P L D 1972 Azad J & K 58 (PLP)

The word `trial' or `tried' has not been defined anywhere in the present Code. In Azad Kashmir warrant trial procedure was abolished by Criminal Law Amendment Act of 1959 with the result that all cases are being tried as summons cases. The question therefore that would provide an answer to the point before me is as to when does a trial begin in a summons case? The learned counsel for the complainant placed reliance upon two rulings of this Court, namely, P L D 1960 Azad J & K 24 and P L D 1961 Azad J & K

12. The latter one relies upon the former and both have been decided by the same learned Judge. The rulings no doubt support his contention in that they have laid down that `trial' in summons cases begins with the examina tion of the accused under section 242, Cr. P. C. and in cases where complaints are dismissed before this section comes into play, the accused cannot be termed to have been "tried" within the meaning of section 403(1) and hence a second trial on the same facts was not barred. In the present case also the accused had not been examined under section

242. The learned Judge has not cited any authority in support of this definition but a perusal of the authorities shows that the only ruling to my knowledge on all fours with the said definition is A I R 1918 Mad. 212, a D. B. case decided by Ayling and Napier, JJ. They held that in summons cases trial begins after particulars of the offence are put to the accused. Dissenting with 34 Mad. 253 they held that the word `tried' in section 403 was not a surplusage. In A I R 1943 Nag. 36, Niyogi, J. laid down:‑ "The trial begins in a case exclusively triable by Court of Session, only after the charge is framed by the committing Magistrate: 32 Mad. 218, and in a warrant case when the accused in called upon to plead to a charge : 9 N L R

42. In a summons case the trial may be said to begin when the accused is brought before the Magistrate." The learned Judge, it will be seen, has been careful not to give a definite opinion but has on other hands been cautious enough to use the word `may'. In any case even the learned Judge seems to lay down that the trial in a summons case begins with the appearance of the accused in the said Court. On the other hand there is an overwhelming number of authorities which have laid down that the trial in summons case begins when the Magistrate takes cognizance of the case. Some of these rulings are A I R 1918 Mad. 231, A I R 192 ) Cal. 189, A I R 1935 Cal. 491 and A I R 1943 Mad.

61. The same view was expressed by Rankin, C. J. in A I R 1933 Cal. 354 (35 t). It was on this basis that a second complaint after the dismissal of the previous one under section 24 T was held barred in A I R 1929 Bom. 408 (D. B.), A I R 1935 Cal. 491 (D. B.), A I R 1924 Cal. 96 (D. B), A I R 1924 Pat. 140, A I R 1943 Mad. 6, and A I R 1921 Pat.

311. In all these cases the complaints had been dismissed even before the examination of the accused under section 242, Cr. P. C. and the learned Judges held that a subsequent trial was barred. The three D. B. rulings cited here have discussed more than a dozen authorities and placed reliance upon them. They as well as A I R 1921 Pat. 311 have been treated in the reports as important rulings which shows that the most successful commentators of the Code deemed it necessary to treat them as important. Although the Nagpur view treats the appearance of the accus ed as attracting the application of 403 which by itself is different from the interpretation it has received in the three contrary cases referred to in the beginning it nevertheless agrees with the view of Wallis, C. J. and Abdur Rahim, J. that if an acquittal under 247 were not to operate as a bar against a fresh trial, it (247) would have been provided in the explanation to section

403. Reference may be made to A I R 1927 Nag.

388. In A I R 1923 All. 360 the learned Judge also followed 34 Mad.

253. In A I R 1930 Mad. 1001 it was held that the aggrieved complainant has, a remedy; he can move the higher courts and if he can satisfy them that his absence was beyond his control, the acquittal may be set aside and the complaint revived but so long as the order of acquittal stands, it bars a fresh trial. In 34 Mad. 253, Abdur Rahim, J. held that the withdrawal of a complaint which resulted in an acquittal barred a fresh trial. This view was dissented to, as stated earlier, a few years later in A I R 1918 Mad. 212 but the same year the question again, came up for consideration in another case reported as A I R 1918 Mad.

