Chintanath Jha v. Gauri Shanker — 1991 DIGILAW 121 (PAT)

Judgment S. H. S. Abidi, J. 1. Criminal Revision No.1056 of 1983 has been filed by Gaud Shanker Jha and others (first party) against Chinta Nath Jha and others (second party) against the order dated 5-10-1983 passed by Sri R. N. Shashtri, Executive Magistrate, Djgghar who refused to take action under section 188 of the Indian Penal Cods (for short I. P. C.) agaiast the 2nd party by taking aid of Sec.195 (1) (a) of the Code of Criminal Procedure (for short Cr. P. C.) for violation of the order of attachment under Section 146 (1) Cr. P. C. , by putting a Gumti on the attached land. Cr. Rev. No.906 of 1988 has been filed by the second party Chitanath Jha against the first party Gauri Shankar and others, challenging the order passed by the Judicial magistrate making observation that the complaint filed by the second party under Sec.447 I. P. C. against the first party Gaurishankar Jha and others on 12-8-1988 was not maintainable, as action under Sec.188 I. P. C. should have been taken by the Court and further the learned Magistiate by the same order has acquitted the accused persons of the charges under Section 447 I. P. C. Since the parties are common and the land in dispute is same, so both the revisions have been heard together and are being disposed of by this common judgment. 2. It appears that the parties in this case are brothers and nephew coming from a common stock. It is said that the joint property of the family had been partitioned in the Year 1968 between the first and second parties and the same was confirmed by judgment dated 31-3-1984 passed in Title Suit No.203/84 by the learned Subordinated Judge, Deoghar. 3. Aproceeding under Sec.145 Cr. P. G. was started by Gaurishanker jha and others In respect of a vacant piece of land, in which the second party elaimed to have their share. During the pendency of the proceeding under section 145 Cr. P. C. this disputed plot was attached under Sec.146 Cr. P. C. by order date 6-11-1982 and the parties were for bidden alter or change the nature of the disputed land by any construction. During the pendency of the proceeding under section 145 Cr. P. C. this disputed plot was attached under Sec.146 Cr. P. C. by order date 6-11-1982 and the parties were for bidden alter or change the nature of the disputed land by any construction. It is said tnat the second party violated the order of attachment by putting a gumti for seiling articles during the Shravani mela and when the first party tried to restrain, the second party became violent and wanted to assault the first party who restrained themselves. Then the first party tiled an application for action under Sec.195 (1) (a) Cr. P. C. for prosecution under Sec.188 I. P. C. against the second party but the Court below rejected the prayer of the first party on 5-10-1983 against which order the Cr. Rev. No.1056 of 1983 was filed and admitted on 3-1-1984. The lower court record was summoned, as appears from the order sheet dated 8-4-1984. The lower court record was received in the High Court. No interim order was passed by this Court. 4. Then the second party made an application to the learned Magistrate on 5-9-1974 saying that the first party was disobeying the attachment order of the court as the first party had started filling up earth over the passage and also started making illegal construction of small stair over the disputed land on 4-9-1984 and 5-9-1984 and inspite of the request they did not stop the same. Further an application was also filed on 15-9-1984 for filing a complaint against the first party under Sec.447 I. P. C, On 12-11-1984 the learned Magistrate heard the parties and said that in view of the stay order of the High Court (though there was no stay order Cr. Rev. No.1056/83 and only record had been summoned by the High Court, he (the magistrate) could not take any action into the matter against the first party, and so he directed the second party to take suitable legal action. The second party, therefore, filed a complaint under Sec.447 1. P. C. on 19-12-1984 against the first party and others. On tne same day, the learned magistrate took cognizance of the offence under Sec.447 I. P. C. against the 1st party. Then the proceedings started. On 17-2-1986 the gist of the charge under Sec.447 was read over in Hindi to the accused nos.1 to 3. P. C. on 19-12-1984 against the first party and others. On tne same day, the learned magistrate took cognizance of the offence under Sec.447 I. P. C. against the 1st party. Then the proceedings started. On 17-2-1986 the gist of the charge under Sec.447 was read over in Hindi to the accused nos.1 to 3. The complainant in support of his case examined five witnesses. Certified copy of the application dated 5-9-1983 in case No.69/81 and also application dated 45-9-1984, copy of the order dated 6-11-1982,12-11-1982 and judgment dated 3-11-1982 in Appeal No.482/84/84/62/85 and carbon copy of the notice under Sec.144 Cr. P. C. dated 18-7-1981 were filed. The accused in defence examined two witnesses, besides filing copies of the orders dated 15-9-1981 in Case No.447/81, and certified copy of ths order sheets dated 15-10-1982 to 6-11-1982 in Case No 69/82 The Court after considaring the question aid the contentions of the parties and the casses referred to, came to the conclusion that case under Saction 447 I. P. G was not maintainable as it was of proceeding under Sec.188 Cr. P. C. and so acquitted the accused under Sec.447 I. P. C. and discharged them of the liability of bailbonds. Against this order dated 12-9-1983 this Cr, Rev.9j6/88 has been filed by the second party. 