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MADRAS HIGH COURT
RAMASWAMI
In re T.Subramania Achari
Versus
.
Criminal Revn. Case No.729 of 1954
Decided On : 12 October, 1954
CRIMINAL PROCEDURE CODE - SECTION 476-B - LIMITATION - APPEAL UNDER SECTION 476-B IS AN APPEAL UNDER THE CRIMINAL PROCEDURE CODE AND NOT UNDER THE CIVIL PROCEDURE CODE - DELAY IN FILING THE APPEAL CAN BE EXCUSED UNDER SECTION 5 OF THE LIMITATION ACT - SECTION 403, CRIMINAL PROCEDURE CODE - DOUBLE JEOPARDY - NOT APPLICABLE WHERE THE EARLIER TRIAL WAS BEFORE A COURT NOT COMPETENT TO PASS A VALID ORDER OF ACQUITTAL OR CONVICTION - ARTICLE 20(2) OF THE CONSTITUTION OF INDIA - NOT APPLICABLE WHERE AN ACCUSED HAS BEEN DISCHARGED ON ACCOUNT OF A TRIAL WHICH WAS A NULLITY.
Fact of the Case:
The petitioner, Subramania Asari, filed a complaint before the Sub-Magistrate, Dharmapuri, alleging that his widowed daughter-in-law had become pregnant and had brought about a miscarriage and secretly buried the foetus. The Sub-Magistrate, without recording the sworn statement of the complainant and without recording his reasons for postponing the issue of process, forwarded the complaint to the Sub-Inspector of Police for investigation. The police after investigation reported that the complaint was false. The Sub-Magistrate passed administrative orders holding the complaint to be false and agreeing with the Police. Then, he considered it expedient in the interests of justice that a complaint against the petitioner should be filed for an offence under S.211, I.P.C., and did so. The Sub-Divisional Magistrate, Dharmapuri, enquired into the matter and found the petitioner guilty of an offence under S.211, I.P.C., and sentenced him to R.I. for six months. On appeal, the learned Sessions Judge, Salem, set aside the conviction and sentence and discharged the accused on the ground that the entire proceedings were illegal and void. Thereafter, the petitioner appeared before the S.S.M. Dharmapuri and was examined on oath and the complaint given by him was taken on file under Ss. 312 and 316, I.P.C. The District Magistrate, Salem, transferred the case to the court of the Judicial Sub-Magistrate, Harur, for disposal according to law. The learned Sub-Magistrate discharged the accused and expressed that it was expedient in the interests of justice that steps should be taken to prosecute the petitioner for an offence under S.211, I.P.C. The petitioner preferred an appeal against the order of the Sub Magistrate, Harur, that a complaint should be lodged against him for an offence under S.211, I.P.C. This appeal was filed two months after the order was made by the Sub Magistrate, Harur, and within 30 days of the complaint being actually filed in the court of the Sub-Divisional Magistrate, Dharmapuri. The learned District Magistrate refused to excuse the delay and dismissed the application to excuse the delay and the appeal as being barred by time. The petitioner filed two petitions, one for setting aside the order of the District Magistrate (Judicial) Salem in C.A. No.71 of 1954 dismissing an appeal sought to be preferred in his court on the ground of limitation; and the other for quashing the proceedings in C.C. 149 of 1954 on the file of the Sub-divisional Magistrate, Dharmapuri.
Finding of the Court:
The court held that the appeal to the District Magistrate (Judicial), Salem, was within time. Even assuming that there was any delay, this was a fit case for excusing it under S.5, Limitation Act. The order of the learned District Magistrate, Salem, was set aside and he was directed to take the appeal on file and dispose of it according to law. On the question of double jeopardy under S.403, Cr. P.C., the court held that the earlier complaint before the Sub-Divisional Magistrate, Dharmapuri, was not a competent one of which the said Sub-Divisional Magistrate could have taken cognisance of and maintained a prosecution and convicted the accused. Therefore, the accused was never in jeopardy. The court also held that Art.20 (2) of the Constitution of India does not apply where an accused has been discharged on account of a trial which was a nullity.
Issues: 1. Whether the appeal to the District Magistrate (Judicial), Salem, was within time? 2. Whether the earlier complaint before the Sub-Divisional Magistrate, Dharmapuri, was a competent one of which the said Sub-Divisional Magistrate could have taken cognisance of and maintained a prosecution and convicted the accused? 3. Whether Art.20 (2) of the Constitution of India applies where an accused has been discharged on account of a trial which was a nullity?
