# STATE OF KARNATAKA v. K. H. ANNEGOWDA & ANR

- **Citation:** [1977] 2 S.C.R. 350
- **Court:** Supreme Court of India
- **Decided:** 1976-12-08
- **Bench:** P. N. Bhagwati, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-karnataka-v-k-h-annegowda-anr-7043
- **Pages:** 7

## Headnote

Code of Criminal Procedure 1893-S. 494-Scope of Prosecution withdraw11
before. S~ssions Court-If amounts "discharge" or "acquittal" of accused-Code
of Criminal Procedure 1973-S. 300-lf a bar for fresh prosecution for the
same offence.
. Section 494 of the Code of Criminal Procedure 1893 provides that ariy Public Prosecutor may, with the consent of the Court, in cases tried by jury before
th.e return of the verdict and in other cases before the judgment is pronounced,
withdraw from the prosecution of any person either generally or in respect of any
ono or more of the offences for which he is tried and upop such withdrawal-
( a) if it is made before a charge has been framed the accused shall be
discharged; and
(b) if it is made after the charge has been framed or when under the
Code no charge is required, he shall be acquitted.
In the instant case, the committing Magistrate framed a charge against the
respondents for having committed an offence under s. 302 read with s. 34 I.P.C.
and committed them for trial by a Sessions Court. The Sessions Judge granted
permission sought by the . Public Prosecutor to withdraw from the prosecution
under s. 494 of the Code and "discharged" the respondents.
After fresh investigation a new charge sheet was filed.
Sy then the Code
of Criminal Procedure 1973 had come into force. Following the provisions of
the new Code, the committing Magistrate committed the respondents to. stand
trial before the Sessions Court for the same offence.
When the case came up
for trial, the respondents contended that by virtue of the earlier orders of the
Sessions Court, they had been acquitted and that they were not liable to be
prosecuted again for the offence in view of s. 300 of the new Code. This was
rejected on the ground that they had earlier been "discharged" and not acquitted
and that s. 300 had no application to their case. The High Court allowed their
revision application holding that since the withdrawal from the prosecution in
the earlier case was made after t1ie charge had been framed, the respondent' had
been acquitted and the bar of s. 300 was attracted.
Dismissing the appeal,
HELD : The High Court was right in holding that by reason of the order
of the Sessions Judge granting consent to the withdrawal from the prosecution in
the earlier case, the respondents were acquitted and in view of s. 300 they were
not liable to be tried again for the same offence. [356B]
(1) Section 484 of the new Code provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with
in accordance with the provisions of the old Code as if the new Code were not
in force.
r3 52Hl
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In the instant c.ase, when the new Code came into force the case was pending
before the Court of Session for trial and so was liable to be tried according to
the old Code. It was for this reason that the withdrawal application was mnde
under s. 494 of the old Code. f353A-BJ
·
(2) (a) When the prosecution against an accused committed
for trial
is
allowed to be withdrawn by the Court of Session under s. 494 of the old Code,
KARNATAKA v. K. H. ANNEGOWDA (Bhagwati, J.)
351
the withdrawal of the prosecution would be after the framing of tho
charge
against the accused and it must result in the acq11ittal of the accused under cl. (b)
-0f that section. [355G]
(b) The charge against an accus~d under the procedure p~escribe? in the n~w
Code is to be framed for ·the first time by the Court of SeSSion whlle accordmg
to the procedure prescribed under the old Code, the charge is framed by the
committiRg Magistrate and the Court of Session is merely given the power to
alter or amend the . charge, if it thinks necessary to do so.
Therefore, when
under the old Code, the Court of Session commences the trial of an accused,
there is already before it a charge framed by the committing Magistrate and it
is that charge that is required to be read out and explained to the accused, and
-0n which the plea of the accused is req

## Text

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350
STATE OF KARNATAKA
v.
K. H. ANNEGOWDA & ANR.
December 8, 1976
[P. N. BHAGWATI AND A. C. GUPTA, JJ.J
Code of Criminal Procedure 1893-S. 494-Scope of Prosecution withdraw11
before. S~ssions Court-If amounts "discharge" or "acquittal" of accused-Code
of Criminal Procedure 1973-S. 300-lf a bar for fresh prosecution for the
same offence.