231. In this case the D. B. constituted Abdur Rahim, J. who had decided the first Madras case and Napier, J. who was one of the Judges who had taken a different view in the subsequent Madras case. Both the Judges took the same view which they had taken earlier and the case was, therefore, referred to Wallis, C. J. who agreed with the interpretation of section 403 as given by Abdur Rahim, J. It would be useful to quote here from the judgment of Abdul Rahim, J. His Lordship said:‑ "In summons cases the `trial' commences as soon as the Magistrate has taken cognizance of the matter and issued pro cess. The mere fact that Ch. 20 is headed `of the trial of summons cases by Magistrates' and section 242 lays down that the first thing that a Magistrate has to do when the accused appears or is brought before him is to ask him to show cause why he should not be convicted, does not indicate that the 'trial' did not commence at an earlier stage within the meaning of the Code. In fact Ch. 17 shows that the proceedings before the Magistrate commence with the issue of process, and that the draftsman did not think of distinguishing between 'commencement of proceedings' and 'commencement of trial', will be apparent from the way both the phrases are used in the marginal notes of section 271 and in the heading. The word 'tried' or 'trial' has not been defined anywhere. If the trial of a summons case commences as soon as the process is issued, is there any good reason for saying that an order of acquittal would not come within the meaning of subsection (1), section 403, unless it was passed at a particular stage? It seems to be conceded that if the accused on being questioned under section 242 denied that he committed the offence and he is acquitted, then subsection (1), section 403, would apply. But such an order may be made without any decision on the merits, on the ground of absence of the complainant (section 247) or withdrawal from prosecution (section 248) or (section 494). It would follow therefore that section 403, subsection (1), does not require that there should have been a finding on evidence that the accused is not guilty, and if it is not correct to say that in summons cases proceedings commence only after the accused has been questioned under section 242, it seems to me that the only possible meaning we can give to the words 'who has once been tried' is 'Against whom proceedings have been commenced in Court, i.e., against whom the Court has taken cognizance of an offence and issued process'. On comparing subsection (1) with the subsections (2) and (4) it is clear that the draftsman intended to assign the same scope to the phrase in question in subsection (1) as to the phrase's person convicted or acquitted' in subsections (2) and (4) so far as this matter is concerned, though it was not a happy idea of his to use different expressions to signify the same thing. I think that if we are not to frustrate the clear intentions of the legislature we must not construe the words 'who has once been tried' in subsection (1) in any sense other than what I have suggested." The learned Chief Justice after examining the State of law on the point in different Criminal Procedure Codes from 1861 to 1898 held: "The history of the legislation shows, to my mind, a distinc tion between what I may call the common law plea of aurrefois acquit as embodied 9n section 403 of the Code, and the statutory acquittals which have been introduced in sections 494, 247 and

345. It has not been suggested in this case that the withdrawal from the prosecution by the Public Prosecutor was irregular, and in these circumstances I agree with the conclusion arrived at by Abdur Rahim, J. that the conviction and sentence are bad !n law and should be set aside." In A I R 1929 Cal. 189 Mukerji, J held that the word 'tried': "Does not necessarily Import a decision of the case on merits but only refers to the nature of the proceedings that were held; or in other words, means that the proceedings in which acquittal was passed, were In the nature of a trial. It will thus be seen that the interpretation of section 403 sub section (1) given by Abdur Rahim, J. in 34 Mad. 253 has been followed not only by the Madras High Court but also by the Calcutta, Patna, Bombay, Nagpur and Allahabad High Courts as shown earlier. The reasons that have been advanced in these rulings and those that can be advanced in support of this view may be briefly stated as below (1) Under the Code of 1872 the Magistrate could only dis., miss the complaint in case the complainant was absent but under the Codes of 1882 and 1898 the dismissal was replaced by acquittal which clearly means that the Legislature intended to make the law on the point more stringent by providing a statutory acquittal. (2) In the Code of 1872 the word 'trial' had been defined as: "The proceedings taken In Court after a charge has been drawn up and Includes the punishment of the offender." In the subsequent Codes, namely of 1882 and 1898 the following changes were introduced:‑ (i) Definition of the word 'trial' was dropped. (ii) The term dismissal was replaced by the term acquittal in section 247. (Section 205 of the Code of 1872.) (iii) An explanation was added to section 403 which did not exist in the corresponding section 460 of the Code of 1872. It reads:‑ "The dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section. The word 'tried' in section 403 was not inserted in 1882 but existed even in the corresponding section 55 of the Code of 1861 which is as follows:-- "A person who has once been tried for an offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence." Now, the bar against a fresh trial draws its source from section

