K.H. Annegowda and anr. Vs. State of Karnataka - Court Judgment

Excerpt:
- constitution of india .article 26-a: [cyriac joseph cj, mrs. manjula chellur & n. kumar, jj] right to establish and maintain educational institution - held, the right to establish and maintain educational institution is also conferred on every religious denomination or any section thereof, irrespective of the fact that they belong to majority or minority community in the nation, under article 26(a) of the constitution. education is per se regarded as an activity that is charitable in nature. education is a recognized head of charity. therefore a right to establish and maintain institution for charitable purposes includes a right to establishment and administration of educational institution. however, it is a right not conferred on individuals but on a religious denomination or a section of such denomination. in other words, it is a collective right to citizens belonging to every religious denomination or section thereof. in so far as the rights conferred on religious denominations under article 26 is concerned, the said right is always subject to public order, morality and health. article 29(1) : right of any section of the citizens residing in india or any part thereof and having a distinct language, script or culture of their own, to conserve the same. held, article 29(1) applies to any section of the citizens. in other words, it applies to majority and minority, that is, to all citizens. all of them have a fundamental right to protect their language, script or culture and conserve the same. article 29(1) do not control the rights conferred under article 30(1) on minorities. article 30(1) is an independent article conferring on all religious and linguistic minorities, a right to establish and administer educational institutions of their choice. it does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their languages only. what the article says and means is, that the religious linguistic minorities should have the right to establish educational institutions of their choice. therefore, the educational institutions of their choice will also necessarily include institutions imparting general secular education. it also includes the right to choose the medium of instructions of their choice other than the mother tongue of the child or the language of the said linguistic minority. the words of their choice which qualify educational institutions shows the vast discretion and option which minorities have in selecting the type of the institution which they want to establish. the said type of institution includes the type of medium of instruction in which they want to impart education. the dominant word is choice and the content of that article is as wide as the choice of the particular community may make it. article 30(1): right of religion and language of minorities, a right to establish and administer educational institution of their choice - held, the right under article 30(1) is not so absolute as to prevent the government from making any regulation whatsoever. though the right flowing under article 30(1) is held to be absolute, the apex court has read into this article the concept of the said right being subject to a regulation protecting national interest. however, the only limitation on the power of the government while framing regulation is, that it cannot destroy the minority character of the institution or make the right to establish and administer, a mere illusion. the regulation so framed must satisfy the dual test. the test of reasonableness and the test that it is regulative of the educational character of the institution. the object of the said regulation should be to achieve excellence of standard of education and check mal-administration. if it is a restriction and negates the right conferred under article 30(1) then the said restriction would be void ab initio and the restriction should yield to the said fundamental right. that is the essence of the right guaranteed under article 30(1) of the constitution on the linguistic and religious minority, thus protecting these minorities from the onslaught of the majority. article 141; [cyriac joseph cj, mrs. manjula chellur & n.kumar, jj] law declared by the supreme court - binding nature of ratio decidendi - what constitutes - held, the ratio of the judgment is what is set out in the judgement itself. the ratio decidendi of the judgment is its reasoning which can be deciphered only upon reading the same in its entirety. by reading a line here and there from the judgment one cannot find out the entire ratio decidendi of the judgment. it is the principle found out, upon a reading of a judgment as a whole, in the light of the questions before the court that forms the ratio and not any particular word or sentence. a decision is an authority on the question that is raised and decided by the court, and it is an authority for what it decide and not what can logically be deduced thereupon. the ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. on facts, held, the full bench struck down the earlier government order as there was compulsion to study kannada and therefore violative of article 19,21 and 30(1) which finding was upheld by the supreme court. for the same reason the supreme court declined to interfere with the subsequent government order dated 19.6.1989 as there was no compulsion to study any particular language from i to iv standard, as is clear from clause-i of the government order. therefore, the ratio decidendi, of the judgment of the apex court as well as the full bench is if there is an element of compulsion in the government policy, which infringes the fundamental rights guaranteed to the citizens of this country under the indian constitution, such policy is void and the fundamental rights have to prevail over such governmental policy. in the absence of such compulsion the courts should not interfere with the policy decision of the government. the question whether a student, a parent or a citizen has a right to choose a medium of instruction at primary stage other than mother tongue or regional language was not the subject matter of the aforesaid proceedings and the said question was not considered either by this court or by the apex court and no decision rendered in the aforesaid proceedings on the said point. therefore the contention that the question involved in this writ petition are squarely covered by the earlier decisions of this court and apex court is without any substance and accordingly it is rejected.-- articles 19(1)(a) & (g) r/w article 21(a): freedom of the children to have primary education in a language of their choice held, article 19(1)(a) declares that all citizens shall have the right to freedom of speech and expression. the medium of acquiring knowledge or information should be the choice of the person acquiring the knowledge. in what language the instructions are to be taken or imparted should be the choice of the student or the person imparting education. there cannot be any compulsion regarding the medium of instruction. if there is compulsion, then it would amount to the violation of a human right apart from the fundamental right to freedom of speech and expression. medium of instruction is a species of right to information. therefore, the right to medium of instruction of their choice is implicit in this freedom of speech and expression. when right to education is a fundamental right and in particular by article 21-a, a fundamental right is conferred on all children of the age of six to fourteen years to have free and compulsory education, which is popularly known as primary education. the state has been conferred power under the said article to provide for free education in such a manner as the state may, by law, determine. if this article 21-a is read with article 19(1)(a) all children have the freedom to have primary education in a language of their choice as it is implicit in the right to freedom of speech and expression, the right to study or get instruction in a language of their choice as it is implicit in the right to freedom of speech and expression, the right to have primary education is a medium of instruction of their choice is enshrined in article 19(1)(a) read with article 21-a of the constitution. as this right is conferred on all citizens under article 19(1) (a), the said right is also that of the parents of the child, who are interested in educating their child and on whom a fundamental duty is cast under article 51-a(k), which provides that it shall be the duty of every citizen of india, who is a parent or guardian to provide opportunities for education to his child between the age of six and fourteen years. both these articles, i.e., 21-a and 51-a(k) were introduced by way of eighty sixth amendment to the constitution in the year 2002, conferring a right on the child and an obligation on the parent of the child regarding primary education. these two articles along with 19(1)(a) confers on the child as well as the parent a fundamental right to choose the medium of instruction of their choice.