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Criminal Revision No. 520 of 1949, decided on 28th September 1949, under section 438 Criminal Procedure Code, by Sessions Judge, Shahpur at Sargodha, on 31st May 1949.

, S. 403‑Accused challaned under Ss. 3 2, 364 Indian Penal Code‑‑But in the final police report under S. 173, Criminal Procedure Code investigating officer recommending "discharge" of accused‑Accused accordingly discharged" by Magistrate‑Subsequently complaint filed against accused under Ss. 302, 109 Indian Penal Code and warrants issued --- Proceedings in complaint, held, not barred by S. 403 Criminal Procedure Code‑Criminal Procedure Code, S. 245‑Punjab Public Safety Act (11 of 1947), S. 35.

A police investigation resulted in a challan under sections 302 and 364 Indian Penal Code against accused. In the final report, however, which the investigating officer sent to the Sub‑Divisional Magistrate, he recommended that the accused be "discharged", and accordingly the Magistrate discharged the accused.

Subsequently a complaint was filed against the same accused on the same facts under sections 302, 109 Indian Penal Code, and the Magistrate issued warrants of arrest under sections 364, 201, Indian Penal Code.

Held‑‑Before section 403 of the Code comes into operation, the accused must have either been acquitted or convicted. Section 245 (1) Criminal Procedure Code reads : "If the Magistrate upon taking the evidence referred to in section 244 and such further evidence, if any, as he may, of his own motion, cause to be produced, and if he thinks fit, examining the accused; finds the accused not guilty, he shall record an order of acquittal."

It is clear that an order of acquittal cannot be recorded unless the Magistrate has taken evidence, and since no evidence was recorded, the Magistrate's order could not be regarded as an order under section 245.

For these reasons section 403 of the Code of Criminal Procedure is not applicable.

Proceedings in complaint therefore, were not barred by section 403, Criminal Procedure Code.

Held further, that the trial was not by a Court of competent jurisdic tion. Under section 35 of the Public Safety Act (11 of 1.947), when it appears to the Magistrate that the case is exclusively triable by a Court of Session, he shall send it for trial to that Court. He cannot therefore, try it himself, and any order of conviction or acquittal recorded by him would be without jurisdiction.

A I R 1934 Patna 411 referred to

, Ss. 173, 169‑‑Final Police Report to Magistrate under section 173 recommending "dis charge" of accused‑Order "discharging" accused is an "adminis trative" and not a "Judicial" order.

The order which the Magistrate passes under section 173 is essentially an administrative order and not a judicial order, and it does not amount either to a discharge or an acquittal of the accused.

A I R 1933 Pat. 242 and A I R 1938 Lah. 469 followed.

Iftikhar‑ul‑Haq Khan for Petitioner.

A. R. Niazi and Muhammad Sharif A. A. G. for Respondent No. 1.

The Sub‑Divisional Magistrate, Khushab, issued warrants of arrest under sections 364/201 Indian Penal Code against Sardara, Fateh Khan, Zaman, and Mst. Sahib Khatun, caste Angra. of village, Luku, Police Station Mitha Tiwana (accused), who apply for revision of the order.

The facts of the case are as following :--

On 26th October 1948 Muhammad Niwaz, son of Muzaffar and Shah Wali, son of Ali, caste Khokhar‑Angra of village Luku, police station Mitha Tiwana, Tahsil Khushab, District Shahpur, made an application, under section 302 Indian Penal Code, to the Deputy Com missioner, Sargodha, on the allegations that in about July, 1948, they took their cattle to Hayatpur, leaving their brother Falak Sher, son of Muzaffar in village Luku. On return home, in October, 1948, they came to know that Falak Sher was missing since July, 1948. On being asked, Mst. Sahib Khatun accused said that her husband Falak Sher had left the village about 3J months ago to purchase a cow and lend not returned; that they went out in search of Falak Sher, and, in their absence, Mst. Sahib Khatun; in collusion with Fateh Khan, with whom she had got illicit connection, his brother Zaman, son of Ghazi, and her own brother Sardara son of Bakhtawar accused removed 12 bags of wheat and gram, boxes containing clothes, worth about Rs. 500, and Rs. 700, cash from Falak Sher's house and handed over the said property to the said Fateh Khan and others. The application was forwarded to the Superintendent of Police. After some investigation, Fateh Khan, Zaman, sons of Ghazi, Sardara, son of Bakhtawar, and Mst. Sahib Khatun were challaned under section 302/364 Indian Penal Code. On 25th February 1949 the Sub‑Divisional Magistrate, Khushab, "discharged" the accused at the instance of the prosecution.