. Section 494 of the Code of Criminal Procedure 1893 provides that ariy Public Prosecutor may, with the consent of the Court, in cases tried by jury before
th.e return of the verdict and in other cases before the judgment is pronounced,
withdraw from the prosecution of any person either generally or in respect of any
ono or more of the offences for which he is tried and upop such withdrawal-
( a) if it is made before a charge has been framed the accused shall be
discharged; and
(b) if it is made after the charge has been framed or when under the
Code no charge is required, he shall be acquitted.
In the instant case, the committing Magistrate framed a charge against the
respondents for having committed an offence under s. 302 read with s. 34 I.P.C.
and committed them for trial by a Sessions Court. The Sessions Judge granted
permission sought by the . Public Prosecutor to withdraw from the prosecution
under s. 494 of the Code and "discharged" the respondents.
After fresh investigation a new charge sheet was filed.
Sy then the Code
of Criminal Procedure 1973 had come into force. Following the provisions of
the new Code, the committing Magistrate committed the respondents to. stand
trial before the Sessions Court for the same offence.
When the case came up
for trial, the respondents contended that by virtue of the earlier orders of the
Sessions Court, they had been acquitted and that they were not liable to be
prosecuted again for the offence in view of s. 300 of the new Code. This was
rejected on the ground that they had earlier been "discharged" and not acquitted
and that s. 300 had no application to their case. The High Court allowed their
revision application holding that since the withdrawal from the prosecution in
the earlier case was made after t1ie charge had been framed, the respondent' had
been acquitted and the bar of s. 300 was attracted.
Dismissing the appeal,
HELD : The High Court was right in holding that by reason of the order
of the Sessions Judge granting consent to the withdrawal from the prosecution in
the earlier case, the respondents were acquitted and in view of s. 300 they were
not liable to be tried again for the same offence. [356B]
(1) Section 484 of the new Code provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with
in accordance with the provisions of the old Code as if the new Code were not
in force.
r3 52Hl
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In the instant c.ase, when the new Code came into force the case was pending
before the Court of Session for trial and so was liable to be tried according to
the old Code. It was for this reason that the withdrawal application was mnde
under s. 494 of the old Code. f353A-BJ
·
(2) (a) When the prosecution against an accused committed
for trial
is
allowed to be withdrawn by the Court of Session under s. 494 of the old Code,
KARNATAKA v. K. H. ANNEGOWDA (Bhagwati, J.)
351
the withdrawal of the prosecution would be after the framing of tho
charge
against the accused and it must result in the acq11ittal of the accused under cl. (b)
-0f that section. [355G]
(b) The charge against an accus~d under the procedure p~escribe? in the n~w
Code is to be framed for ·the first time by the Court of SeSSion whlle accordmg
to the procedure prescribed under the old Code, the charge is framed by the
committiRg Magistrate and the Court of Session is merely given the power to
alter or amend the . charge, if it thinks necessary to do so.
Therefore, when
under the old Code, the Court of Session commences the trial of an accused,
there is already before it a charge framed by the committing Magistrate and it
is that charge that is required to be read out and explained to the accused, and
-0n which the plea of the accused is required to be taken. [3 ~5D-F]
.
(c) In the instant case, the Judicial Magistrate followed this procedure aml
after framing the charge eommitted the respondents for trial. [354G]
Queen Empress v. Sivaran1a, 12 Mad. 35 and In re. Ve/ay11dha M11dali, A.LR.
1949 Mad 508, approved.
CRIMINAL APPLLATE JURISDICTION : Criminal Appeal
No. 361
-Of 1975.
(Appeal by Special Leave from the Judgment and Order dated
the 19th Sept., 1975 of the Karnataka High Court in Criminal Petition
No. 52 of 1975.)
D. Mookerjee and B. R. G. K. Achar, for the appellant.
H. B. Datar and R. B. Datar, for respondents.
The Judgment of the Court was deLvered by
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BHAGWATI, J.,
This appeal by special leaVle raises a short
but
interesting question of law relating to the interpretation of certain provisions of the Code of Criminal Procedure, 1898 (hereinafter referred
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to as the "Old Code").
The facts giving rise to the appeal are few
and may be briefly stated as follows.
·
· One Bodegowda was murdered and in regard to this incident
a
case was registered at the Police Station on 13th October,
1973 as
Crime No. 62 of 1973.
The police investigated the case and after the
investigation was complete, a charge-sheet was filed against the responF
<lents in the Cou~t of Judicial Magistrate, 1st Class Chickmagalur and
the case was registered as C.C. No. 2319 of
1973.
