JUDGMENT
Jain, J.
1. The facts giving rise to this petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as “ the Code “), succinctly are that respondent-company instituted a complaint against the petitioner under section 630(1) of the Companies Act on December 7, 1982, on the allegation that it (the respondent-company) was a tenant in respect of a part of the ground floor of house No. 8A, Paschimi Marg, C-Block, Vasant Vihar, under lease deed dated April 26, 1979. The petitioner was then in the employment of the respondent- company as an executive. The said premises were, therefore, given to him for residence on the specific condition that he would vacate the same and surrender possession thereof to the respondent-company on the termination of his employment. Certain items of furniture and an air conditioner were also supplied to the petitioner by the respondent. The petitioner resigned from the service of the respondent, vide his letter dated October 8, 1982, which was accepted. However, the petitioner did not surrender peaceful and vacant possession of the premises to the respondent-company. He did not even return the articles of furniture and air-conditioner, etc., as stipulated.
2. The petitioner was summoned by an Additional Chief Metropolitan Magistrate to fact trial for the aforesaid offence. Notice under section 251 of the Code was duly served on him on April 12, 1983. The case was then adjourned to August 12, 1983, for evidence of the respondent-complainant. In the meanwhile, however, an application was on behalf of the respondent on August 5, 1983, for permission to withdraw the complaint. It was contended that due to inadvertence/oversight, the court had not examined the complainant under section 200 of the Code which was mandatory in the case of a private complaint before issuing process against the accused, i. e., the petitioner. So it sought permission to withdraw the complaint in order to remove the said defect with liberty to file a fresh complaint. Indeed, it had filed the fresh complaint along with the said application.
3. The learned Additional Chief Metropolitan Magistrate allowed the said application on that very day with the following observations:
” In view of the submissions made in the application, the complainant is allowed to withdraw, with permission to file a fresh complaint. The complaint is dismissed as withdrawn. ”
4. The learned Magistrate entertained the fresh complaint on the same day and after examining the complainant, Shri S. P. Aery, through whom the complaint had been instituted by the respondent, he directed issue of the process against the petitioner, vide order dated August8, 1983. The petitioner appeared in court in obedience to the summons issued by the court but made an application under section 300 of the Code contending that in view of the mandatory language of section 257 of the Code, the withdrawal of the previous complaint was tantamount to his acquittal and as such a fresh complaint on the same acts/cause of action was barred by the provisions of section 300. He also pointed out that withdrawal could be permitted by the learned Magistrate for sufficient reasons but no reason whatsoever existed which could have justified permission by the court to withdraw the complaint. Still worse, no notice of the said application was ever given to the petitioner which was imperative, especially when the court made a further order that the respondent-complainant could file a fresh complaint which was not only prejudicial to the petitioner but also beyond the jurisdiction of the learned Magistrate.
5. The learned Additional Chief Metropolitan Magistrate,after hearing the parties, dismissed the application of the petitioner under section 300 of the Code, vide detailed order dated January 6, 1984. Feeling aggrieved, the petitioner filed a revision petition against the said order in the Court of Sessions. However, he met with no success and the same was dismissed by an Additional Sessions Judge, vide impugned order dated January 24, 1985.
6. Learned counsel for the petitioner assailed the impugned order primarily on the ground that both the courts below slipped into a grave error in holding that the order dated August 5, 1983, did not purport to be one under section 257 of the Code. The precise contention raised by learned counsel for the petitioner is that the case was already at the trial stage and as such the Magistrate could only act under the provisions embodied in Chapter XX of the Code which prescribes the procedure for the trial of summons cases by the Magistrates. So, according to him, once the learned Magistrate found that there was sufficient ground for grant of permission to withdraw the complaint, he was let with no option but to acquit the accused. At any rate, it has been urged vigorously by him that the Magistrate had no jurisdiction to permit the complainant to file a fresh complaint on the same subject-matter/with regard to the same cause of action, for there is neither any provision in the Code (like those of Order XXIII of the Code of Civil Procedure) empowering a Magistrate to grant permission to file a fresh complaint nor does any such power in herein a criminal court. Still worse, the learned Magistrate did not even care to issue notice of the application made by the complainant for withdrawal before disposing of the same. Thus, he did not afford any opportunity to the petitioner to be heard on the point and such a procedure too is abhorrent to criminal jurisprudence and the concept of rule of law to which we are wedded.
