LexMOHAMMAD SAFI versus THE STATE OF WEST BENGAL
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A B c D E F G H 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}---Proceed- ings 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 with- out. jurisdiction. Though the case was in fact allotted to the Special Judge by a Government notification, he held that he had no jurisdic- tion 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 sutse- quent 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 compe- tent 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 cogni- zance 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 i
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