent to try the
offence under s. 307 1.P.C. The general principle of res judicata also,
would not apply, because, the order of acquittal by the Magistrate must
be deemed to have been validly set aside by the High Court. [376 C;
377 CJ
CRIMINAL APPFLLATE JURISDICTION : Criminal Appeal No. 213
of 1964.
Appeal by 3pecial leave from the judgment and order dated
May 8, 1964 of the Patna High Court in Criminal Revision No. 162
of 1961.
Nur-ud-din Ahmed and R. C. Prasad, for the appellant.
U. P. Singh, for respondent No. I.
B. P. Jha, for respondent No. 2.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from
i)le judgment of the Patna High Court dated May 8, 1964 in Criminal Revision No. 162 of 1961 affirming the order of the Additional
Se5si?ns Judge pf Arrah in Criminal Revision No. 194 of 1960
ordering the appellant to be committed to Sessions for being tried on a
E
charge under s. 307, Indian Penal Code.
It appears that the police submitted a charge-sheet against the
appellant and 8 others in respect of offences under s. 307, read with
ss. 148 and 149, Indian Penal Code on the information lodged by
Gourishankar Tiwari, alleging that the accused had formed an unlawful assembly and, in prosecution of the common object, the
F
appellant Ramekbal Tiwary injured the informant with a gunshot.
The defence of the appellant was that Gourishankar Tiwari had raided his house with several other persons and in self-defence· he used
his gun inside his house as a result of which Gourishanker Tiwari
received injuries. The Magistrate to whom the case was transferred
by the subdivisional Magistrate, started an enquiry under Ch. XVIII
G
of the Criminal Procedure Code and, having examined eleven prosecution witnesses and heard the arguments of the parties, decided
to try the accused under s. 251A of the Criminal Procedure Code
for offences under ss. 326 and 338 of the Indian Penal Code, because
in his opi;1ion, the evidence did not make out an offence under s.
307, Indian Penal Code. This order was made by the Magistrate
H
on March 19, 1960. Thereafter the Magistrate held a regular trial
with regard to charges under ss. 326 and 338, Indian Penal Code
a!o.d acquitted the appellant and the other accused of those charges
by his order dated July 13, 1960. On behalf of the prosecution, an
MISup. C!/67-10
370
SUPallMll C:OtlaT UPOl.TI
[1967] 2 S.C.R.
application in revision was made to the Additional Sessions Judge
who allowed the application and set aside the two orders of the
Magistrate dated March 19, 1960 and July 13, 1960 and directed
the Magistrate to commit the appellant and the other accused to the
Court of Sessions on charges under ss. 307 and J 48, and. 307 read
with s. 149 of the Indian Penal Code. The appellant took the
matter in revision in Revision No. 162of1961 before the Patna High
Court which, by its judgment dated May 8, 1964 held that the appellant was improperly discharged by the Magistrate and the order of
the Additional Sessions Judge for his commitment under s. 307,
Indian Penal Code was therefore justified. With regard to the other
accused persons, the High Court held that there was no evidence
to justify their commitment and the order of the Additional Sessions
Judge with regard to these accused persons was set aside.
The first question involved in this appeal is whether the Additional Sessions Judge had jurisdiction under s. 437, Criminal Procedure Code to direct the commitment of the appellant to Sessions
Court on a charge under s. 307, Indian Penal Code in the 'circumA
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stances of this case.
D
In order to decide this question it is desirable to examine thCJ
relevant provisions of the Criminal Procedure Code. Section 417
Criminal Procedure Code states :
; ·
"When, on examining the record of any ease under s.
435 or otherwise, the Sessions Judge or District Magistrate considers that such case is triable exclusively by the
Court of Session and that an accused person has been
improperly discharged by the inferior Court, the Sessions
Judge or District Magistrate may ca•1se him to be arrested,
any may thereupon, instead of directing a fresh inquiry,
order him to be committed for trial upon the matter of
which he has been, in the opinion of the Sessions Judge or
District Magistrate, improperly discharged :
Provided as follows :
(a) that the accused has had an opportunity of
showing cause to such Judge or Magistrate why
the commitment should not be made;
(b) that if such Judge or Magistrate thinks that
the evidence shows that some other offence has
been committed by the accused, such Judge or
Magistrate may direct the inferior Court to inquire
into such offence."