7. Section 257 lays down the circumstances under which a complaint may be withdrawn with the consent of the court in a summons case. It requires that (1) the complainant makes a request to the court for withdrawal of the complaint at any time before a final order is passed in the case, and (2) he satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused. The Magistrate may, if so satisfied, permit him to withdraw the same. The said section further enjoins that on the permission being granted by the Magistrate to the withdrawal of the complaint, he shall acquit the accused against whom the complaint is so withdrawn. On a bare reading of this section, therefore, it is manifest that a complainant has no legal or vested right to withdraw a complaint as and when he wishes. Withdrawal of the complaint under this section is permissible only if the Magistrate is satisfied that there are sufficient grounds for permitting such withdrawal. This clearly implies that the Magistrate must apply his judicial mind to the reasons which impel the complainant to withdraw the complaint before granting permission. As stated above, the reason assigned by the respondent-complainant in his application dated August 5, 1983, was that the proceedings were vitiated by the flaw of not-examination of the complainant by the Magistrate as required under section 200 of the Code before issuing the process and he wanted to withdraw the complaint in order to remove the said defect. This ground obviously prevailed with the learned Magistrate when he allowed the withdrawal. He has characterised the order dated December 7, 1982, vide which the petitioner was summoned by the Magistrate without examining the complainant under section 200 of the Code as totally invalid. Adverting to some reported decisions including a decision of this court in Dr. Major B. S. Vahra v. Risal Singh [1973] RLR 364, he has observed that non-examination of the complainant under section 200 of the Code is an illegality which goes to the root and vitiates the trial. So, he has reiterated that the ground disclosed in the application for withdrawal was sufficient for permitting the complainant to withdraw the complaint.
8. Section 200 provides that a Magistrate, taking cognizance of an offence on complaint, shall examine up oath the complainant and the witnesses, present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Manifestly, the section is mandatory and the requirement as to the examination of the complainant and his witnesses, if any, present in court, should be strictly complied with. It is for this simple reason that the Magistrate must verify facts alleged inn the complaint before he proceeds further in the matter either under section 202 or 203 or 204 of the Code. He has to judicially determine whether a case is made out for issuing process. However, the question would arise whether noncompliance with the said provision would vitiate the subsequent proceedings/trial of the accused or whether it would be merely an irregularity curable under section 465 of the Code. Sections 460 to 464 deal with particular kinds of irregularities and their effect on proceedings. Section 465, however, is residuary. It provides that subject to those provisions, no omission, error or irregularity in any proceeding will entail a reversal or alteration in appeal to revision of any finding, sentence or order, unless such error, omission or irregularity has, in fact, occasioned a failure of justice. Obviously, this section is based on the principle that mere technicalities in respect of matters which are not of vital or important significance in a criminal trial should not be allowed to trust rate the ends of justice. Non- compliance with the provisions of section 200 will only be a procedural lapse which can hardly be exaggerated into jurisdictional infirmity. Surely, where a complaint is dismissed by a Magistrate without examining the complainant or his witnesses as required by section 200, the complainant may have a legitimate grievance that he was not afforded an opportunity to substantiate his allegations at least ex facie. Likewise, if an accused is summoned without examining the complainant, he may challenge the summoning order on the ground that there was no verification of the complaint, unless, of course, the complainant happens to be a public servant and as such no prima facie case for summoning was made out. Of course, he must question the legality of the order even at the threshold. However, once the trial commences and culminates in the conviction or acquittal of the accused, it is not understandable how he can claim to have been prejudiced by non-examination of the complainant before issuing of process. Likewise, it is not intelligible how the complainant can be prejudiced by such an omission. Of course, I do not rule out exceptional cases in which either the complainant or the accused may, having regard to the peculiar facts of a case, raise the plea of prejudice. In In re T. Subramania Achari, , a learned single judge examined the point in issue threadbare. He adverted to a long catena of authorities both for and against the view taken above. Eventually he arrived at the following conclusion (at page 135) :
” The net result of this analysis is that what has to be considered in each case is whether the illegality or irregularity complained of affected the competency of the court or whether it had occasioned or must be taken to have occasioned a failure of justice. To quote Dr. Nandlal (the Code of Criminal Procedure, Volume II, Kishen Lal & Co., Lahore (1936) ) the test is : Does the error go to the whole root of trial ? Does it in effect vitiate the proceedings ? Has the court assumed an authority which it did not possess ? Has it broken the vital rules of procedure ? If the error is of such a nature, then the proceedings are vitiated in their very inception and section 537 has no application ; but the mere fact that a certain provision of the Code is imperative does not itself indicate that a breach of the provision vitiates the whole proceedings : Bechu Chaube v. Emperor, AIR 1923 All 8. ”
9. I am in respectful agreement with the view expressed by the learned judge. Reference in this context may also be made with advantage to Bharat Kishore Lal Singh Deo v. Judhistir Modak, AIR 1929 Patna 437 [FB], Mehr Chiragh Din v. Emoperor, AIR 1924 Lal 258 Ambayara Goundan Pachamuthu Goundan, AIR 1924 Mad 587 (1), and V. M. Abdul Rahman v. King-Emperor, AIR PC 44. The latter authority is important for the proposition that non-compliance even with a mandatory provision of law would not by itself constitute an illegality vitiating the trial and conviction of the accused.