On the same day, 25th February 1949, Muhammad Sher, minor son of Falak Sher, through his uncle Muhammad Niwaz, son of Muza5ur, filed a complaint under section 302/109 Indian Penal Code against the said 4 accused on the same allegations. On 14th March 1949 the Sub -Divisional Magistrate, Khushab, issued warrants of arrest, tinder sections 364/201 Indian Penal Code against all the accused. The accused apply for revision of this order.

The proceedings are forwarded for revision on the following grounds:‑

Under Punjab Government, Home Department Notification No. 1516 H‑G‑47/20329, dated 20th March, 1947, the Governor of the Punjab, in exercise of the powers conferred by clause (b) of section 2 of the Punjab Public Safety Act, 1947, declared the District of Shahpur to be a dangerously disturbed area. Section 35 Public Safety Act, 1947, therefore, applies to the case.

Section 35 Public Safety Act II of 1947, as amended by Act, IX of 1947, provides that in all cases the procedure prescribed for the trial of summons cases by Chapter XX of Criminal Procedure Code shall be adopted.

Section 245 Criminal Procedure Code lays down that if the Magistrate finds the accused not guilty he shall record an order of acquittal.

Section 403 Criminal Procedure Code provides that a person, who has once been tried by a Court of competent jurisdiction for an offence and acquitted of such offence shall, while such acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made.

In the present case, the accused were challaned under sections 302/364 Indian Penal Code on the allegations mentioned in the application by Muhammad Niwaz and Shah Wali, but they are acquitted of the charges at the instance of the prosecution. They are, therefore, not liable to be tried again for the same offence, 302/109 Indian Penal Code, as mentioned in the complaint by Muhammad Sher minor through his uncle Muhammad Niwaz son of Muzaffar, nor on the same facts for any other offence under sections 364/201 Indian Penal Code.

The file is, therefore, submitted to the Hon'ble High Court with the recommendation that the order of the Sub‑Divisional Magistrate, Khushab, dated the 14th March 1949, issuing warrants of arrest against the accused under sections 364/201 Indian Penal Code may be set aside and the proceedings against them may be quashed.

--- This is a reference by the learned Sessions Judge of Shahpur, recommending that the order of the Sub‑Divisional Magistrate of Khushab dated the 14th March 1949, issuing warrants of arrest against Sardara accused and others for offences under sections 364 and 201 Indian Penal Code be set aside and the proceedings against them quashed, on the ground that similar proceedings, which had been started against them earlier, have resulted in their acquittal.

The facts of the case are that on the 26th October 1948 an applica tion was made by Muhammad Niwaz and Shah Wali to the Deputy Commissioner of Sargodha that in July 1948 they had left their village Luku with their cattle for Hayatpur, leaving behind the former's brother Falak Sher with his wife Mst. Sahib Khatun, but that upon returning to their village in October, they had been informed by Mst. Sahib Khatun that Falak Sher had gone to purchase a cow about three and a half months before and had not return since. The applicants had thereupon started looking for, Falak Sher, and in their absence Mst. Sahib Khatun had, in collusion in her lover Fateh Khan and the latter's brother Zaman, removed Falak Sher's property in cash and kind. The Deputy Commis sioner forwarded the application to the Superintendent of Police, who directed an investigation resulting in a challan under sections 302 and 364 Indian Penal Code against Fateh Khan, Zaman, Sardara and Mst. Sahib Khatun. In the final report, however, which the investigating officer sent to the Sub‑Divisional Magistrate, he recommended that the accused be "discharged", and accordingly the Magistrate discharged the accused on l the 25th of February 1949.