5. Learned counsel for the petitioners (socond party) has urged that the learned Magistrate has erred in holding that the complaint under Section 447 I. P, C. was not maintainable. Further it was said that court has erred in passing the order of acquittal of the first part as the case has not been decided on merits and there was no question of acquittal. Oa the other hand, the learned counsel for the first party urged that this criminal revision itself is not maintainable as it is an order of acquittal aad against it an appeal should have bsen filed and if at all it is allowed to be converted into an appeal it will ba basred by limitation. Further it was urgsd that the complaint under Sec.457 L P. C is, to circumvent the provision of law as the complaint was filed by the caurt itself for violation of its order of attachment and so revision is liable to ba dismissed. 6. First of all, the plea of non-maintainability of the Cr Revision (No.906/88.) may be considered. Further it was urgsd that the complaint under Sec.457 L P. C is, to circumvent the provision of law as the complaint was filed by the caurt itself for violation of its order of attachment and so revision is liable to ba dismissed. 6. First of all, the plea of non-maintainability of the Cr Revision (No.906/88.) may be considered. The impugned order dated 12-9-1984 in paragraph 12 says that (he complaint is dismissed as not maintainable aad that the accused are acquitted under Sec.447 1. P. C. and they are discharged from the liability of bonds. So apparently it looks that ilia order of acquittal has been passed. Sec.195 (1) (a) of Cr P. C. says that no court shall take cognizance of aoy offence punishable undw Sec.172-188 (both inclusive)of the Indian Penal Code or of any abetment of or attempt to commit such offence or of any criminal conspiracy to commit such offences, except oa the complaint in writing of the public servaat concerned or of some other public servant to whom he is administratively subordinate. Sec.140 Cr. P. C, deals with the procedure in cases mentioned in section 195 (I) (b) and (c) aad not 195 (1) (a ). Sec.341 Gr. P. G. refers to ths provision of appaal against aa ordar under Sec.340 of the Code. So under Sec.340 aa appeal is filed and a revision is not maintainable Sec.397 Or. P. C. deals about tha powers of revision of the High Court aad Sessions Judge to call for and examine the record of any proceeding before any infering criminal court within its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. Section 401 of Cr. P. C. deals with High Courts power of revision to the effect that in the case of any proceeding the record of which has been called tor by itself or which otherwise comes to its knowledge, the High Court may in us discretion exercise any of the powers conferred on a court of Appaal by sections 386, 389, 390 and 391 of the coda of criminal procedure or on a court of Sessions by Sections 307 Cr. P. C. Sub-section (4) of this section 401 Cr. P. C. Sub-section (4) of this section 401 Cr. P. C. says that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Sub-section (5) says that where under this Code an appeal lies, but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High court may treat the application for revision as a petition of appeal and deal with the same accordingly. The Sec.378 Cr. P. C. deals about the appeals against acquittal by the State as well as the complainant. Sub-section (4) of this Sec.378 says that if an order is passed in any case instituted upon a complaint and the High Court on an application made by the complainant in this behalf grants special leave from the order of acquittal, the complainant may prefer such appeal to the High Court. Thus no revision lies against an acquittal and, if an appeal has not been filed but a revision preferred, then the High Court may treat the petition of revision as an appeal and deal with the same accordingly as provided under Sec.401 Cr. P. C. But In the case of Ramgopal Ganpatrai Ruia and another V/s. State of Bombay, air 1958 S. C. V7 the Supreme Court dealing with the scope of Sec.439 now 401 has said at pages 103-104 para 15 : "in other words the argument is that only that order is revisable under section 439 which is appealable under the Code. This argument has only to be rejected in view of the wide terms in which 439 has been worded. Sec.439 has to be read along with Sec.435 so far the present controversy is concerned. Sec.435 specially authorised the High Court besides other courts mentioned therein to call for and examine the record of any proceeding before any inferior Criminal Court. This argument has only to be rejected in view of the wide terms in which 439 has been worded. Sec.439 has to be read along with Sec.435 so far the present controversy is concerned. Sec.435 specially authorised the High Court besides other courts mentioned therein to call for and examine the record of any proceeding before any inferior Criminal Court. It has not been, and it cannot be contended that a Presidency Magistrate is not such an inferior criminal Court, If the High Court is empowered to call for the records