10. Looking at the matter from this angle, there was no sufficient ground for granting permission to withdraw the complaint. However, the fact remains that the learned Magistrate took the view that the trial was vitiated by a serious irregularity which went to the root of the matter and was not curable. Naturally finding himself in such a situation, he could hardly think of acquitting the accused. Obviously, he felt powerless to do so because an order of acquittal can be made only by a competent court and in a lawful trial. Thus, by taking the foregoing view, the learned Magistrate inhibited himself from passing an order of acquittal as required by the provisions of section 257. In other words, his mind was all the time operating in a different groove, namely, that the case was not on falling under section 257 of the Code and the only course open to him was to let the complainant withdraw the complaint and file a fresh complaint so that the provisions of section 200 were duly complied with. Apparently, he was very much obsessed with this thought that he did not even think it necessary to issue notice of the application to the accused. No doubt, a Magistrate can always grant permission to the complainant to with draw the complaint, but in that event he must pass an order of acquittal as laid down in section 257. (See Cricket Association of Bengal v. State of West Bengal, ). So, even if no notice of the request made for withdrawal is given to the accused, the latter cannot complain of having been prejudiced because he is benefited by an order of acquittal. However, that cannot be said of a case where a complaint is permitted not only to withdraw the complaint in the absence of the accused but is also granted permission to file a fresh complaint. Such an order will be evidently prejudicial to the accused as he has to face a fresh trial for no fault of his. Further, such an order will naturally enable the complainant to remove any defect or flaw which may exist in the original complaint or the allegations contained there in.
11. The crucial point, however, is that for the applicability of the rule of autrefois acquit embodied in section 300 of the Code, three essential condition have to be satisfied, viz., (1) there must have been a trial of the accused for the offence charged against him, (2) the trial must have been by a court of competent jurisdiction, and (3) there must have seen a judgment or order of acquittal. It is only when these three conditions are satisfied that a subsequent trial of the accused can be successfully resisted by him on the principle of autrefois acquit. Indisputably, the petitioner has not been tried for the offence alleged to have been committed by him. However, the bar contained in section 300 of the Code is sought to be invoked on the ground of deemed acquittal” in view of the mandatory language of section 257. It may be pertinent to notice in this context that the Explanation to section 300 expressly provides that dismissal of complaint or discharge of an accused is not an acquittal for the purposes of that section. It is for this simple reason that dismissal of complaint is not at par with the finding of acquittal in a regular trial. In certain circumstances, therefore, a fresh petition or complaint for the same offence is entertainable . For instance, in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, , it was held that (headnote):
“An order of dismissal under section 203 of the Criminal Procedure Code is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint……”
12. adverting to this decision, it was observed by the Supreme Court in Bindeshwari Prasad Singh v. Kali Sing, , which too was a case of dismissal of complaint under section 203 of the Code, that a second complaint can lie only on new facts or even on previous facts only if a special case is made out. However, these authorities are of no help to the respondent inasmuch as the instant case is not a case of dismissal of the complaint at the pre-trial stage and the permission was granted when the trial of the petitioner had in fact commenced. So, the only point is issue is whether the petitioner would be deemed to have been acquitted in view of the mandatory language even though no such order was passed in terms by the learned Magistrate.