The learned
Magistrate held an inquiry in accordance with the provisions of Chapter
XVIII of the old Code and being of the opinion that the respondents
should be committed for trial, the learned Magistrate framed. a charge
:against the respondents for having committed an offence under section
302 read with section34 of the Indian Penal
Code.
The learned
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Magistrate then read and explained the charge to the respondents and
after giving an opportunity to the respondents to give in a list the names
of witnesses whom they wished to be summoned to give evidence, the
learned Magistrate made an order committing the respondents
for
trial by the Court of Sessions, Chickmagalur.
This order of committal was made on 15th March 1974 and in pursuance of it, the records
of the case were forW'arded to the Court of Sessions, Chickmagalur
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where they reached on 23rd March, 197 4 and the case was registered
as S.C. No. 5 of 1974.
The Sessions Judge fixed the trial of the case
on 15th July, 197 4 but before that date, the Public Prosecutor filed an
352
SUPREME COURT REPORTS
[ 1977) 2 /!.C.R.
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application on 29th June, 1974 praying for permission to withdraw
from the prosecution under section 494 of the old Code.
The learned
Sessions Judge by an order passed on the same day accorded permissioa
to the Publi9 Prosecutor to withdraw from the prosecution and 'discharged' the respondents in respect of the offence charged against them.
The State thereafter ordered fresh investigation into the offence and ia
consequence of such investigation, a new charge sheet was filed a&ain~t
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the respondents and three other accused in the Court of Judicial Magistrale, 1st Class, Chickmagalur.
Since this chargesheet was filed after
1st April, 1974 when the Code of Criminal Procedure, 1973 (hereinafter referred to as "New Code") had come into force, the
learned
Magistrate, following the provisions of the New Code, committed the
respondents and the other three accused to stand their trial before the
Court of the Sessions Judge, Chickmagalur for the same offence. When
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the case came up for hearing before the Sessions Judge, the respondents
made an application contending that by virtue of the order dated 29th
June, 1974 made by the Sessions Judge under section 494 of the Old
Code, the respondents had been acquitted and they were, therefore, not
liable to be prosecuted again for the same offence in view of section 300'
of the New Code.
The Sessions Judge rejected the application, taking
the view that the respondents were discharged and not acquitted under
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the Order dated 29th June, 1974 and, therefore, section 300 of the
New Code was not applicable and there was no bar against their fresh
prosecution for the same offence.
The respondents challenged this
Order by preferring a revision application to the High Court.
This
revision application was allowed and the High Court held that though
tho Order passed by the Sessions Judge directed that the respondents
be 'dii!Charge<l', the legal effect ot this order was to bring about the
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acquittal of the respondents since the withdrawal from tho prosecution
was made after the charge had been framed and the respondents having been acquitted under that Order, the bar of section 300 of the New
Code Tra~ attracted and the respondents were not liable to be prosecuted
again for the same offence.
This order made by the High Court is
challenged in the present appeal preferred by the State with
~pceiaI
leave obtained from this Court.
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It may be pointed out that before the High Court it was contended
on behalf of the State that the earlier case before the Session~ Judge,
viz., Sessions Oase No. 5 of 1974, was governed by the provisioss of
the new Code and, therefore, in view of section 228 of the new Code,
it was the obligation of the Sessions Judge to frame a charge before
proceeding with the trial and since the withdrawal from the prOliecution
was effected before the framing of such charge by the Sessions Judge,
the order passed by the Sessions Judge amounted to an order d. di~
charge and not of acquittal.
This contention was, however, no1 pr~sccf
at the hearing of the appeal before us and it was conceded, and in our
opinion rightly, that the earlier case before the Sessions Judge was
governed by the provisions of the old Code and the new Cods h.ad n.-
application to it.
Section 484 of the new Code clearly provide3 that
where a trial is pending immediately before the commencement of the
new Code, it shall be proceeded with in accordance with the provisions
of the old Code as if the new Code were not in force.
Here in ihe
present case the Judicial Magistrate had already made an
order of_
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KARNATAKA v. K. H. ANNEGOWDA (Bhagwati, ].)
353
eommittal on 15th March, 1974 and pursuant to that order, the records
of the case had reached the Court of the Sessions Judge on 23rd March,
1974.
The case was, therefore, already before the Court of Sessions
prior to 1st April, 1974 and it was pending before that court for trial
en 1st April, 1974 when the new Code c~me into force.