-- articles 19 (1) (a) & (g), 21,26,29(1) & 30(1): right to choose medium of instructions, whether is a fundamental right -interpretation of articles 19(a) (g), 21,26,29(1) & 30(1) held, right to education is a fundamental right, which also includes the right to choose the medium of instruction. the medium of instruction is one aspect of freedom of speech and expression. the freedom of speech and expression includes right to receive and acquire information and to disseminate it. it also includes right to educate, right to be educated, right to inform and right to be informed and entertained. the choice must be of the student and the parent. the states duty is only to provide and create an atmosphere, where the child can have education in a medium of its choice. it cannot compel the student to choose a particular medium of instruction. the right to establish and administer educational institutions of their choice under article 30(1) read with article 29(1) would include the right to have choice of medium of instruction in imparting education. the medium of instruction is to be entirely the choice of the management concerned. therefore, it can be declared that the right to choose a medium of instruction of their choice is a fundamental right under article 19(1)(a)(g), 21,26,29(1) and 30(1) of the constitution of india. article 226 & 227: [cyriac joseph, cj & mrs. manjula chellur & n. kumar, jj] power of the state to decide the language of the children in primary education-right of the parents to secure primary education in the mother tongue held, the parental right in education is the very pivotal point of a democratic system. it is the touch-stone of difference between democratic education and monolithic system of cultural totalitarianism. a child is not a mere creature of the state. the parents have the right to decide as to whether their children should secure primary education in the mother tongue or not. no one can question the constitutional right of parents to discharge their fundamental duty to educate their children by sending them to schools or colleges so long as these schools and college meet the standards established for secular education. the medium of instructions is to be entirely the choice of the parents and the student. the parents have the right to decide as to whether their children should secure primary education in the mother tongue or not. the state cannot step in and arrogate to itself the power to decide as to the language in which the children should have their primary education. therefore, it is a fundamental right of the parent and child to choose the medium of instruction even in primary school. the police power of the state to determine the medium of instruction must yield to the fundamental right of the parent and the child. articles 226 & 227: [cyriac joseph cj, mrs. manjula chellur & n. kumar, jj] government orders dated 22.4.1994 and 29.4.1994 - directions issued by the government to several schools to change the medium of instructions challenge as to -constitutional validity of grievance of the petitioner that the government orders are violative of articles 14, 19(1)(a), 21,29(2) and 30(1)of the constitution of india challenge is mainly against element of compulsion found in clause 6 of the government order under which mother tongue or kannada language shall be the compulsory medium of instruction in i to iv standards of primary schools - held, right to education is a fundamental right being a species of right to life flowing from article 221 of the constitution. by virtue of article 21-a right to free and compulsory primary education is a fundamental right guaranteed to all children of the age of six to fourteen years. the right to choose a medium of instruction is implicit in the right to education. it is a fundamental right of the parent and the child to choose the medium of instruction even in primary schools. right to freedom of speech and expression includes the fright to choose a medium of instruction. imparting education is an occupation and, therefore, the right to carry on any occupation under article 19(1)(g) includes the right to establish and administer and educational institution of ones choice - ones choice includes the choice of medium of instruction. under article 26 of the constitution of india, every religious denomination has a right to establish and maintain an institution for charitable purposes which includes and educational institution. this is a right available to majority and minority religious denominations. every section of the society which has a distinct language script or culture of its own has the fundamental right to conserve the same. this is a right which is conferred on both majority and minority, under article 29(1) of the constitution. all minorities, religious or linguistic, have a right to establish and administer education a institutions of their choice under article 30(1) of the constitution-thus, every citizen, every religious denomination, and every linguistic and religious minority, have a right to establish, administer and maintain and educational institution of his/is choice under articles 19(1)(g), 26 and 30(1) of the constitution of india, which includes the right to choose the medium of instruction. citizen shall be denied admission to an educational institution only on the ground of language as stated in article 29(2)of the constitution of india. the government policy introducing kannada as first language to the children whose mother tongue is kannada is valid., the policy that all children, whose mother tongue is not kannada, the official language of the state, shall study kannada language as one if the subject is also valid. the government policy to have mother tongue or regional language as the medium of instruction at the primary level is valid and legal, in the case of schools run or aided by the state. but, the government policy compelling children studying in other government recognized schools to have primary education only in the mother tongue or the regional language is violative of article 19(1)(g), 26 and 30(1) if the constitution of india. articles 226 & 227: [cyriac joseph cj, mrs. majula chellur & n.kumar, jj] government policy scope of judicial review held, if the government policy infringes upon or violates any fundamental rights guaranteed to the citizens of the country or is contrary to any statutory provisions or which is opposed to principles of natural justice or actuated with mala fides, then, in exercise of its power of judicial review the court can review the said policy. when a policy framed runs against the constitutional provisions, the court must as a part of its constitutional duty interfere with the said policy. in doing so, the court will be discharging its constitutional obligations, maintaining equilibrium between the three wings of the state and maintaining the rule of law. the state can formulate regulations and impose them on unaided educational institutions as a condition precedent for granting recognition to the school. such an institution will of course be subject to regulatory measures aimed at securing excellence in education and maintenance of proper academic standards, atmosphere and infrastructure and prevention of mal administration. however, under the guise of regulation, the state cannot prescribe a particular language as the sole language of medium of instruction, even if that language happens to be the mother tongue or the regional language. then it ceases to be a regulation and becomes an unreasonable restriction on the exercise of a fundamental right. then it directly infringes the fundamental right guaranteed to linguistic minorities under article 30(1) of the constitution of india, it cannot be treated as a restriction under article 19(20) and (6) of the constitution, firstly it is not a reasonable restriction, secondly, it does not fall within any of the parameters expressly provided in those provisions. any regulation which infringes a fundamental right it void ab initio. therefore, if the government policy infringes a fundamental right, by means of judicial review, the courts can restrain the unconstitutional exercise of power by the government. hence, clauses (2)(3)(6) and (8) of the impugned order in its application to schools other than schools run or aided by the government is quashed. all the orders, endorsements, circulars, issued giving effect to the aforesaid clauses (2) (3) (6) and (8) in the impugned order are also quashed. rest of the government order is upheld. article 350a; [cyriac joseph cj, mrs. manjula chellur & n.kumar, jj] facilities for instructions in mother tongue at primary stage importance of mother tongue in primary education- held, it is the mother tongue which is best suited, at the tender age, to acquire and develop literary skills, that enable fuller participation in learning activities. studies have shown that the students learn better through their mother tongue. it creates a positive, non-threatening learning environment. it helps them to express themselves with clarity and to think with precision and vigour. therefore, the first energies of the child should be directed to the through mastering of mother tongue. a childs right from its birth grows amidst the atmosphere of its mother tongue. learning in the mother tongue has cognitive and emotional value. therefore, there is no two opinion worldwide regarding the utility and importance of the mother tongue being the medium of instruction at the primary level of education. the way article 350-a is worded makes it very clear that it is not justifiable in a court of law. it only deals with facility for primary education in mother tongue to children belonging to linguistic majority groups. it does not deal with or refer to the major group in the state. by this article, an obligation was cast upon every state and every local authority within the state to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups. the responsibility of securing such education was entrusted to the president of india. in other words, the said constitutional right was not made a justifiable right in a court of law and the power to compel the state to perform its obligation was left to the discretion of the president of india. therefore, the argument that when the state is under an obligation to provide primary education in mother tongue under article 350-a, it has the power to prescribe mother tongue as the only medium of instruction is without any substance. such a power is not conferred either under article 350-a or under any provision of the constitution on the state. it is nothing to do with the government policy to have medium of instruction in the mother tongue. therefore, article 350-a of the constitution confers a right only on the linguistic minorities only to insist on providing facilities for primary education in their mother tongue, but no right or power is conferred on the state to impose its policy on the linguistic minorities. the state cannot by virtue of this provision compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary school. no such right is conferred on the state by this provision and such a right do not flow from this article. - he, pointed out that the necessary ingredients of section 300 of the new code are satisfied and as such, the petitioners cannot, in law, be prosecuted over again for the same offence of which they have been acquitted and that too, on the basis of the same set of facts. 401 or section 482 of the new code, as the case may be, set aside that order in the interest of justice, because a heinous offence of murder was in question and the two petitioners -in spite of there being voluminous satisfactory evidence against them -would go unpunished 7. the first question to be decided is whether the procedure provided under the new code or the procedure provided under the old code applied to the trial in sessions case no, 5 of 1974 the order of commitment was passed on 15-3-1974. all the records were received by the court of the sessions judge at chickmagalur on 23-3-1974. the only thing that happened is that the first order directing registration of the sessions case was passed by the sessions judge on 2-4-1974. the commit- ment was under the provisions of the old code, the order of commitment having been passed on 15-3-1974 and the records also having been received in the court of the sessions judge on 23-3-1974, that is, well within 1-4-1974, the date on it was argued on behalf of the state that the conviction was bad as the sessions judge had committed a mistake in holding that the public prosecutor had withdrawn from the prosecution in the previous case even before the charge was framed mainly depending on the practice of the sessions courts in not trying the prisoners on charges framed by the committal courts but on the charges framed in the sessions trial. as the prisoner was entitled to be acquitted on the charge, the second charge for the same offence, though on a new sanction was bad.orderm.s. nesargi, j.1. this petition :s directed against the order dated 20-1-1975 passed by the sessions judge, chickmagalur, on the two applications of the two petitioners, in sessions case no. 27 of 1974.2. the necessary facts may be stated briefly as follows:in regard to the murder of one bobe-gowda, a case in crime no. 62 of 1973 was registered on 13-10-1973, on completion of the investigation a charge-sheet was filed against these two petitioners only. on 16-11-1973, the case was registered as c. c. no. 2319 of 1973. the magistrate inquired into the case and committed the petitioners by his order dated 15-3-1974 and framed a charge against them for having committed an offence under section 302 read with 34, indian penal code. he read over and explained the charge to the petitioners and directed them to take trial before the court of the sessions judge, chickmagalur, the records of the case reached the court of the sessions judge, chickmagalur, on 23-3-1974. the case was ordered to be registered as s. c. no, 5 of 1974. the trial of the case was posted on 15-7-1974. but by that time, on 29-6-1974, the public prosecutor filed an application under section 494 of the cri. p. c, 1898, (hereinafter referred to as the old code) praying for permission of the court to with- draw from the prosecution. the sessions judge passed an order giving permission and in the course of that order he ordered that the two petitioners, who were the only accused in that case, be discharged. thereafter, the state government ordered fresh investigation into the offence and that was done. after that investigation, a charge-sheet was filed before the j. m. f. c, ii court chickmagalur, as against these two petitioners and three others. the two petitioners were shown as a-l and a-5. as this charge-sheet was filed after 1-4-1974, the magistrate, on finding that there appeared to be an offence exclusively triable by the court of the sessions judge, committed the five accused under sec, 209 of the criminal procedure code, 1973 (hereinafter referred to as the new code). the case was registered, as sessions case n. 27 of 1974 in the court of the sessions judge, chickmagalur. then these two petitioners filed the applications under section 300 of the new code contending that by virtue of the order dated 29-6-1974 parsed by fee sessions judge on the application fled by the public prosecutor under section 494 of the old code, they have been, in lew, acquitted and as such, they commitment not be once again prosecuted. the sessions judge dismissed these applications by the order in question.3. sri b. k. ramachandra into, learned counsel appearing on behalf of the petitioners, pointed out that the sessions judge, chickmagalur, folio wed the procedure prescribed under the old code while dealing with sessions case not 5 of 1974 and passed the order dated 15-7-1974, on the application filed by the public prosecutor. he contended that under section 207-a (7) of the old code the magistrate had framed a charge, read over and explained the charge to the petitioners, and therefore section 494(b) o# the old code applied. he, further argued that even though the sessions judge, has, in his order dated 29-6-1974, ordered discharge of the petitioners as a consequence of the public prosecutor withdrawing from prosecution, the legal effect of granting the permission is the one mentioned in section 494(b) of the old code, and that is acquittal of the petitioners. he, pointed out that the necessary ingredients of section 300 of the new code are satisfied and as such, the petitioners cannot, in law, be prosecuted over again for the same offence of which they have been acquitted and that too, on the basis of the same set of facts.4. sri a. m. farooq, learned government pleader appearing on behalf of the state, firstly contended that the re-cords in c. c. no. 2319 of 1973 - after the order of connmtinent was passed by the magistrate - reached the court of sessions judge, chictemagalur, on 23-3-1974, but the sessions judge passed his first order of registering the case on 2-4-1974 and that shows that the sessions case came to remain pending in the court of the sessions judge after 1-4-1974 and hence