On the same day, however, Muhammad Sher, a minor son of Falak Sher, through his uncle Muhammad Niwaz, filed a complaint under sec tions 302/109 Indian Penal Code against the same four persons who had been discharged, and on the 14th of March following, the Sub‑Divisional Magistrate issued warrants of arrest under sections 364 and 201 Indian Penal Code against all the four accused. Against this order the accused took a revision petition to the learned Sessions judge who, as already observed, has recommended that the order of the Magistrate be set aside.

The reasons upon which the recommendation is based are that under section 35 of the Punjab Public Safety Act the procedure to be followed in the present cases should be that prescribed for the trial of summons case, and since under section 245 of the Code of Criminal Procedure an order of acquittal has to be recorded in the event of the accused being not found guilty, the order of the Sub‑Divisional Magistrate "discharging" the accused upon police report should be deemed to amount to an acquittal. Next, under section 403 of the Code of Criminal Procedure, a person who has once been tried by a Court of competent jurisdiction for an offence and acquitted of such offence shall, while such acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made, and as the accused are being tried now on the same facts, the trial is illegal.

It seems clear that the acceptance of this recommendation will entail the commission of several illegalities. To begin with, section 403, subsec tion (1), becomes applicable only subject to the following pre‑requisites among others

(i) the accused should have been tried ;

(ii) the trial should have been by a Court of competent jurisdic tion ; and

(iii) the result of the trial should have been either . a conviction or an acquittal.

In the first place, assuming that there was a trial, the trial was not by a Court of competent jurisdiction. Under section 35 of the Public Safety Act, when it appears to the Magistrate that the case is exclusively triable by a Court of Session, he shall send it for trial to that Court. He cannot, therefore, try it himself, and any order of conviction or acquittal recorded by him would be without jurisdiction. See also in this connection Mohindra Nath Sahu v. Emperor (A I R 1934 Patna 411), in which it was held that if the Magistrate has no jurisdiction, section 403 of the Code of Criminal Procedure will not be a bar to another trial.

In the second place, the order of the Magistrate "discharging" the accused was apparently one under section 173 of the Code of Criminal Procedure. Under that section the investigating officer forwards to the Magistrate empowered to take cognizance of an offence a report in a prescribed form and in such report if he has found that there is no sufficient evidence against the accused and has, therefore, released the accused on their executing a bond under section 169 of the Code to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, he recommends to the Magistrate that no further action be taken. If he uses the word "discharge" or "acquit" he will not have used the word correctly, nor will the Magistrate, whatever expression he uses to signify his intention that he does not propose to take any further action, be understood to discharge or acquit the accused person or persons. The order which the Magistrate passes under section 173 is essentially an administrative order and not a judicial order, and it does not amount either to a discharge or an acquittal of the accused. See in this connection Brahm Dev v. Emperor (A I R 1938 Lahore 469), which is based on A I R 1933 Patna 242.

In the third place, before section 403 of the Code comes into opera tion, the accused must have either been acquitted or convicted. The learned Sessions judge has observed that section 245 lays down that if the Magistrate finds the accused not guilty, he shall record an order of acquit tal. If, however, he had considered the language of the section a little more carefully, he would not have come to this conclusion. Section 245 (17 reads as follows:‑

"If the Magistrate upon taking the evidence referred to in section 244 and such further evidence; if any, as he may, of his own motion, cause to be produced, and if he thinks fit, examining the accused, finds the accused not guilty, he shall record an order of acquittal."

It is clear that an order of acquittal cannot be recorded unless the Magis trate has taken evidence, and since no evidence was recorded, the Magis trate's order could not be regarded as an order under section 245.

For these reasons I hold that section 403 of the Code of Criminal Procedure is not applicable. The recommendation of the learned Sessions Judge is, therefore, not accepted.

A.H. Recommendation not accepted.

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