13. In Dhanapti Devi v. Corporation of Calcutta, , the petitioner was prosecuted for erecting an unauthorised structure which constitutes an offence under section 493 of the calcutta Municipal Act. It was held that a proceeding under section 363 of the said Act could not be treated as a criminal proceeding in regard to such an offence and section 248 of the old Code (corresponding to section 257 of the new Code) could have no application. Consequently, section 403 of the old Code which too spoke of conviction or acquittal of an offence had also no application to proceedings under section 363 did not amount to “acquittal” and fresh proceedings were not barred. The learned judges further observed that (at page 470):
“….even assuming section 248 applied, the petitioner could not claim any immunity form the second proceeding in the present cas, inasmuch as no order of acquittal was actual passed on the previous occasion, It is clear from the terms in which section 248 is expressed that the withdrawal of the complaint does not by itself operate as an acquittal but an order of acquittal by the Magistrate is further necessary. It is true that the section directs that the Magistrate shall acquit the accused but if the Magistrate does not actually do so, one of the essential facts necessary for attracting the operation of the section is lacking.”
14. In Sushil Kumar Hazra v. Banka Mahato, , on receipt of a complaint, the magistrate directed the police to make an investigation under the provisions of section 156(3) of the old Code. The police held an investigation and submitted a final report. Immediately after the submission of the final report, the complainant submitted a naraji petitioners and the learned Magistrate, without examining the naraji, directed that a judicial enquiry be held into the complaint. Some evidence was taken at the enquiry and eventually the petitioners, who were the persons accused of the offence, were summoned and put on trial. The trying Magistrate discharged them on the ground that there had been a defect in the proceedings in that the examination of the complainant had not been made before issuing the process. Thus, there was infringement of the mandatory provisions of section 2000. Realizing this position, the learned Magistrate held that the proceedings had no foundation in law. So, without referring to the merits of the matter, he made an order of discharge. Thereupon, a fresh complaint was filed before the Sub-Divisional Magistrate on identical facts. Under these circumstances, it was urged that the second trial of the petitioners for the same offence was barred under section 403 of the old Code. This contention was repelled by the learned judge who observed as under (at page 395):
“When the naraji edition was filed, it was clearly the duty of the Magistrate to treat it as a complaint and to proceed straightaway to the examination of the complainant under section 200 of the Code of Criminal Procedure. Instead of doing that, the learned Magistrate was directed a judicial enquiry to be held. At this enquiry, some evidence was taken and a report followed on receipt of which the Magistrate directed the issue of process against the petiioners. Clearly this involve infringement of the mandatory provisions of the law inasmuch as the Magistrate had failed to examine the complainant on oath in accordance with the precisions of section 200 of the Code of Criminal Procedure. This position was realised by the previous Magistrate who dealt with this matter and he accordingly ‘discharged’ the accused from the proceedings obviously on the ground that they had no legal origin. I do not think that the Magistrate acted improperly in making the order of discharge in this case, although technically it could not be an order under section 253 of the Code of Criminal Procedure.”
15. No doubt, the aforesaid observations were made in a warrant case and the order was of discharge under section 253 of the old Code. But ,the ratio of the decision will squarely apply to the instant case also. As seen above, the learned Additional Chief Metropolitan Magistrate could no have acquitted the petitioner after having arrived at the conclusion that the cognizance of the offence leading to the issue of process to the petitioner to face trial was without any legal foundation and as such void ab initio.
16. The ratio of the aforesaid decisions finds ample support in the decision of the Supreme Court in Mohammad Safi v. State of West Bengal, . In that case, the accused was tied on the previous occasion by a special court on the basis of a charge-sheet submitted by the police under section 409, Indian Penal Code. After the conclusion of the trial, the special court acquitted him not on merits buy on the erroneous conclusion that the court had no jurisdiction to take cognizance of the offence on the police challan and, therefore, the whole proceeding was without jurisdiction. Thereafter , a formal complaint was preferred by the public prosecutor as required by law and the special judge took congnizance of the offence and commenced a fresh proceedings against the accused. The plea of autrefois acquit was pressed into service by the accused on the basis of the previous acquittal buy the same was repelled by the High Court. In appeal by certificate, the Supreme Court upheld the view taken by the High Court. The following observations of the Supreme Court are very pertinent to note (at page 71):
“In the case before us, Mr. Ganguly took the view, though erroneously, that as one of the conditions requisite for taking cognizance of the offence was not satisfied, he had no jurisdiction over the matter. Having come to that conclusion he had no option but to put a stop to those proceedings. It appears,however, that he felt that having already framed a charge, the only manner in which he could put an end to the proceedings was by making an order of acquittal. It requires, however, no argument to say that only a court which is competent to initiate proceedings or to carry them on can properly make an order of acquittal, at any rate, an order of acquittal which will have the effect of barring a subsequent trial upon the same facts and for the same offence.”