403. If in the opinion of the Legislature the word 'tried' meant only that part of the proceedings which commenced with or after section 242, Cr. P. C. had come into play, then there was no necessity of providing in the explanation that dismissal of a complaint was not to be treated as an acquittal for the purpose of this section. Again, a reference to section 247 would show that it visualises an order of acquittal even on the date when the accused have been for the first time summoned for appearance which again, can be possible even without their presence, to say the least of after they being examined under section 242, Cr. P. C. The Legislature seems to have been at pains to emphasise Its Intention because it has taken the precaution of inserting the words "notwithstanding anything hereinbefore contained" in the same section. The Legislature was obviously conscious of this position while drafting section 403 and the fact that they have taken care not to insert section 247 in the explanation and on the other hand have been cautious enough to except only the dismissal of com: plaints, should leave no room for doubt not only that the acquittals under section 247 were Intended to operate as a bar against fresh prosecution but also that the word 'tried' does not mean anything else except the taking of cognizance by the Magistrate by summoning the accused. According to Jack, J. In A I R 1935 Cal. 491 the definition of the word 'tried' seems to have been omitted in the present Code because it would not fit in with section 403 and instead exceptions were added to it. Two Latin maxim may also be cited In support of this interpretation namely, 'expressio unius est exclusio alterius' meaning whit is not expressly included shall be deemed to have been excluded and 'expressum facit cessare tacitum meaning whit is expressed makes what is silent to cease.

3. Even the definition of the word 'trial' in the Code of 1861 refers to the drawing of a charge which has nothing to do with the summons case trials. In the warrant case trial, the Court can discharge the accused and decline to frame a charge; the accused may not even cross‑examine the witnesses and take things easy because he has another opportunity of cross‑examining them after a charge is framed and it can therefore be said that he was not In "jeopardy upon the first trial" as understood in English com mon law but the same cannot be said about the summons case trials. No charge is drawn up in these cases; there is no midway determination by Court on merits as we have in warrant cases under section 253; the Magistrate may refuse to summon the accused at the preliminary stage but such an order is clearly term ed as a mere dismissal under section 203, and dismissals are prima facie expressly taken out of the ambit of section 403 but at least after the accused are summoned, they are definitely in "jeopardy upon the first trial" because unless the offence is compounded under section 345 where it is compoundable or the prosecution is withdrawn under section 248 or the complainant is absent incidentally in all contingencies voluntary acts on the part of the complainant himself‑the case is bound to be determined on merits, and the accused is in peril of conviction.

4. Subsections (v) and (w) of section 4 (1), Cr. P. C. define a summons case as one relating to an offence punishable with imprisonment of not exceeding six months. They relate to contempt of the lawful authority of public servants, some offences relating to public health, safety and convenience, concealing a deserter in a ship, abetment of acts of insubordination of an officer, soldier etc., wearing of dress of soldiers or badges of public servants, offences relating to elections, criminal breach of con tracts of services, affrays, minor mischiefs, appearing in public in a state of intoxication, mere criminal trespass or membership of an unlawful assembly etc. Such offences in the Law of Crimes number $

2. They are minor offences and in many cases, petty ones. It is only in these cases that the Legislature provided for statutory acquittals. Thus the history of the law on the point (section 247) when con sidered in the light of the fact that the offences affected are petty ones and do not, broadly speaking, affect life, liberty and property which are most prized by man nor public or political order C which the State is eager to maintain, clearly supports the view that the continued use of the word "tried" in section 403, especially in the further light of what has been said earlier, was not intended to frustrate the consequences of an order under section

247. By the Criminal Law Amendment Act of 1959 the warrant trial procedure was abolished in Azad Kashmir and instead all cases were provided to be tried under Chapter 20, namely, as summons cases. It has extended the benefit of section 247 to all offences but that is hardly a ground to interpret it differently. In my view the change of law in 1959 was for public good.

5. It seems to be conceded even in the three rulings taking a different view that if the complaint is dismissed after the examination of the accused under section 242 and without any further progress in the complaint, it would operate as a bar against a fresh prosecution. Obviously examination of the accused makes no difference to the merits of the case because the prosecution evidence only begins after such examination and the merits of the case depend upon the presence or absence of such evidence or the weight that a Court may attach to it. Had the Legislature defined the word 'trial' as that part of the proceedings which begins with or after section 242, Cr. P. C. D is applied then it would of course have been a different matter but in the absence of such a definition, the face that the examination of the accused does not alter the position so far as the merits of the case are concerned, cannot be lost sight of. There thus seems to be no reason why a result that can follow immediately after the examination of the accused tinder section 242 may not precede it, especially because the law presumes an accused to be innocent and in our country he is under no oath while being examined in the Court.