Section 207, Criminal Procedure Code provides that in every
inquiry before a Magistrate where the case. is t~iable excl~s.ively by a
Court of Session or Htgh Court, or, which m the opm1on of the
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llAMEKllAL v. MADAN MOHAN (Ramaswami, J.)
371
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Magistrate, ought to be tried by such Court, the Magistrate must in
any proceeding instituted on a police report, follow the procedure
prescribed in s. 207-A. Under s. 207-A the Magistrate, after persuing the police report forwarded under s. 173, has to fix a date for
hearing and require the production of the accused on that date.
He has also the power to compel the attendance of such witnesses
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or the production of any document or thing on that date if an application is made in that behalf by the officer conducting the prosecution. On the date of hearing, the Magistrate, after satisfying himself that copies of the documents referred to in s. 173 have been furnished, has to proceed to take the evidence of such persons, if any,
as are produced as witnesses to the actual commission of the offence.
\,
After the examination of those witnesses and aftertheircross-examiC
nation by the accused the Magistrate may, if he thinks it necessary
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to do so in the interest of justice, take the evidence of any one or
\
more of the other witnesses for the prosecution. He will then
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examine the accused for the purpose of enabling him to explain the
circumstances appearing in the evidence against him and hear both
the prosecution as well as the accused. If at that stage he is of
1 opinion that no ground for committing the accused for trial exists
D the Magistrate can, after recording his reasons, discharge the accused.
·If,, however, it appears to the Magistrate that such person should be
tried by himself or some other Magistrate he must proceed accordingly. This contingency will arise if the Magistrate forms an opinion
that no case exclusively triable by Court of Session is 'disclosed
E
but a less serious offence which it is within the competence of the
Magistrate to try is disclosed. In that case the Magistrate has to
proceed to try the accused himself or send him for trial before another Magistrate. Section 209(1), Criminal
Procedure Code
states :
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~209. {I) When the evidence referred to in s. 208,
sub-sections (I) and (3) have been taken and he has (if
necessary) examined the accused for the purpose of enabling
him to explain any circumstances appearing in the evidence
against him, such Magistrate, shall, if he finds that there are
not sufficient grounds for committing the accused person
for trial, record his reasons and discharge him, unless it
appears to the Magistrate that such
person should
be tried before himself or some other Magistrate, in which
case he shall proceed accordingly."
lt was submitted on behalf of the appellant that if a person is
accused of a major offence, for example under s. 307, Indian Penal
Code, and the Magistrate frames a charge of minor offence, for
example under s . .326 or s. 338, lndian Penal Code, the order of the
Magistrate is not tantamount to an order of discharge, became the
criminal case is proceeding a,gainst the accused on the same facts
and therefore the Sessions Judge is not competent, under s. 437,
372
SUPRBMB C:OWT JllBPORTS
[1967] 2 S.C.R.
Criminal Procedure Code, to direct the commitment of the accused
A
to the Court of Session in respect of the major offence. We are
unable to accept this argument as correct. It is true that in the
present case there is no express order of the Magistrate discharging
the
appellant of the charge under
s. 307,
Indian
Penal
Code, but in his order dated March 19, 1960 the Magistrate
has given reasons for holding that no case is made out under
B
s. 307, Indian Penal Code in order to justify an order of
commitment. It is manifest that the order of the Magistrate
is tantamount to an implied order of discharge and the Additional
Sessions Judge had therefore jurisdiction, under s. 437, Criminal Procedure Code, to set aside the order of the Magistrate and
to order that the accused should be committed to trial in the Court of
Session on the major charge unders. 307, Indian Penal Code. There
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is nothing in the language of s. 437, Criminal Procedure Code from
which it could be said that the power of the Sessions Court
under that section can be exercised only when the Magistrate
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has made an express order of discharge. It is apparent from the
language of s. 209(1) Criminal Procedure Code that an express
order of discharge is only contemplated in a case where the MagisI
trate comes to the conclusion that the allegations against the accus-,.