17. Their lordships further observed (at page 72):
“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 decision of the High Court-that he could not take cognizance of the offence and consequently was incompetent to try the appellant. Where a court comes to sucha conclusion, albeit erroneously, it is difficult to appreciate how that court can absolve the person arraigned before it completely of the offence alleged against him. Where a person has done something which is made punishable by law, he is liable to face a trial and this liability cannot come to an end merely because the court before which he was place for trial forms an opinion that it has no jurisdiction to try him or that it has no jurisdiction to take cognizance of the offence alleged against him. Where, therefore, a court says, thought erroneously, that it was not competent to take cognizance of the offence, it has no power to acquit that person of the offence. An order of acquittal made by it is in fact a nullity.”
18. In this view of the matter,therefore, their Lordships held that the previous acquittal of the petitioner-accused could not operate as an acquittal in the eyes of law so as to bar a subsequent trial. In the words of their Lordships (at page 73):
“It would be only repetition to say that 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 opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by it by whatever name it is characterised cannot,. in law, operate as an acquittal.”
19. These observations, in my view, are very apposite to the facts of the case on hand. Since the learned Additional Chief Metropolitan Magistrate was of the view2, though erroneously, that the entire proceedings were illegal because of non-compliance with the mandatory provisions of section 200, he could not have, in all fairness to him, passed an order of acquittal in terms of section 257 of the Code and this is what he precisely did. So, applying the ratio of the decision adverted to above, which was also been referred to by both the courts below, the order dated August 5, 1983, of the learned Additional chief Metropolitan Magistrate was of the view, though erroneously, that the mandatory provisions of section 257 so as to bar subsequent prosecution of the petitioner on the same facts. It, however, bears reputation that the learned Additional Chief Metropolitan Magistrate was not competent to permit the complainant to file a fresh complaint on the same cause of action. Reference in this context may be made with advantage to G.K. Mazumdar v. Mohmad Kasam Mirza [1967] Crl LJ 60 and Kashi Prasad v. Emperor, AIR 1947 all 370. In the latter case, the Magistrate had returned the complaint to the complainant, viz., Inspecting Assistant Commissioner of Income-tax. It was held by a Division Bench of the Allahabad High Court that (at page 372):
“The order of the Magistrate for the return of the complaint was an order not contemplated by the Criminal Procedure Code. The court has no Jurisdiction to return the complaint. The order was, therefore, and invalid order and, as such, can have no effect.”
20. To sum up, therefore, there can be no shadow of doubt that the order made by the learned Additional Chief Metropolitan Magistrate on August 5, 1983, in the previous complaint was not warranted by law and as such it cannot be said to be an order of acquittal as contemplated in section 257 of the Code. Indeed, the prosecution evidence had yet to start and no objection whatsoever seems to have been taken by the accused, i.e., the petitioner, to the legality of the trial. Hence, it cannot be deemed to be an acquittal by legal fiction so as to operate as a bar to a subsequent prosecution.
21. There is another way of looking at the matter, namely, that if, for reasons already stated, the previous order dated August 5, 1983, were held to be bad in law and non est, the previous complaint will have to be restored and decided afresh culminating in acquittal/conviction of the petitioner. Needless to say, the High Court, in exercise of its revisionol/inherent power, can examine the legality and propriety of even that order and make an appropriate order. So, looking at the matter from this angle too, the petitioner has to go through the trial. He cannot approbate and reprobate at the same time.
22. This revision petition is, accordingly, dismissed as being devoid of any merit and the parties are directed to appear before the learned trial court on April 14, 1986, for further proceedings.
23. Petition dismissed.