6. The contention that a complainant whose complaint has been dismissed under section 247 can bring a fresh complaint if it has been dismissed before the examination of the accused under section 242 would lead to a situation that could never have been intended by the Legislature because that puts E premium on carelessness and negligence. If such a man was to go in revision to the High Court against such dismissal, he will have to show sufficient cause for his absence on the relevant date and unless he is able to do that to the satisfaction of the revisional Court, he will not be able to gat a re‑opening of the case but if the opposite contention is accepted, it would mean that he can straightaway bring a fresh complaint and without showing any cause whatsoever for his absence on the relevant date, seek, as of right, the initiation of fresh proceedings against the accused. It is difficult to be persuaded to believe that in a situation as this brought about by a party's own default, the Legislature could have intended two such wholly diametrically opposed outlets for the defaulter. It is hard to reconcile to the argument that while in the case of a revision, the High Court would set aside the order only if sufficient cause‑sufficient in the judicial sense, is shown for absence, the Legislature could have alternately licensed the complainant with the power to treat the proceedings already initiated by him with contempt, absent himself at will and then after its dismissal, to initiate fresh proceedings without any legal hindrance whatsoever. It is worse than making him a judge in his own cause because he is not even required to give any excuse, however, unconvincing, of his absence on the relevant date.

7. It has already been shown that the Legislature has quite deliberately inserted the said word in section

247. By defining the word 'tried' in section 403 in a manner provided 9n the Code of 1872 despite the fact that the Legislature chose, in its great wisdom, to drop the said definition and to do so in a manner which results in negativing section 247 and that too at the mere sweet will of the complainant, without the intervention of the higher Courts and while the said acquittal order is still in force, would not only create a strange and irreconcilable situation but would mean that the Legislature intended to give it a meaning altogether opposed to the one that it carries in ordinary legal parlance. As that would offend against the rules p of interpretation of statutes, I have no doubt that a departure from the ordinary parlance could not have been intended.

8. A prosecution can be withdrawn at any time under section 248 of the Cr. P. C. Similarly under section 494 any Public Prosecutor may withdraw from prosecution and when it is done in a summons case, the accused has to be acquitted. Similarly under section 345 offences which are compoundable may be compounded at any stage and it has been expressly provided that in such a case, it would have the effect of an acquittal. Now, there is no doubt that a case can be compounded or the prosecution withdrawn at any stage. Thus a complainant may withdraw the complaint, say, even before the examination of the accused under section 242 or may compromise at the same stage. The effect in both cases would be a statutory acquittal. The fact that the Legislature has taken care to provide in section 494 that when such withdrawal is made in a warrant case before a charge has been framed, the accused shall be discharged and has in all other situations termed it as an acquittal, also shows that the use of the word 'acquittal' in section 247 could not have been intended to convey any different intention. If despite the tact that these acquittals may have preceded the examination of the accused under section 242, they .were Intended to operate as a bar against fresh prosecution despite the presence of the word 'tried' in section 403, sub section (1), I see no reason why a different interpretation should De adopted in the case of section 247 because if section 247 is subject to word 'tried' in section 403, subsection (1), sections 315, 248 and 494 are after all similarly subject to the same section because the bar against a fresh trial in all cases, draw its source from section

403. To interpret them differently offend against the rule of the universality of interpretation. Apart from the revisional powers under section 435 which empowers this Court to satisfy itself "as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court", this Court has also ample powers under section 561‑A of the Code "to prevent abuse of the process of any Court or otherwise, to secure the ends of justice." AIR 1939 Cal. 224 and A I R 1943 Lah. 304 may be cited as cases where the High Court resorted to inherent powers to quash proceedings instituted after acquittals. The dispute is also essentially of a civil nature. Was there any contract between the parties? If so, what were the terms thereof? Was the amount actually advanced and if so, how much? How much work was done by the accused? These are civil matters for the decision of which civil Court alone provides the proper forum. Criminal Courts cannot be allowed to be used for the determination of these disputes just because a complainant chooses to term it as a breach of trust or fraud. It is true that civil Courts take longer time but that provides no excuse. Another reason why people in such cases resort to criminal law is to harass the other party to the contract and intimidate him through the coercive process of Criminal Procedure. This is what the present two complaints clearly betray. Even from that point of view proceedings in both the complaints are liable to be quashed. Reliance may be placed on P L D 1963 Kar. 868, P L D 1962 Pesh. 167, A I R 1933 All. 818, A I R 1925 Lah. 289 (2) and three unreported cases of this Court, namely, Khawaja Faqir Muhammad v. Malik Ghulam Ali, a D. B. case decided on 17‑5‑1965, Abdul Sattar v. Abdur Rahman decided on 17‑4‑1970 and Sardar Yasin Khan, Advocate v. Raja Firoze Khan, decided on 19‑8‑1969. Respectfully dissenting, therefore, from P L D 1960 Azad J & K 24 and P L D 1961 Azad J & K 12 and following the consensus of opinion expressed by several High Courts as detailed above I hold that the fresh trial of the petitioners and their co‑accused after the dismissal of the complaints under section 257 was in violation of section 403, Cr. P. C. Proceedings in both the complaints are, therefore, quashed. Order accordingly.