of any proceeding before a Presidency Magistrate, it follows that it may examine the correctness, legality or propriety of any order passed by him and if it teds that the order is not correct or illegal or improper, it may, acting under Sec.439, exercise any of the powers conferred on a Court of Appeal by ssction 423. . . . . . . . Sec.439 only authorises the High Court in revision to exercise any of the powers conferred under Section 423. It does not further make reference to the case in which such powers have to be exercised. The latter question does not arise because Sec.439 itself makes the sweeping provision that in the case of any proceeding, the High Court may exercise the powers enumerated under Sec.423. We have, therefore, to look into Sec.423 to find out not the cases in which the High court can interfere but only the nature of the power that it can exercise in a case, in its revisional jurisdiction, that is to say, we have to incorporate only the several powers contained in Section 423 into Sec.439 except to convert a finding of acquittal into one of conviction," In the cate of Akloo Ahir and oths V/s. Ramdeo Ram, AIR 19 ?3 SC 2145 at page 2147 (para 8) their Lordships have been pleased to observe : "it is further provided in Sec.439 (i), Cr. P. C. that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again, on revision, the High court is expressly prohibited from converting an acquittal into a conviction. The State government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again, on revision, the High court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a piivate party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice, It is not expected to act uader Sec.435/439, Cr. P. C. as if it is a bearing on appeal inspite of the wide language under Sec.435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that Sec.439 it can exercise inter alia the power conferred on a court of appeal under Sec.423 Cr. P. C, The power being discretionary, it has to be exercised judicially and not arbitrarily," In the case of Satyendra Nath Dutta and another V/s. Ram Narain, AIR 1975 SC 580 their Lordships have been pleased to deal with the revisional power of the High Court (in paragraph 3 at page 580) : "section 439 (1) of the Code which deals with the revisional powers of the High Court provides that in the exercise of the revisional jurisdiction the High Court may exercise any of the powers conferred on a court of appeal. As the Court of appeal is entitled under Sec.423 (1) (a) to reverse an order of acquittal. But sub-section (4) of Sec.439 provides expressly that nothing contained in section "shall be deemed to authorise a High Court to convert a finding of acquittal Into one of conviction. This provision has been judicially interpreted and it is necessary to refer to the decisions of this Court hearing on the construction thereof ;-In D. Stephens V/s. Nasibolla, 1951 SCR 284 : ( AIR 1951 SC 196 : 52 cri LJ 510) It was held by this Court that the revisional jurisdiction conferred by Sec.439 of the Code ought not to be exercised lightly when it is invoked by a private complainant against an order of acquittal which could have been appealed against by the Government under Sec.417. " ft could be exercked only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. in other words, the tevisional jurisdiction of the High Court cannot be invoked merely because the lower Court has taken a wrong view of the law or misapprociated the evidence on record. In logendranath Jha, Polailal, 1951 SCR 676 : (Alk 1951 SC 316 : 52 Cri. LJ 1248) the High Court, at the instance of a private complainant, set aside the order of acquittal passed by the Sessions court and directed that the accused be retried. This Court held that the provision contained in Sec.439 (4) of the Code cannot be construed to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could, in the absence of any error oss a point of law, reappraise the evidence and reverse the findings of tacts provided only it stops short of finding the accused guitty and passing sentence on him. The order of retrial based on a reappraisal of evidence was characterised by this Court as a formal compliance with the requirement of Sec.439 (4 ). In K. Chinnaswamy Reddy V/s. State of Andhra Pradesh, 1963 3 SCR 412 : ( AIR 1962 SC 1788 -1963 (1) CRI LJ 8) the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure of a manifest error on a point of law resulting in a flagrant miscarriage of justice observed that it was not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies, The Court, however, indicated in order to illustrate, a few of the cases in which the revisional jurisdiction could properly be used. An acquittal by a Court lacking jurisdiction or excluding evidence which was admissible or relying on inadmissible evidence or where material evidence has been over looked are some of the cases indicated by this court and justifying the exercise of revisional powers. In mahendra Pratap Singh V/s. Sarjug Singh, 1968 2 SCR 287 : ( AIR 1968 SC 707 : 1968 Cri. In mahendra Pratap Singh V/s. Sarjug Singh, 1968 2 SCR 287 : ( AIR 1968 SC 707 : 1968 Cri. LJ 863) where the High Court in exercise of its revisional power had, at the instance of a private party, directed retrial of the accused, this Court OB a review of the previous decision reaffirmed that the High Court was wrong in entering