ed do not amount to an offence at all and therefore no question arises
of trying him either by himself or by any other Court. But the
section docs not contemplate that an express order of discharge
should be made in a case where upon the same facts it is possible to
say that though no offence exclusively triable by a Court of
E
Session is made out, an offence triable by a Magistrate is
nevertheless made out and the Magistrate thereafter proceeds with
the trial of that offence. There is also another consideration to be
taken into account. Take, for instance, a case where on a certain
state of facts the accused is alleged by the prosecution to have committed a very grave offence, say under s. 302, Indian Penal Code
exclusively triable by the Court of Session, but the Magistrate thinks
F
that the offence falls under s. 304-A which he can try and after trying
the accused either convicts or acquits him. In either case the result
would be that the appropriate Court will be prevented from trying
the accused for the graver offence which those very facts disclose.
It is to obviate such a consequence and to prevent inferior Courts
from exercising a jurisdiction which they do not possess that the proG
visions of s. 437, Criminal Procedure Code have been enacted.
To say that these provisions can be availed of only where an express
order of discharge is made by a Magistrate would be to render
those provisions
ineffective and
inapplicable to the very
class of cases for which they were intended. As we have already
pointed out, the language used ins. 437, Criminal Procedure Code
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is wide and there is nothing in that section from which it could be
gathered that the power can be exercised only when the Magistrate
has made an express order of discharge. We accordingly reject the
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RAMEKBAL v. MADAN MOHAN (Ramaswami, !.)
313
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argument of Mr. Nurrudin Ahmed on behalf of the appellant and
hold that the Additional Sessions Judge had jurisdiction to set aside
the order of the Magistrate dated March 19, 1960 and to direct the
commitment of the appellant to Sessions Court on a charge under s.
307, Indian Penal Code.
B
The view that we have expressed is borne out by the decision of
the Full Bench of the Madras High Court in Krishna Reddi v.
S11bbamma('). In that case, certain persons were charged before a First
Class Magistrate under s. 379, Indian Penal Code with the theft
of a promissory note. The prosecution applied for a further charge
to be framed under s. 477, Indian Penal Code, but this the Magistrate declined to do, as in his opinion, there was no direct evidence
C
that the accused had destroyed or secreted the note. After hearing
the evidence for the defence the Magistrate acquitted the accused
under s. 258, Criminal Procedure Code. An application was then
made to the Sessions Court to call for the records and direct the
committal of the accused for trial for an offence under s. 477, Indian
Penal Code. The Sessions Court ordered that a further enquiry
D
be made and that the accused be committed for trial. It was
' contended before the High Court that the order of the Sessions
Court was illegal on the ground that the accused had been acquitted
and not discharged. It was held by the Full Bench that the order
of the Magistrate was, in substance, an order discharging the accused
in respect of an alleged offence under s. 477, Indian Penal Code,
E
and that the Sessions Judge had jurisdiction to make the order
sought to be revised. In the course of its judgment the Full Bench
observed at page 146 of the Report as follows:
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"If section 209 of the Criminal Procedure Code is to be
construed as meaning that there can be no 'discharge'
under that section in respect of an offence exclusively
triable by a Court of Session in cases where it appears
to the Magistrate that the accused should be tried before
himself or some other Magistrate in respect of offences
not so exclusively triable, there
would be a deadlock,
since there is no provision in the Code, other than that
contained in section 209, for dealing with a case where
the Magistrate is of opinion that there is no evidence of an
alleged offence which is triable exclusively by a Court of
Session, but considers that the accused should be tried
before himself, or some other Magistrate in respect of
alleged offences
which are not so exclusively triable.
From the
terms of the Magistrate's
order it is clear
that he adjudicated upon the question whether there was
any evidence against the accused in respect of the major
offence. The Magistrate
came to the conclusion that
(1) I.L.R. 24 Madras 136.