It is _immaterial as to when the case was actually registered and a number given to
it
Since the case was pending for trial before the Sessions
Court
iln 1st April, 1974, it was liable to be tried in accordance with
the
provisions of the old Code and it was for this reason that the applic~
tion for withdrawal from the prosecution was also made by the Publ!c
Prosecutor under section 494 of the old Code and not under
the
eorresponding provision of the new Code.
Section 494 of the old
Code provides that any Public Prosecutor may, with the co~sent of t~e
Court, in cases tried by jury before the return of the verdict and m
other cases, before the judgment is pronounced, withdraw from the
prosecution of any person either generally or in respect of any one or
more of the offences for which he is tried and the section then goes
on to add that :
"upon such withdrawal,-
( a) if it is made before a charge has been framed,
the accused shall be discharged (in respect of
such offence or offences) ;
(b) if it is made after a charge has been framed or
when under this Code no charge is required he
shall be acquitted in respect of such _offence or
offences) . "
The withdrawal from the prosecution in the present case having
been made 1Jnder this section, it is clear that if it was made before
a
charge was framed, the respondents would be discharged but if it was
made a charge had been framed, the consequence would be that the
responden~ would be acquitted. It, therefore, becomes material to
inquire whether at the date when the withdrawal from the prosecutio:i
was made, a charge had been framed against the respondents or not.
Whether the order of the Sessions Judge granting consent to the withdrawal from the prosecution amounted to an order of discharge or
acquittal would depend upon the answer to this question.
It may l::e
pointed out that it is of no consequence that the Sessions Judge directed
the respondents to be 'discharged' because if the legal effect of the
order was to acquit the respondents, then the incorrect use of
the
expression 'discharged' by the Sessions Judge would not alter the legal
position and convert the order of acquittal into one of dischari:e.
Now, in order to determine whether the.withdrawal from the pro:ecution was made before the framing of the charge or after, it is necessary to notice the scheme of the relevant provisions of the old Code.
Sessi0ns Case No. 5 of 1974 in which the witfidrawal was made was
committed to the Sessions Court by the Judicial Magistra·e under the
provisions of Chapter XVIII of the old Code. The proceed:ng before
the Judicial Magistrate was instituted on a police report and the learned
Magistrate, therefore, followed the procedure specified in secfon 207 A.
This section lays down a special procedure to be adopted in ~roceed
ings instituted on police report with a view to expeditious disposal of
criminal cases.
Sub-section ( 1) provides that the Magistrate, on
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receipt of the report forwarded under section 173, shall fix a date for
the purpose of holding an enquiry and sub-section (2) empowers the
Magistrate to issue process for compelling the attendance or any witness
or the production of any document.
The Magistrate is required by
sub-section (3) to satisfy himself at the commencement of the enquiry
that the documents referred in section 173 have been furnished to the
accused.
Sub-section ( 4) then requires the Magistrate to proceed to
take the evidence of such persons as may be produced by the prosecution as witnesses fo the actual commission of the offence and also
empowers the Magistrate to take the evidence of any other witness for
the prosecution if he thinks it necessary to do so in the interest
of
justice.
The accused
is given liberty
under sub-section
(5) to
cross-examine the witnesses examined under sub-section ( 4) and subsection (6) provides that the Magistrate shall, if necessary, examine the
accused for the purpose of enabling him to explain any circumstance
appearing in the evidence against him and there-after give to the prosecution and the accused an opportunity of being heard. If the Magistrate,
at the end of this procedure, feels that there is no ground for committing
the accused for trial, be is bound to discharge the accused under subsection ( 6).
But where "upon such evidence being taken,
such
documents being considered, such examination (if any) being made
and the prosecution and the accused being given an opportumty
of
rcing heard," the Magistrate forms an opinion that the accused should
re committed for trial, sub-section (7) provides that the Magistrate
shall frame a charge under his hand declaring with what offence· the
accused is charged.
Sub-section (8) then requires the Magistrate to
rc;"l and explain the charge to the accused and to give a copy thereof
to him free of cost.
Sub-section (9) provides that the accused shall
lh~n be required to give in at once, orally or in writing, a list of the
persons, if any, whom he wishes to be summoned to give evidence at
the trial and when the accused on being required to give the !'st under
··ub-secti.on (9) declines to do so, or gives such list, the Magistrate is
empowered under sub-section ( 10) to make an order committing the
;1 ::::used for trial by the Court of Session.