into minute details of evidence while examining the decision of the Sections Court under Sec.459 (4; of the Code. The last decision to which reference may be made in Khetradasi samal V/s. State of Orissa, 1970 1 SCA 8bu : ( AIR 1970 SC 272 : 1970 Cri, LJ 869) The High Court while exercising its sevisional jurisdiction had set aiide the order of acquittal on the ground that the Magistrate should not have disbelieved the three eye witnesses. The High Court sought Justification for the course it adopted by observing that the Magistrate had not taken the trouble of shifting the gtain from the chaff. The order of the high Court was set aside by this Court. " In the case of Bansi Lal and others V/s. Laxman Singh, AIR 1986 SC 1721 the Supreme Court observed at page 1723 para 9 : "the revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation cf fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. " Their Lordships have referred to the decision in the case of K. Chinnaswamy reddy V/s. State of Andhrapradesh, (1962 SC 1788) in the case of satyendra Nath Dutta (supra) which has referred to two decisions in D. Stephens V/s. Nasibolla, AIR 1951 SC 196 and Logendranath Jha y. Polailal ( AIR 1951 SC 316 ) and have said in K. Chinnaswamy Reddy decisions that these two cases clearly lay down limits of the High Courts jurisdiction in an order of acquittal in revision. Their Lordships quoted with approval the observations in the case of Akloo Ahir and oths V/s. Ramdeo Ahir, (supra) at page 2147 (para 8) and said that the same position has been reiterated by the Supreme court in Satyendra Nath Dutta V/s. Ram Narain (supra ). The Supreme Court in the case of Sahab Singh and oths V/s. State of Haryana, AIR 1990 SC 1188 observed at page 1189 (para 4) : "it is clear from a conjoint reading of Sections 377, 386, 397 and 401 that it the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under Sec.377 (1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Sec.397 read with Sec.401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub-section (4) of Sec.401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub-section cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. " a Full Bench of this Court in the case of Rama Nand Chowdhary V/s. S. D. Pandey and another, 1991 (1) PJR 171 : 1991 (1) BLJ 436 (FB) has referred to the decisions Sahab Singh at page 177 (para 12) and said at page 182 (paras 25 and 26) : "the object of this revisional legisiation under Sec.397 of the code is to confer upon Superior Criminal Courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order or on the other hand in some underserved hardship to individuals. The Courts enumerated in section 397 have power to call for the records of subordinate courts for the purpose of satisfying themselves as to the correctness, legality or propriety of the orders passed by the lower courts. The object of the legislation in this section is to set right some patent defect or error. The Courts enumerated in section 397 have power to call for the records of subordinate courts for the purpose of satisfying themselves as to the correctness, legality or propriety of the orders passed by the lower courts. The object of the legislation in this section is to set right some patent defect or error. (26) Sec.401 deals with the high Courts power of revision. The High Court possesses a general power of supertntendance over the actions of Courts subordinate to it. On its administrative side, the power is known as the power of Superintendance. On the judicial side, it is known as the duty of revision. The High Court can, at any stage, of its own motion, if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them. The revisional jurisdiction cf the High Court is discretionary. The section confers no right on a person convicted either by the trial court or a lower appellate court to invoke the revisional jurisdiction of the High Court. The exercise of that jurisdiction is subject to the limitations imposed by the section, that is to say, it is purely discretionary ". . . . . . Thus it is made out from these decisions that in cases in which an appeal is to be filed by the complainant, but it has not been filed, then no revision by such party shall be accepted and High Court should refrain from interfering with the order of acquittal, except where there is a glaring defect of such a nature which has resulted in failure of justice or there is manifest error of law, resulting in serious miscarriage ot justice or glaring case of injustice resulting from some violation of fundamental principle of law or where the public justice requires interference for the correction of a manifest illegality or prevention of gross miscarriage of justice. The power can be exercised in cases where there is glaring defect in procedure or manifest error on a point of law resulting in miscarriage of justice, or the acquittal is by the court lacking jurisdiction or by excluding admissible evidence or relying upon inadmissible evidence. Such revisional power should not be exercised when the acquitting court has taken a wrong view of law or misappreciated the evidence. Such revisional power should not be exercised when the acquitting court has taken a wrong view of law or misappreciated the evidence. Such discriminating revisional power should be exercised in exceptional cases, judicially and with Circumspection