the new code would be applicable, he urged that in view of sections 226 and 227 of the new code, the sessions judge had to. frame a charge before proceeding with the sessions trial in that case, name-ly, sessions case no. 5 of 1974, but, be-fore the sessions judge framed a charge, the public prosecutor moved for permission to withdraw from the prosecution and the sessions judge granted permission on 29-6-1974, hence the order dated 29-6-1974 passed by the sessions judge, chiekmaga-lur, is an order under section 321(a) of the new code and that is why the sessions judge has ordered discharge of the petitioners.5. he next contended that even if the provisions of the old code applied end the sessions judge passed the order dialed 29-06-1974 under section 494 of the old code, no change having been framed before the commencement of the sessions trial section 494(a) the code applied and the order of discharge passed by- him is the appropriate order in law, and as such section 300 of the new coda would not at all be applicable.6. he lastly urged mat a perusal of the order passed by the sessions judge laid down by the supreme court in state of bihar v. ram naresh pandey : (1957)illj226sc and m. n. sankaranarayanan nair v. p. v. batekrishnan : 1972crilj301 , were not followed by the sessions judge and that shows that the order is unsustainable in law. he argued that this court should suo motu take notice of the untenability of the order dated 29-6-1974 and in exercise of its powers under sec-hon. 401 or section 482 of the new code, as the case may be, set aside that order in the interest of justice, because a heinous offence of murder was in question and the two petitioners - in spite of there being voluminous satisfactory evidence against them - would go unpunished7. the first question to be decided is whether the procedure provided under the new code or the procedure provided under the old code applied to the trial in sessions case no, 5 of 1974 the order of commitment was passed on 15-3-1974. all the records were received by the court of the sessions judge at chickmagalur on 23-3-1974. the only thing that happened is that the first order directing registration of the sessions case was passed by the sessions judge on 2-4-1974. the commit- ment was under the provisions of the old code, the order of commitment having been passed on 15-3-1974 and the records also having been received in the court of the sessions judge on 23-3-1974, that is, well within 1-4-1974, the date on which the new code came into force it is plain that the sessions case,' though, it was not at that time actually registered in the sessions register was pending for trial in the court of the sessions judge, chick- magalur, prior to 1-4-1974 the fact that the sessions judge passed his first order ^ the order sheet of that case on 2-4-1974 does not at all change the situation. even if the re- cords of the case had been received by the sessions court after 1-4-1974 the position in law, in my opinion, would not have changed. section 484(2) of the new code reads as follows:'-(2) notwithstanding such re-peal .-(a) if, immediately before the date on which this code comes into force , there is any appeal application trial inquiry or investigation pending then such appeal application trial inquiry or investigation shall be disposed of held or made as the case may be in accordance with the provision of the code of criminal procedure 1898 as in force immediately before such commenced (hereinafter) referred to as the old code ) as if this code had not come into forceprovided that every inquiry under chapter xviii of the old code, which is pending at the commencement of this code, shall be dealt with and disposed of in accord- accordance with the provisions of this code;(b)...(c)...(d)...a reading of this provision makes it clear that if a trial is pending in a court immediately before 1-4-1974, the trial would be governed by the provisions of the old code. the word 'pending' used in the above provision cannot be understood to mean that the records should physically be there immediately before 1-4-1974. section 207a of the old code deals with the procedure to be adopted in an inquiry into cases triable by the court of session or high court. it provides that after committing the accused to the court of session, the magistrate shall summon witnesses included in the list given by the accused, to appear before the sessions court to which the accused are committed. all this material shows that right from the date of the order of commitment, it is deemed in law, that the trial of the accused is to be pending in the concerned court of session. this position in law would be more clear if an illustration of reference under section 435 of the old code is taken into consideration. under section 435 of the old code, the sessions judge does not have powers to pass a. final order. he has to, if he is of the opinion that the order in question is unsustainable in law, make a reference to the high court and the high court has to pass the final order. if, in a criminal revision petition, pending before a sessions judge immediately prior to 1-4-1974, the sessions judge passes an order making a reference to the high court and the concerned papers do not reach the high court prior to 1-4-1974, could it be said that in the high court the reference should be disposed of under the provisions of the new code? it is easy to see that if such an interpretation is made of the word 'pending' in section 484(2) of the new code, it would lead to an anomalous situation of leaving the parties in lurch. the sessions judge in the illustration given above could not have disposed of the revision under the old code and the reference made to the high court could not be disposed of under the new code there being no provision to that effect. that means the parties would have no forum to get their case heard and disposed of. therefore, even if the sessions judge passes an order of reference on any date after 1-4-1974 in a criminal revision petition pending before him immediately prior to 1-4-1974, that reference will have to be disposed of by the high court under the provisions of the old code. hence, it is immaterial as to when the records in such matters reach the high court therefore, for the purpose of section 284(2)(a) of the new code, it is immaterial when the records reach the court concerned. in this view of the matter, the contention of sri farooq cannot be accepted. i hold that the provisions of the old code governed the sessions case no. 5 of 1974 and the order dated 29-6-1974 passed by the sessions judge was under section 494 of the old cede. in fact the record shows that the sessions court had applied the provisions of the old code in the matter of trial of sessions case no. 5 of 1974.8. section 494 of the old code reads as follows:494. effect of withdrawal from prosecution:any public prosecutor may, with the consent of the court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;if it is made after a charge has been framed, or when under this code no charge is required, he shall be acquitted in respect of such offence or offences.9. now it is to be seen whether the facts of this case fall within the ambit of sub-section (a) or sub-section (b) of section 494 of the old code. the argument of sri ramachandra rao is that the magistrate trate having already framed the charge as per section 207-a(7) of the old code and there being no provision in the old code making it incumbent on the sessions judge to frame a charge before proceeding with the trial in a sessions case, it will have to be held that sub-section (b) of section 494 of the old code applied to the facts. sri farooq argued that the charge contemplated under sub-section (b) of section 494 of the old code is different from the charge contemplated under section 207-a(7) of the old code. the sessions judge being competent to frame a charge, it must be held that if the sessions judge had framed a charge in a given sessions case, then section 494(b) of the old code would apply and if the sessions judge had not framed a charge in a given sessions case, section 494(a) of the old code would apply.9-a. section 207-a(7) of the old code makes it incumbent on a magistrate holding an inquiry into cases triable by the court of session or the high court, to frame a charge, under his hand declaring with what offence the accused is charged, when the magistrate is of opinion that the accused should be committed for trial. it is also incumbent on him to - as soon as he frames such charge - read and explain the charge to the accused and give a copy thereof free of cost thereafter he has to ask the accused to furnish, orally or in writing, the names of his witnesses. it is then that he has to make an order committing the accused for trial by the court of session or the high court as the case may be. what is to be noticed is that the magistrate, after framing the charge and reading over and explaining to the accused and even after furnishing a free copy to the accused, is not given the power to record the plea of the accused.10. the procedure for trial before high court and court of session is found in chapter xx1ti of the old code. the actual procedure to be adopted for a trial before court of session is narrated from section 271 onwards in chapter xxiii of the old code.section 271 of the old code reads as follows:when the court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.