Public Prosecutor vs V. Rajagopala Naidu

Somasundaram, J.—This is an appeal by the State against the acquittal of the respondent by the District Magistrate of Ramanathapuram

under the following circumstances: The respondent was prosecuted in G. C. No. 90 of 1955 on the file of the Additional First Class Magistrate,

Devakottah, for an offence u/s 14(c) of the Madras Entertainments Tax Act, 1939 in that he showed reduced income falsely to escape

entertainments tax in respect of a theatre managed by him.

After the prosecution evidence was over and filter the accused was questioned u/s 342 Cri. P. C., it appeared to the prosecution that there were

other partners in addition to the respondent herein. The Assistant Public Prosecutor II thereupon filed a memo stating that a fresh charge-sheet will

be filed against the accused and two other partners on the same facts and, therefore, the proceedings should be stayed u/s 249 Cri. P. C. As the

case was triable as a summons case, a complaint was filed against the three persons, that is, against the present respondent and his two other

partners on the basis that they are all partners of the same firm and the cases were numbered as C.C. Nos. 38 and 39 of 1956. The cases ended

in the acquittal of the other partners who were accused 2 and 3 and in the conviction of the present respondent only. An appeal against the

conviction under the law then in force, lay only to the Sessions Court. The Sessions Judge before whom the appeal was filed set aside the

conviction and ordered retrial of the case by the District Magistrate of Ramanathapuram.

When the case came up for trial before the District Magistrate a memo was filed on behalf of the respondent herein that the case against him

cannot be tried, as stopping of proceedings u/s 249, Cri. P. C. in the circumstances of this case would amount to an acquittal and that the present

proceedings were, therefore, barred by Section 403 Cri. P. C. The District Magistrate went into the question and held that the proceedings were

barred by Section 403, Cri. P. C. and that, therefore, the respondent cannot be tried again. On this finding he acquitted the accused. Against this

order of acquittal the State has preferred the present appeal.

The main ground on which the District Magistrate came to the conclusion that the trial before him was barred was that u/s 249, Cri. P. C.

proceedings could be stayed only in cases filed otherwise than upon a complaint. In the Criminal Procedure Code there is a distinction drawn

between an ordinary complaint and a police charge sheet. A complaint is defined as meaning an allegation made orally or in writing to a Magistrate

with a view to his taking action under the Code that some person known or unknown has committed an offence; but It does not include the report

of a police officer.

In the present case the complaint is by the Assistant Commercial Tax Officer, Sivaganga, for an offence under the Madras Entertainments Tax Act

1939 and therefore it falls within the definition of ""complaint"" set out in the Criminal Procedure Code and is not a report of a police officer. Section

249 Cri. P. C. applies only to a case instituted otherwise than upon a complaint. The section therefore does not apply to a case filed on complaint.

This case being instituted on complaint, the question is what is the result of the order passed on the memo filed by the Assistant Public Prosecutor

II.

The memo clearly says: ""The Assistant Commercial Tax Officer, Sivaganga, has been instructed to file a fresh charge sheet against this accused

(respondent) and the two other partners on the same facts. It is, therefore, requested that proceedings in this case may be stayed u/s 249 Cri P. C.

in view of the fresh complaint proposed to be filed by the State."" This memo is filed by the Assistant Public Prosecutor II. Though actually words

withdrawing the complaint"" are not used still the statement ""In view of the complaint proposed to be filed"" and asking for stay on that account,

would only amount to withdrawal of the complaint u/s 494 Cri. P. C.

Though the actual words ""withdrawal of the complaint"" have not been used, in the circumstances it amounts to the withdrawal of the complaint. If

the complaint was withdrawn in a summons case, the only order that can be passed is acquittal and if the accused who is the sole person who is

tried in C. C. No. 90 of 1955 was acquitted and the present trial is also against the same accused (respondent) for the same offence for which he

was tried and acquitted in the prior case, it must be construed that the order of acquittal in that case will stand in the way of the present case being

tried again for the same offence and on the same facts. The plea of autrefois acquit raised before the learned District Magistrate is justified. The

appeal, therefore, fails and is dismissed.