and great care and caution. It cannot be said that if an appeal has not been preferred, then a revision is not maintainable at all, even if there is error of law going to the root of jurisdiction, reliance on inadmissible evidence or rejection of admissible evidence, lack of jurisdiction, or erroneous view that it had no jurisdiction, defect of procedure, serious and glaring miscarriage of justice, or violation of the fundamental principles of law. 7. Learned counsel for the petitioner has urged that the order of acquittal could not have been passed by the learned Magistrate as he himself was of the view that he had got no jurisdiction to try the same ; rather he should have dropped the proceedings. These contentions can be better appreciated in the light of observation of the Apex Court in some of its decisions. In the case of Nagraj V/s. State of Mysore, AIR 1964 SC 269 supreme Court observed at page 275 para 18 : ". . . If the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the government, what should be the procedure to be followed by it i. e. , whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The high Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of section 132 of the Code than he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If Sec.132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected. " The Supreme Court in the case of Mohammad Safi V/s. The State of West bengal, AIR 1966 SC 69 has dealt with this aspect of the matter at pages 71 to 73 in paragraphs 5, 6, 7 and 8 : (5) ". . . Under the Code of Criminal Procedure a Court can take cognizanace of an offence only if the conditions requisite or initiation of proceedings before it as set out in Para 8 of Chapter xv are fulfilled. If they are not fulfilled the Court does not obtain jurisdiction to try the offence. In the case before us Mr. Ganguly took the view, though erroneously, that as one of the conditions requisite for taking congnizance 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 trail upon the fact and for the same offence. . . " (6) It is true that Mr. Ganguly could properly take cognizance of the offence and, therefore, the proceedings bsfore him were in fact not vitiated by reason of lack of jurisdiction. But we cannot close our eyes to the fact that Mr. . . " (6) It is true that Mr. Ganguly could properly take cognizance of the offence and, therefore, the proceedings bsfore him were in fact not vitiated by reason of lack of jurisdiction. But we cannot close our eyes to the fact that Mr. Ganguly was himself of the opinion and indeed he had no option in the matter because he was bound by the decisions of the High Court that be could not take cognizance of the offence and consequently was incompetent to try the appellant where a court comes to such a conclusion albeit erroneously, it is difficult to appreciate how that Court can absolve the person arrainged 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 placed 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 though 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. In this connection we might profitably refer to the decision in yusofalli Mulla Noarbhoy V/s. The Kind, 77 INd App 158 ; (AIR 1949 PC 264 ). That was a case where there was no valid sanction as required by Clause 14 of the Hoarding and Profiteering Prevention ordinance, 1943 for the prosecution of the appellant therein on separate charges of Hoarding and Profiteering. ". . . . . . . . . The Privy Council accepted the view of the Federal Court in basdeo Agarwalla V/s. Kind Emperor, 1949 FCR 93 (AIR 1945 FC 16), that the prosecution launched without valid sanction is invalid and held that under the common law a plea of autrefois acquit or convict can only be raised where the first trial was before a Court competent to pass a valid order of acquittal or conviction. Unless the earlier trial was a lawful one which might have resulted in a conviction, the accused was never in jeopardy. Unless the earlier trial was a lawful one which might have resulted in a conviction, the accused was never in jeopardy. The principle upon which the decision of the Privy council is based must apply equally to case like the present in which the Court which made the order of acquittal was itself of the opinion that it has no jurisdiction to proceed with the case and, therefore, tag deceased was not in jeopardy. (7) As regards the second contention of Mr. Mukherjee it is necessary to point out that Criminal Court is precluded from determining the case before it in which a charge has been framed otherwise than by making an order of acquittal or conviction oly where the charge was framed by a Court competent to frame it by a Court competent to try the case and make a valid order of acquittal or conviction. . . . (8 ). . . . . . . . . From what we have said above, it will be clear that the fact that all the witnesses for the prosecution as well as for the defence had been examined before Mr. Ganguly and the further fact that the appellant was also examine 1 uader Sec.342 cannot in law be deemed to be a trial at all. It would be only repetition to say that for proceedings to amount to ,a trial they must be held before a Court which is la 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, In the Privy Council case it was interpreted by Sir John Beaumont who delivered. It is unnecessary for us to say whether sash aa