(2) plea of guilty.- if the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon.what is to be particularly noticed in this provision is that it nowhere states that the sessions judge shall frame a charge. but, it specifically states that the sessions judge should read out and explain the charge to the accused and then call upon him to state whether he is guilty or he claims to be tried. it is evident that the charge referred to in this section 271 is the charge framed by the committing magistrate under section 207-a(7) of the old code.11. at this stage it is convenient to deal with the contention of sri farooq on the basis of section 226 of the old code. section 226 of the old code reads as follows:226 procedure on commitment without charge or with imperfect charge.-when any person is committed for trial without a charge, or with an imperfect or erroneous charge, the court, or, in the case of a high court, the clerk of the state, may frame a charge, or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this code as to the form of charges.12. it goes without saying that either the old code or the new code, does not envisage a trial of a case without a charge being framed. but a reading of the provisions of sections 271 onwards of the old code, would make one to understand) that though the sessions judge is not; required to frame a charge, he has to read over and explain the charge to the accused and record his plea. section 226 of the old code, as is manifest, relates to section 2o7a(7). if a committing magistrate fails to frame a charge while committing the accused for trial or frames an imperfect or erroneous charge, then the court trying the sessions case may frame a charge or add to or otherwise alter the charge framed by the committing magistrate. therefore, it is clear that the irregularity committed by the committing magistrate is curable by the trying court. this provision cannot be understood to mean that it is incumbent on the trying court to frame a charge afresh and then proceed to hold trial. hence, i have no hesitation in holding that the charge on which the accused is to be tried in a sessions case is the charge framed under section 207-a(7) of the old code. the charge mentioned in section 494(b) of the old code is the charge that is framed for the purpose of trial. hence, the charge framed under section 207-a(7) of the old code would be the one within the meaning of section 494(b) of the old code.13. in queen-empress v. shivarama, (1889) ilr 12 mad 35, the madras high court has dealt with sections 494, 210, 271 and 226 of the code of criminal procedure as it stood then while considering the question of bar of second trial. in that case sivarama was prosecuted on the basis of a sanction to prosecute granted by the district. munsiff in regard to sivarama having given false evidence in a suit. sivarama was committed for trial. the sessions judge held that sanction granted by the district munsiff was too vague and did not apply to sivarama. at that stage the public prosecutor withdrew from the prosecution and the sessions judge directed that sivarama should be discharged, thereupon a fresh sanction was obtained from the district munsiff and sivarama was again prosecuted and committed to trial before the sessions judge. the sessions judge convicted sivarama. on the question whether the second trial was barred because of section 494(b) of the cr. p. c, the sessions judge held that the public prosecutor had withdrawn from the prosecution in the previous case before a charge was framed and sivarama had been discharged, hence the second prosecution tion was not barred. it was argued on behalf of the state that the conviction was bad as the sessions judge had committed a mistake in holding that the public prosecutor had withdrawn from the prosecution in the previous case even before the charge was framed mainly depending on the practice of the sessions courts in not trying the prisoners on charges framed by the committal courts but on the charges framed in the sessions trial. it was farther argued on behalf of the state that in the previous case sivarama ought to have been acquitted as per section 494(b) of the cr.p.c. and the only way to remedy the defect was to set aside all proceedings including the erroneous order of discharge and to direct a new trial from that point. their lordships held that the charge was withdrawn by the public prosecutor by permission of the sessions judge and the result was that under section 494(b) the prisoner should have been acquitted. but he was merely discharged. that procedure was wrong. as the prisoner was entitled to be acquitted on the charge, the second charge for the same offence, though on a new sanction was bad. their lordships reversed the conviction. i may mention here that the provisions in sections 210, 226, 271 and 494 of the cr.p.c. as it stood in 1898 were similar to the very sections in the old code. i respectfully agree with the view taken by their lordships of the madras high court.14. in view of the foregoing reasons 1 hold that though by the order dated 29-6-1974 in sessions case no. 5 of 1974 the sessions judge discharged the petitioners, the effect of the public prosecutor withdrawing from the prosecution was acquittal of the petitioners. hence the petitioners were acquitted in sessions case no 5 of 1974. therefore, they cannot be prosecuted in sessions case no. 27 of 1974 in view of section 300 of the new code.15. i do not think that there is any force in the contention of sri farooq that this court should suo motu set aside the order dated 29-6-1'974 passed by the sessions judge in sessions case no. 5 of 1974 on the ground that the sessions judge had not applied his mind particularly in the light of the decisions in : 1957crilj567 and : 1972crilj301 to the facts and circumstances made out in the application filed by the public prosecutor praying for permission to withdraw from the prosecution. now it is seen that the petitioners were acquitted on 29-6-1974. the order dated 29-6-1974 was not at all challenged either by the state or by the informant concerned in the offence of murder of bobe-gowda. the fact i.hat the state had misconceived the position in law as it was its intention to get a re-investigation made and to tile a fresh charge-sheet is not at all a ground to make this court act at this stage, that too invoking the powers of this court under section 401 or section 482 of the new code. it is to be seen that a similar point was argued before their lordships of the madras high court in sivarama's case. tore-iterate it was argued on behalf of the state that, the only way to remedy the defect was to set aside all proceedings including the erroneous order of discharge and direct a new trial from that point. their lordships repelled that contention. i respectfully agree with the decision on this point. moreover if the contention advanced by sri farooq is accepted, it means that at this stege, this court has to interfere with the order of acquittal and direct a trial, though it is not shown that such an order is in the interest of justice. sri farooq argued that there is abundant evidence against these two petitioners to show that they had committed the murder of bobegowda, and if such a course is not adopted, the two petitioners would remain acquitted and that would be injustice. i am not impressed by this reasoning. the high court ought not to exercise its powers under section 401 of the new code to interfere with an acquittal by adopting an indirect method of order of trial. that is exactly what has been held by the supreme court in k. chinnaswamy reddy v. state of andhra pradesh : [1963]3scr412 .16. in the result this petition succeeds and is allowed. it is held that the trial against the petitioners i.e. accused nos. 1 and 5 in sessions case no. 27/74 before the sessions judge at chickmagalur, is barred by the provisions of section 300 of the new code as they have been already acquitted of the same charge passed on the same set of facts. the committal order passed against them is quashed.