374
SUPIU!ME COURT UPORTS
[!967] 2 S.C.R.
ihcrc was not, and he declined to charge him with the
A
major offence. It seems to us that this is a 'discharge•
within the meaning of section 209.
Chapter XVIII refates to enquiries into cases triable
by the· Court of Session or High Court. The primary
object of section 209 is to make provision for the procedure
in such cases. If in the opinion of the Magistrate, there
is no evidence to warrant a charge for an offence exclusively
triable by a Court of Session, he may 'discharge'
the
accused in respect of the alleged offence and, having
done so, may proceed as regards the minor offence or
offences under Chapter XXI or other appropriate chapter.
In fact, a Magistrate cannot proceed to act under
the latter part of sub-section (1) of section 209 until he
has 'discharged' the accused under the former part of
the sub-section. This is the course which the Magistrate
adopted in the present case."
The same view has been held by the Full Bench of the Madras High
Court in In re Na/la Baligadu antf O!hers(') and it was held that
where under s. 209(1) a Magistrate finds that there arc not sufiicient grounds for committing the accused for trial and directs such
per.ion to be tried before himself or some other Magistrate, the
revisional powers under
s. 437 Criminal Procedure Code
can
be exercised by the Sessions Court. On behalf of the appellant
Mr. Nuruddin Ahmed relied upon the Full Bench decision of the
Allahabad High Court in Nahar Singh v. The State(2) in which it
was held that the power under s. 437, Criminal Procedure Code
is exercisable only in a case where the Magistrate, by an express
order. discharges an accused person in respect of an offence exclusively triable by a Court of Session.
It was observed in that
case that the failure of or refusal by a Magistrate to commit an
accused person for trial by a Court of Session does not amount
to an implied discharge of the accused person so as to attract the
power of the Sessions Judge under s. 437, Criminal Procedure Code
to direct the Magistrate to commil the accused person for trial· by
the Court of Session on the ground that the offence is exclusively
triable by the Court of Session. The view taken in Nahar Singh
v. The State(Z), has been followed by the Calcutta High Court in
Samblzu Charan Manda/ v. The State(3).
For the reasons already expressed, we hold that the view taken
by the Madras High Court in Krishna Rec/div. Subbamma(•) and in
In re Na/la Baligadu and Others(') as to the interpretation and effect
of ss. 209 and 437, Criminal Procedure Code is correct.
(I) A.l.R. 1953 Mad. SOI.
(3) 60 C.W.N. 708.
(2) AJ.R. 1952 All. 231.
(4) l.L.R. 24 Mad. 136.
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itAMEEBAL v. MADAN MOHAN (Ramaswami, /.)
375
We pass 'ln to consider the next coQ.tention raised on behalf
of the appellant, namely, that the order of the Additional Sessions
Judge dated July 13, 1960 is ultra vires since he had no jurisdiction
to set aside the judgment of the Magistrtite acquitting the appellant
of the charges under ss. 326 and 338, Indian Pen:U Code. We
do not think there is any substance in this point. It is true that
the Additional Sessions Judge has no authority to set aside the
acquittal of the appellant under the provisions of s. 437, Criminal
Procedure Code. But the order of the Additional Sessions Judge
blls been affirmed by the High Court in its order under appeal and
uuder s. 439, Criminal Procedure Code the High Court has juris·
diction to interfere with an order of acquittal in revision and to
direct that the accused may be retried on the graver offence. Section
439, Criminal Procedure Code reads as follows :--
"439. (I) In th~ case of any proceeding the record
of which has been called for by itself or which has been
reported for orders,
or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise
any of the powers conferred on a Court of Appeal by sections
· -'\.23, 426, 427 and 428 or on a Court by section 338,
and may enhance the sentence; and when the Judges
composing the Court of Revision are equally divided
in opinion, the case shall be disposed of in the manner
provided by section 429.
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(2) No order under this section shall be made to
the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his
own defence.
(3) .......... ·-· ........................... .
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(4) Nothing in this section
applies to an en~ry
made u:ider section 273, or shall be deemed to authonse
a High Court to convert a finding of acquittal into one of
conviction.
