RAMEKBAL TIWARY versus MADAN MOHAN TIWARY & ANR.

Citation: [1967] 2 S.C.R. 368 · Decided: 17-01-1967 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 Court-
Magistrate 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 confirm-
ed 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, ·on-
firmed 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 conclu-
sion 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] 
A 
B 
c 
0 
E -
F 
G 
H 
-
A 
B 
c 
D 
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 Cri-
minal 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 off

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