Judgment:
ORDER

M.S. Nesargi, J.

1. This petition :s directed against the order dated 20-1-1975 passed by the Sessions Judge, Chickmagalur, on the two applications of the two petitioners, in Sessions Case No. 27 of 1974.

2. The necessary facts may be stated briefly as follows:

In regard to the murder of one Bobe-gowda, a case in Crime No. 62 of 1973 was registered on 13-10-1973, On completion of the investigation a charge-sheet was filed against these two petitioners only. On 16-11-1973, the case was registered as C. C. No. 2319 of 1973. The Magistrate inquired into the case and committed the petitioners by his order dated 15-3-1974 and framed a charge against them for having committed an offence under Section 302 read with 34, Indian Penal Code. He read over and explained the charge to the petitioners and directed them to take trial before the Court of the Sessions Judge, Chickmagalur, The records of the case reached the Court of the Sessions Judge, Chickmagalur, on 23-3-1974. The case was ordered to be registered as S. C. No, 5 of 1974. The trial of the case was posted on 15-7-1974. But by that time, on 29-6-1974, the Public Prosecutor filed an application under Section 494 of the Cri. P. C, 1898, (hereinafter referred to as the Old Code) praying for permission of the Court to with- draw from the prosecution. The Sessions Judge passed an order giving permission and in the course of that order he ordered that the two petitioners, who were the only accused in that case, be discharged. Thereafter, the State Government ordered fresh investigation into the offence and that was done. After that investigation, a charge-sheet was filed before the J. M. F. C, II Court Chickmagalur, as against these two petitioners and three others. The two petitioners were shown as A-l and A-5. As this charge-sheet was filed after 1-4-1974, the Magistrate, on finding that there appeared to be an offence exclusively triable by the Court of the Sessions Judge, committed the five accused under Sec, 209 of the Criminal Procedure Code, 1973 (hereinafter referred to as the New Code). The case was registered, as Sessions Case N. 27 of 1974 in the Court of the Sessions Judge, Chickmagalur. Then these two petitioners filed the applications under Section 300 of the New Code contending that by virtue of the order dated 29-6-1974 parsed by fee Sessions Judge on the application fled by the Public Prosecutor under Section 494 of the old Code, they have been, in lew, acquitted and as such, they commitment not be once again prosecuted. The Sessions Judge dismissed these applications by the order In question.

3. Sri B. K. Ramachandra Into, learned Counsel appearing on behalf of the petitioners, pointed out that the Sessions Judge, Chickmagalur, folio wed the procedure prescribed under the old Code while dealing with Sessions Case Not 5 of 1974 and passed the order dated 15-7-1974, on the application filed by the Public Prosecutor. He contended that under Section 207-A (7) of the Old Code the Magistrate had framed a charge, read over and explained the charge to the petitioners, and therefore Section 494(b) o# the Old Code applied. He, further argued that even though the Sessions Judge, has, in his order dated 29-6-1974, ordered discharge of the petitioners as a consequence of the Public Prosecutor withdrawing from prosecution, the legal effect of granting the permission is the one mentioned in Section 494(b) of the Old Code, and that is acquittal of the petitioners. He, pointed out that the necessary ingredients of Section 300 of the New Code are satisfied and as such, the petitioners cannot, in law, be prosecuted over again for the same offence of which they have been acquitted and that too, on the basis of the same set of facts.

4. Sri A. M. Farooq, learned Government Pleader appearing on behalf of the State, firstly contended that the re-cords in C. C. No. 2319 of 1973 - after the order of connmtinent was passed by the Magistrate - reached the Court of Sessions Judge, Chictemagalur, on 23-3-1974, but the Sessions Judge passed his first order of registering the case on 2-4-1974 and that shows that the sessions case came to remain pending in the Court of the Sessions Judge after 1-4-1974 and hence the New Code would be applicable, He urged that in view of Sections 226 and 227 of the New Code, the Sessions Judge had to. frame a charge before proceeding with the Sessions trial in that case, name-ly, Sessions Case No. 5 of 1974, but, be-fore the Sessions Judge framed a charge, the Public Prosecutor moved for permission to withdraw from the prosecution and the Sessions Judge granted permission on 29-6-1974, hence the order dated 29-6-1974 passed by the Sessions Judge, Chiekmaga-lur, is an order under Section 321(a) of the New Code and that is why the Sessions Judge has ordered discharge of the petitioners.

5. He next contended that even If the provisions of the old Code applied end the Sessions Judge passed the order dialed 29-06-1974 under Section 494 of the Old Code, no change having been framed before the commencement of the Sessions trial Section 494(a) the code applied and the order of discharge passed by- him is the appropriate order in law, and as such Section 300 of the New Coda would not at all be applicable.