It will thus be seen that,
according to this procedure, the Magistrate is required to frame a charge
and to read and explain it to the aceused before making an order of
committal and the accused is in fact committed to stand his trial before
the Court of Session on the charge so framed.
This was the procedure
followed by the Judicial Magistrate in the present case and in accordance with it, the Judicial Magistrate framed. a charge against the respondents and committed them for trial to the Court of Session on this
charge.
The procedure to be followed by the Sessions Court when an accused is committed to it for trial is laid down in Chapter XXII of the
old Code.
Section 271 provides that when the court is ready to commence trial. the accused shall appear or be brought before it and the
charge shall be read out and explained to him and he shall be asked
whether he is guilty of the offence charged or claims to be tried.
That
is the first step to be taken by the Sessions Court in relation to the
case committed to it for trial.
Now, obviously, the charge that is required to be read out and expl~i~ed to th~ accused is the char~e that
has been framed by the Co1111mttrng Magistrate under sub-section (7)
KARNATAKA v. K. H. ANNEGOWDA (Bhagwati, !.)
355
of section 207 A.
There is no provision in Chapter XXIII which requires the Sessions Court to frame a charge before proceeding with the
trial of the accused.
That is plainly unnecessary because a charge is
already framed by the Magistrate when he commits the accused for
trial to the Sessions Court and that is the charge on which the Sessions
Court is to try the accused.
Of course, the Sessions Court is given
an overriding power under section 226 that when it finds that an accused i~ committed for trial without a charge or the charge is imperfect or
erroneous, it may frame a charge or add to or otherwise alter
the
charge, as the case may be, havling regard to the rules contained in the
old Code as to the framing of charges.
But this is only an enabling
power to frame a charge where, for some reason or the other, no charge
has been framed by the committing Magistrate or to correct a charge
where the charge is imperfect or erroneous.
It does not say that in
every case the Court of Session shall frame a new charge before proceeding with the trial.
On the contrary, it clearly postulates that ordinarily there would be a charge framed by the committing Magistrate and
it is an that charge that the accused would be tried, unless the Court of
Session finds it necessary to alter or amend the charge.
It is interestillg to compare the procedure under the new Code where there is no
provision for framing a charge by the committing magistrate and it is
only when the Court of Session to which tlie case is committed finds,
after considering the record of the case and the documents submitted
therewith and after heating the submissions of the accused and
the
prosecution, that there is ground for presuming that the accused has
committed an offence which is exclusively triable by the Court of Session,
that it is required by section 220 of the new Code to frame a charge
against the accused.
The charge against the accused under the procedure prescribed in the new Code is to be framed for the first time by
the Court of Session while according to the procedure prescribed under
the old Code, the charge is framed by the committing Magistrate and
the Court of Session is merely given the power to alter or amend the
charge, if it thinks necessary to do so.
It is, therefore, clear that
when the Court of Session commences the trial of an accused, there is
already before it a charge framed by the committing Magistrate and it
is that charge, unless altered or amended under section 226, that
is
required to be read out and explained to the accused apd on which the
plea of the accused is required to be taken.
It must follow inevitably
as a necessary corollary from this proposition that when the prosecution against an accused who has been committed for trial is allowed to
be withdrawn by the Court of Session under section 494, the withdrawal
of the prosecution would be after the framing of the charge against the
accused and it must result in the acquittal of the accused mi.der clause
(b) of that section.
We find that this view which we are taking has prevailed with the
Madras High Court si_gce the last about eight or nine decades.
The
Madras High Court held as far back as 1888 in Queen-Empress v.
Sivarama (1) that where an accused is comrnitted to stand his trial before a court of session on a charge and the prosecution is withdrawn by
(I) 12 Mad. 35.
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the public prosecutor with the consent of the court of session under
section 494, the accused is entitled to be acquitted and not merely di~
charged.
The same view was reiterated by the Madras High Court i•
In re Velayudha Mudali(').
We are in agreement with the view
taken in these two decisions of the Madras High Court.
We accordingly affirm the decision of the High Court holding th!l.t
by reason of the Order dated 29th June, 1974 passed by the Sessioas
Judge granting consent to the withdrawal from the prosecution in the
earlier case, the respondents were acquitted and in view of section 300
of the new Code, they were not liable to be tried again for the same
offence and dismiss the appeal
P.B.R.
Appeal dismissed.
(I) A.I .R 1949 Mad. 50&.