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TMI Blog1965 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and acquitted thereof. He could, therefore, not have been tried over again in respect of that offence and consequently his conviction and sentence are illegal. 3. What actually happened was this. The appellant who was a shed clerk at Sainthia Railway Station is alleged to have committed criminal breach of trust with respect to 8 bags of suji which had been booked by rail at Murarai by one Bhikam Chand Pipria, the consignee being the firm of Lalchand Phusraj of Sainthia. He was alleged to have done this in conspiracy with Ibrahim and Nepal Chandra Das. We are not concerned with these two persons and so we can leave them out of account. The offence was investigated into and a charge sheet was submitted against the appellant under s. 409, I.P.C. and two other persons by the Officer-in-charge, Government Railway Police, Asansol. Apparently he filed the charge sheet himself in the court of Judge, Birbhum Special Court. However, as set out in the order of Mr. Ganguly acquitting the appellant the case was distributed to the Birbhum Special Court for trial by notification No. 4515-J dated May 8, 1959 (Law Judicial Department), Government of West Bengal. The prosecution examined 21 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant it is necessary to set out the provision of sub-s. (1) of s. 403 of the Code. They are as follows; "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or 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 under section 236 or for which he might have been convicted under section 237." 6. These provisions are based upon the general principle of autrefois acquit recognised by the English courts. The principle on which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle has now been incorporated in Art. 20 of the Constitution. The defence of autrefois acquit, however, has no application where the accused person was not liable lawfully to be convicted at the first trial because the court lacked jurisdiction. This is what has been pointed out by the Court of Criminal Appeal in Thomas Ewart Flower v. R. 40 Cr. App. R. 189. From the language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquit the appellant. He further says that since Mr. Ganguly had not only framed a charge against the appellant but also examined all the witnesses both for the prosecution and for the defence and recorded the examination of the appellant he had completed the trial. In the second place, he says, that where a charge has been framed against an accused person in a warrant case the proceedings before the court can end either in acquittal or in conviction and in no other way. He points out that under s. 494 of the Code the Public Prosecutor may with the consent of the court withdraw before a certain stage is reached, the prosecution of any person and that the only order which the court is competent to make is to acquit the accused if the withdrawal is made after a charge has been framed. 7. It is true that Mr. Ganguly could properly take cognizance of the offence and, therefore, the proceedings before him were in fact not vitiated by reason of lack of jurisdiction. But we cannot close our eyes to the fact that Mr. Ganguly was himself of the opinion - and indeed he had no option in the matter because he was bound by the decisions of the High Court - that he could not take cognizance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troller-General under a Notification of the Government of India, and the said Notification does not state that the various officers therein mentioned are not below the rank of a District Magistrate. Thus it is the incompetence of the prosecution to proceed against the accused without sanction as provided for in law. As, however, the invalidity of the sanction invalidates the prosecution in court, the accused was acquitted." 10. The Government filed an appeal against the order of acquittal. The High Court allowed it and set aside the orders of the Magistrate acquitting the appellant and directed that the case should be tried by another Magistrate having jurisdiction to try it and dealt with according to law. Against the decision of the High Court the appellant took an appeal to the Privy Council. The Privy Council accepted the view of the Federal Court in Basdeo Agarwalla v. King Emperor [1945] F.C.R. 93, that the prosecution launched without valid sanction is invalid and held that under the common law a plea of autrefois acquit or convict can only be raised where the first trial was before a court competent to pass a valid order of acquittal or conviction. Unless the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X
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