6. He lastly urged mat a perusal of the order passed by the Sessions Judge laid down by the Supreme Court in State of Bihar v. Ram Naresh Pandey : (1957)ILLJ226SC and M. N. Sankaranarayanan Nair v. P. V. Batekrishnan : 1972CriLJ301 , were not followed by the Sessions Judge and that shows that the order is unsustainable in law. He argued that this Court should suo motu take notice of the untenability of the order dated 29-6-1974 and in exercise of its powers under Sec-Hon. 401 or Section 482 of the New Code, as the case may be, set aside that order in the interest of justice, because a heinous offence of murder was in question and the two petitioners - in spite of there being voluminous satisfactory evidence against them - would go unpunished

7. The first question to be decided Is whether the procedure provided under the New Code or the procedure provided under the Old Code applied to the trial in Sessions Case No, 5 of 1974 The order of commitment was passed on 15-3-1974. All the records were received by the Court of the Sessions Judge at Chickmagalur on 23-3-1974. The only thing that happened is that the first order directing registration of the Sessions case was passed by the Sessions Judge on 2-4-1974. The commit- ment was under the provisions of the Old Code, The order of commitment having been passed on 15-3-1974 and the records also having been received in the Court of the Sessions Judge on 23-3-1974, that is, well within 1-4-1974, the date on which the new Code came into force it is plain that the Sessions case,' though, it was not at that time actually registered in the sessions register was pending for trial in the Court of the Sessions Judge, Chick- magalur, prior to 1-4-1974 The fact that the Sessions Judge passed his first order ^ the order sheet of that case on 2-4-1974 does not at all change the situation. Even if the re- cords of the case had been received by the Sessions Court after 1-4-1974 the position in law, in my opinion, would not have changed. Section 484(2) of the new Code reads as follows:'-

(2) Notwithstanding such re-peal .-

(a) if, immediately before the date on which this code comes into force , there is any appeal Application trial inquiry or investigation pending then such appeal application trial inquiry or investigation shall be disposed of held or made as the case may be in accordance with the provision of the code of criminal procedure 1898 as in force immediately before such commenced (hereinafter) referred to as the old code ) as if this code had not come into force

Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accord- accordance with the provisions of this Code;(b)...

(c)...

(d)...

A reading of this provision makes it clear that if a trial is pending in a Court immediately before 1-4-1974, the trial would be governed by the provisions of the old Code. The word 'pending' used in the above provision cannot be understood to mean that the records should physically be there immediately before 1-4-1974. Section 207A of the old Code deals with the procedure to be adopted in an inquiry into cases triable by the Court of Session or High Court. It provides that after committing the accused to the Court of Session, the Magistrate shall summon witnesses included in the list given by the accused, to appear before the Sessions Court to which the accused are committed. All this material shows that right from the date of the order of commitment, it is deemed in law, that the trial of the accused is to be pending in the concerned Court of Session. This position in law would be more clear if an illustration of reference under Section 435 of the old Code is taken into consideration. Under Section 435 of the old Code, the Sessions Judge does not have powers to pass a. final order. He has to, if he is of the opinion that the order in question is unsustainable in law, make a reference to the High Court and the High Court has to pass the final order. If, in a criminal revision petition, pending before a Sessions Judge immediately prior to 1-4-1974, the Sessions Judge passes an order making a reference to the High Court and the concerned papers do not reach the High Court prior to 1-4-1974, could it be said that in the High Court the reference should be disposed of under the provisions of the new Code? It is easy to see that if such an interpretation is made of the word 'pending' in Section 484(2) of the new Code, it would lead to an anomalous situation of leaving the parties in lurch. The Sessions Judge in the illustration given above could not have disposed of the revision under the old Code and the reference made to the High Court could not be disposed of under the new Code there being no provision to that effect. That means the parties would have no forum to get their case heard and disposed of. Therefore, even if the Sessions Judge passes an order of reference on any date after 1-4-1974 in a criminal revision petition pending before him immediately prior to 1-4-1974, that reference will have to be disposed of by the High Court under the provisions of the old Code. Hence, it is immaterial as to when the records in such matters reach the High Court Therefore, for the purpose of Section 284(2)(a) of the new Code, it is immaterial when the records reach the Court concerned. In this view of the matter, the contention of Sri Farooq cannot be accepted. I hold that the provisions of the old Code governed the Sessions Case No. 5 of 1974 and the order dated 29-6-1974 passed by the Sessions Judge was under Section 494 of the old Cede. In fact the record shows that the Sessions Court had applied the provisions of the old Code in the matter of trial of Sessions Case No. 5 of 1974.

8. Section 494 of the old Code reads as follows:

494. EFFECT OF WITHDRAWAL FROM PROSECUTION:

Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.

9. Now it is to be seen whether the facts of this case fall within the ambit of Sub-section (a) or Sub-section (b) of Section 494 of the old Code. The argument of Sri Ramachandra Rao is that the Magistrate trate having already framed the charge as per Section 207-A(7) of the old Code and there being no provision in the old Code making it incumbent on the Sessions Judge to frame a charge before proceeding with the trial in a Sessions Case, it will have to be held that Sub-section (b) of Section 494 of the old Code applied to the facts. Sri Farooq argued that the charge contemplated under Sub-section (b) of Section 494 of the old Code is different from the charge contemplated under Section 207-A(7) of the old Code. The Sessions Judge being competent to frame a charge, it must be held that if the Sessions Judge had framed a charge in a given sessions case, then Section 494(b) of the old Code would apply and if the Sessions Judge had not framed a charge in a given sessions case, Section 494(a) of the old Code would apply.

9-A. Section 207-A(7) of the old Code makes it incumbent on a Magistrate holding an inquiry into cases triable by the Court of Session or the High Court, to frame a charge, under his hand declaring with what offence the accused is charged, when the Magistrate is of opinion that the accused should be committed for trial. It is also incumbent on him to - as soon as he frames such charge - read and explain the charge to the accused and give a copy thereof free of cost Thereafter he has to ask the accused to furnish, orally or in writing, the names of his witnesses. It is then that he has to make an order committing the accused for trial by the Court of Session or the High Court as the case may be. What is to be noticed is that the Magistrate, after framing the charge and reading over and explaining to the accused and even after furnishing a free copy to the accused, is not given the power to record the plea of the accused.

10. The procedure for trial before High Court and Court of Session is found in Chapter XX1TI of the old Code. The actual procedure to be adopted for a trial before Court of Session is narrated from Section 271 onwards in Chapter XXIII of the old Code.

Section 271 of the old Code reads as follows:

When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.(2) PLEA OF GUILTY.- If the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon.

What is to be particularly noticed in this provision is that it nowhere states that the Sessions Judge shall frame a charge. But, it specifically states that the Sessions Judge should read out and explain the charge to the accused and then call upon him to state whether he is guilty or he claims to be tried. It is evident that the charge referred to in this Section 271 is the charge framed by the committing Magistrate under Section 207-A(7) of the old Code.