Ratio Decidendi: 1. An appeal under S.476-B, Criminal P.C., is an appeal under the Criminal Procedure Code and not an appeal under the Civil P.C. Delay in filing the appeal can be excused under S.5 of the Limitation Act. 2. To bar a fresh trial under S.403, Cr. P.C., the court by which the accused was first tried should have been a Court competent to pass a valid order of acquittal or conviction and unless the earlier trial was a lawful one which might have resulted in a conviction, the accused could never have been in jeopardy. 3. Art.20 (2) of the Constitution of India does not apply where an accused has been discharged on account of a trial which was a nullity.
Final Decision: The complaint made by the learned Sub-Magistrate, Harur, is irreproachable and Cr. M.P.1126 of 1954 is dismissed.
ORDER : - These are two connected matters for (a) setting aside the order made by the learned District Magistrate (Judicial) Salem in C.A. No.71 of 1954 dismissing an appeal sought to be preferred in his court on the ground of limitation; and (b) for quashing the proceedings in C.C. 149 of 1954 on the file of the Sub-divisional Magistrate, Dharmapuri.
2. The facts are : The petitioner herein Subramania Asari, Kammala Street, Dharmapuri, presented a typed complaint before the Sub-Magistrate, Dharmapuri, to the effect that his widowed daughter-in-law Sukirtham alias Manonmani Ammal who was living away from her husband for three years prior to his death on 27-1-1952 had become pregnant and had brought about a miscarriage and secretly buried the foetus ten days prior to the filing of the complaint. The father of this girl was accused of having abetted the commission of these offences. The Sub-Magistrate of Dharmapuri without recording the sworn statement of this complainant and without recording his reasons for postponing the issue of process and causing an investigation to be made by the Police forwarded it to the Sub-Inspector of Police, Dharmapuri, for investigation. The police after investigation reported that the complaint was false. The Sub-Magistrate passed administrative orders as prescribed by the Criminal Rules of Practice on the final report holding the complaint to be false agreeing with the Police. Then as stated by him in his order after perusing the record of investigation by the Police he came to the conclusion that the complainant had falsely accused his daughter-in-law Sukirtham and his Sambhandi of serious offences having no just or lawful ground for doing so. Therefore he considered it expedient in the interests of justice that a complaint against this Subramania Asari should be filed for an offence under S.211, I.P.C., and did so.
The Sub-Divisional Magistrate, Dharmapuri, to whom this complaint had been made enquired into the matter in C.C. No.44 of 1953. Six witnesses were examined on the side of the prosecution and eight witnesses were examined on the side of the defence. The learned Sub-Divisional Magistrate came to the conclusion that by reason of the ill-will between this Subramania Asari and his widowed daughter-in-law and her father and between whom a Civil litigation had also arisen for partition of the deceased Dakshina-moorths properties, This false complaint had been lodged and that Subramania Asari had no just or lawful ground for instituting such proceedings or charge. Therefore he found the petitioner herein Subramania Asari guilty of an offence under S.211, I.P.C., and sentenced him to R.I. for six months taking into consideration the following aggravating circumstances :
"In my opinion the accused deserves a very deterrent sentence. He is a literate person and occupies a decent status in life. He is an experienced and aged man. Therefore there are no mitigating circumstances at all in this case. Offences under S.211, I.P.C., are increasing to an alarming extent and the tendency to abuse the process of law and to use the same for private vendetta should be put down."
3. There was an appeal therefore in C.A. 239 of 1953 and the learned Sessions Judge, Salem, set aside the conviction and sentence and discharged the accused on the ground that inasmuch as the Sub-Magistrate had not recorded the sworn statement of Subramania Asari and had postponed the issue of process without recording reasons and forwarded the complaint to the Sub-Inspector and then as a result of the report made by the Sub-Inspector launched this prosecution the entire proceedings were illegal and void. In conclusion the learned Sessions Judge also remarked :
"The learned Sub-Magistrate of Dharmapuri if he considers that the interests of justice require a prosecution of the complainant, must examine the complainant on oath and dispose of the complaint filed by the complainant as per law and then consider this question if it
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