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In our opinion the High Court must be deemed to have itself .set
aside the order of acquittal under this section and we therefore
reject the argument advanced by the appellant on this aspect of
the case.
It was lastly contended for the appellant that there can be no
commitment for the offence under s. 307, Indian Penal Code in
view of the acquittal on the charge under ss. 326 and 338, Indian
Penal Code. Rel,iance was placed on s. 403 (!), Criminal Pro·
ced ure Code which states :
376
SUPREME
COURT
REPORTS
(1967] 2 S.C.R.
··403. ( 1) A person who has been once tried by a Court
A
of competent jurisdiction for an offence and convicted or
acquitted of such offence shall. while such conviction
or acquittal remains in force, not be liahle 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 s. 236,
B
or for which he might have been convicted under section
237."
There is no substance in the argument of the appellant because s .
.t03 (4) provides that a person acquitted or convicted of any offence
constituted by any acts may, notwithstanding such acquittal or
conviction, be subsequently charged with, and tried for, any other
,,ffence constituted by the same acts which he may have committed
if the Court by which he was first tried was not competent to try
the offence with
which he is subsequently charged. In view of
this sub-section it is obvious that there can be a fresh charge and
trial under s. 307, Indian Penal Code in spite of the acquittal
of the appellant on the minor charges. There is hence no reason
why an order for commitment under s. 307, Indian Penal .Code
cannot be made by the Additional Sessions Judge in spite~f the
acquittal of the appellant on the charges under ss. 326 and 338,
Indian Penal Code.
It was also submitted by Mr. Nuruddin Ahmed that apar,
from s. 403(1) of the Criminal Procedure Code the principle of
res judicata applied to a criminal trial also and the effect of a verdict
of acquittal pronounced by the Magistrate on the charges under
ss. 326 and 338, Indian Penal Code was binding and conclusive
in all subsequent proceedings between the parties and the effect
of the finding of the Magistrate was that the prosecution had
failed to establish that Gourishankar Tiwari was injured in the
manner alleged by the prosecution and the prosecution case was
not established. It was argued that the same facts could not
be
proved against the appellant in subsequent proceedings on the
charge under s. 307, Indian P~nal Code. ln support of this proposition Counsel relied upon the decision of this Court in Prilam
Singhv. The State of Punjab(') and also on the following observations
of Lord MacDermottt in Sambasfram v. Public Prosecutor,
Federation of Malaya(2) :
"The effect of a verdict of acquittal pronounced by
a competent court on a lawful charge and after a lawful
trial is not completely stated by saying that the person
acquitted cannot be tried again for the same oF.ence. To
that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties
(I) A.l.R. 1956 S.C. 415.
(2) [1950) A.C. 458, 479.
c.
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RAMEKBAL v. MADAN MOHAN (Ramaswami, J.)
377
to the adjudication. The maxim 'Res judicata pro veritate
accipitur' is no less applicable to criminal than to civil
proceedings. Here, the appellant having been acquitted
at the first trial on the charge of having ammunition in his
possession, the prosecution was bound to accept the
correctness of that verdict and was precluded from taking
any step to challenge it at the second trial. And the
appellant was no less entitled to rely on his acquittal in
so far as it might be relevant in his defence."
In our opinion, the principle does not apply to the present case
because the order of acquittal of the appellant by the Magistrate
must be dc~med to have been validly set aside by the High Court
for the reasons we have already given. We accordingly reject the
argument of the appellant on this point.
'
For these reasons we are satisfied that the order of the High
Cburt dated May 8, 1964 is not defective in law.
But in the
circ-:Imstances of this <,:ase we think that it is not expedient that the
appellant should be tried after this lapse of time before a Sessions
Court for an offence committed as long back as September 30,
1958. We accordingly set aside the order of the Additional Ses,
sions Judge, Arrah dated December 20, 1960 ordering the commitment of the appellant and also the judgment of the Patna High
Court dated May 8, 1964 which affirms the order of the Additional
Sessions Judge. The appeal is accordingly allowed.
V.P.S.
Appeal allowed