11. At this stage it is convenient to deal with the contention of Sri Farooq on the basis of Section 226 of the old Code. Section 226 of the old Code reads as follows:

226 PROCEDURE ON COMMITMENT WITHOUT CHARGE OR WITH IMPERFECT CHARGE.-When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the State, may frame a charge, or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this Code as to the form of charges.

12. It goes without saying that either the old Code or the new Code, does not envisage a trial of a case without a charge being framed. But a reading of the provisions of Sections 271 onwards of the old Code, would make one to understand) that though the Sessions Judge is not; required to frame a charge, he has to read over and explain the charge to the accused and record his plea. Section 226 of the old Code, as is manifest, relates to Section 2O7A(7). If a committing Magistrate fails to frame a charge while committing the accused for trial or frames an imperfect or erroneous charge, then the Court trying the sessions case may frame a charge or add to or otherwise alter the charge framed by the committing Magistrate. Therefore, it is clear that the irregularity committed by the committing Magistrate is curable by the trying Court. This provision cannot be understood to mean that it is incumbent on the trying Court to frame a charge afresh and then proceed to hold trial. Hence, I have no hesitation in holding that the charge on which the accused is to be tried in a sessions case is the charge framed under Section 207-A(7) of the old Code. The charge mentioned in Section 494(b) of the old Code is the charge that is framed for the purpose of trial. Hence, the charge framed under Section 207-A(7) of the old Code would be the one within the meaning of Section 494(b) of the old Code.

13. In Queen-Empress v. Shivarama, (1889) ILR 12 Mad 35, the Madras High Court has dealt with Sections 494, 210, 271 and 226 of the Code of Criminal Procedure as it stood then while considering the question of bar of second trial. In that case Sivarama was prosecuted on the basis of a sanction to prosecute granted by the District. Munsiff in regard to Sivarama having given false evidence in a suit. Sivarama was committed for trial. The Sessions Judge held that sanction granted by the District Munsiff was too vague and did not apply to Sivarama. At that stage the Public Prosecutor withdrew from the prosecution and the Sessions Judge directed that Sivarama should be discharged, Thereupon a fresh sanction was obtained from the District Munsiff and Sivarama was again prosecuted and committed to trial before the Sessions Judge. The Sessions Judge convicted Sivarama. On the question whether the second trial was barred because of Section 494(b) of the Cr. P. C, the Sessions Judge held that the Public Prosecutor had withdrawn from the prosecution in the previous case before a charge was framed and Sivarama had been discharged, hence the second prosecution tion was not barred. It was argued on behalf of the State that the conviction was bad as the Sessions Judge had committed a mistake in holding that the Public Prosecutor had withdrawn from the prosecution in the previous case even before the charge was framed mainly depending on the practice of the Sessions Courts in not trying the prisoners on charges framed by the Committal Courts but on the charges framed in the Sessions trial. It was farther argued on behalf of the State that in the previous case Sivarama ought to have been acquitted as per Section 494(b) of the Cr.P.C. and the only way to remedy the defect was to set aside all proceedings including the erroneous order of discharge and to direct a new trial from that point. Their Lordships held that the charge was withdrawn by the Public Prosecutor by permission of the Sessions Judge and the result was that under Section 494(b) the prisoner should have been acquitted. But he was merely discharged. That procedure was wrong. As the prisoner was entitled to be acquitted on the charge, the second charge for the same offence, though on a new sanction was bad. Their Lordships reversed the conviction. I may mention here that the provisions in Sections 210, 226, 271 and 494 of the Cr.P.C. as it stood in 1898 were similar to the very Sections in the old Code. I respectfully agree with the view taken by their Lordships of the Madras High Court.

14. In view of the foregoing reasons 1 hold that though by the order dated 29-6-1974 in Sessions Case No. 5 of 1974 the Sessions Judge discharged the petitioners, the effect of the Public Prosecutor withdrawing from the prosecution was acquittal of the petitioners. Hence the petitioners were acquitted in Sessions Case No 5 of 1974. Therefore, they cannot be prosecuted in Sessions Case No. 27 of 1974 in view of Section 300 of the new Code.

15. I do not think that there is any force in the contention of Sri Farooq that this Court should suo motu set aside the order dated 29-6-1'974 passed by the Sessions Judge in Sessions Case No. 5 of 1974 on the ground that the Sessions Judge had not applied his mind particularly in the light of the decisions in : 1957CriLJ567 and : 1972CriLJ301 to the facts and circumstances made out in the application filed by the Public Prosecutor praying for permission to withdraw from the prosecution. Now it is seen that the petitioners were acquitted on 29-6-1974. The order dated 29-6-1974 was not at all challenged either by the State or by the informant concerned in the offence of murder of Bobe-gowda. The fact i.hat the State had misconceived the position in law as it was its intention to get a re-investigation made and to tile a fresh charge-sheet is not at all a ground to make this Court act at this stage, that too invoking the powers of this Court under Section 401 or Section 482 of the new Code. It is to be seen that a similar point was argued before their Lordships of the Madras High Court in Sivarama's case. Tore-iterate it was argued on behalf of the State that, the only way to remedy the defect was to set aside all proceedings including the erroneous order of discharge and direct a new trial from that point. Their Lordships repelled that contention. I respectfully agree with the decision on this point. Moreover if the contention advanced by Sri Farooq is accepted, it means that at this stege, this Court has to interfere with the order of acquittal and direct a trial, though it is not shown that such an order is in the interest of justice. Sri Farooq argued that there is abundant evidence against these two petitioners to show that they had committed the murder of Bobegowda, and if such a course is not adopted, the two petitioners would remain acquitted and that would be injustice. I am not impressed by this reasoning. The High Court ought not to exercise its powers under Section 401 of the new Code to interfere with an acquittal by adopting an indirect method of order of trial. That is exactly what has been held by the Supreme Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh : [1963]3SCR412 .

16. In the result this petition succeeds and is allowed. It is held that the trial against the petitioners i.e. accused Nos. 1 and 5 in Sessions Case No. 27/74 before the Sessions Judge at Chickmagalur, is barred by the provisions of Section 300 of the new Code as they have been already acquitted of the same charge passed on the same set of facts. The Committal Order passed against them is quashed.