order amount (sio) a si order of discharge in the absence of any express provision governing the matter in the Code or it does not amount to an order of dissharge. It is sufficient to say that it does not amount to aa order of acquittal as contemplated by Sec.430 (1) and since the proceedings before the Special Judge ended with that order it would be enough to look upon it merely as an order putting a stop to the proceeding. It is sufficient to say that it does not amount to aa order of acquittal as contemplated by Sec.430 (1) and since the proceedings before the Special Judge ended with that order it would be enough to look upon it merely as an order putting a stop to the proceeding. " in the case of Ratilal Bhanji Mithani V/s. State of Maharashtra and others ( AIR 1979 SC 94 ) the Supreme Court obssrved at page 100 in paras 26/a, 26/b, 27, 31 and 32 : "26-A, Once a charge is framed, fee Magistrate has no power under section 227 or aay other provision of the Code to cancel the charge, and is verse the proceedings to the stage of Sec.233 and discharge the accused, The tidal in a warrant case starts with the framing of charge ; prior it the proceedings are only an enquiry. After the framing of charge it the accused pleads not guilty, the Magistrate is required to proceed with the triai in the manner provided in Sections 254 to 258 to logical end. Once a charge is framed in a warrant case, instituted eitner on complaint or a police report, tha Magistrate has no power under the Code to discharge the accused, and thereafter he can either acquit or convict the accused unless he decides to proceed under Sections 349 and 562 of the Code of 1892 (which correspond to Sections 325 and 360 of the Code of 1973 ). 268. Excepting where the prosecution must fait for want of sanction, an order ot acquittal must be made upon a finding of not guilty turning on the merits of the case and the appreciation of evidence at the conclusion of the triai. 27. If after framing charges the Magistrate whimsically, without appraising of the evidence and without permitting the prosecution to produce all its evidence, discharges the accused, such an acquittal, without trial, even if clothed as discharge, will be illegal. . . . . . 31. It is thus manifest that in abruptly delecting the charges and discharging the accused, the Magistrate was acting neither in accordance with the observation or directions of Gokhale J. , nor in accordance with law. 32. . . . . . 31. It is thus manifest that in abruptly delecting the charges and discharging the accused, the Magistrate was acting neither in accordance with the observation or directions of Gokhale J. , nor in accordance with law. 32. Equally meritless, albeit igenious is the argument that since the magistrate had no Segal power to delete the charges, the order of discharge must be construed as an order of aquittal so that the high Court could not interfere with it in revision and dicrect a retrial. Assuming arguendo, the Magistrates order of discharge was an order of acquittal, then also, it does not alter the fact that this acquittal was manifestly illegal. It was not passed on merit, but without any trial, with consequence failure of justice. The High Court has undoubtedly the power to interfere with such a patently illegal order of acquittal in the exercise of its revisional jurisdiction under Sec.439, and direct a retrial. The high Courts order under appeal, directing the Magistrate to take denovo proceedings against the accused was not barred by the provisions of Sec.403, (of the Code of 1898), the earlier proceedings taken by the Magistrate being no trial at all and the order passed therein being neither a valid discharge of the accused, nor their acquittal as contemplated by Sec.405 (1 ). The magistrates order (to use the words of Mudholkar J. , in Mohd. Soft V/s. State of West Bengal, AIR 1966 SC 69 ) was merely "an order putting a stop to these proceedings" since the proceedings, ended with that order. " a learned single Judge in the case of Harnamahi Digwa V/s. Thacker Vaiji kunverji and others (1983 Cr Li 604) relying upon the aforesaid decision of nagraj V/s. State of Mysore and Ratilal Bhanji V/s. State of Maharashtra (supra)held at page 606 : "in the instant case also the learned Magistrate did not record any finding on the merits of the case. He merely came to the conclusion that the proceedings should be dropped because of want of valid sanction or consent which is the sine qua-non-under section 20 (1) of the Prevention of Food Adulteration Act. He merely came to the conclusion that the proceedings should be dropped because of want of valid sanction or consent which is the sine qua-non-under section 20 (1) of the Prevention of Food Adulteration Act. therefore did not record any finding on merits and, therefore, could not have acqitted or convicted the accused under Section 248 of the Code, The learned Sessions Judge was, therefore, wrong in coming to the conclusion that the order passed by the learned Trial Magistrate tantamounts to an order ot acquittal, it is on this premise that he dismissed the Revision Application as not maintainable. The premise being erroneous, the order of the learned Sessions Judge cannot be allowed to stand. " 8. Thus from all this it is clear that once when a charge has been framed, the magistrate has no power to counsel the charge and discharge the accused. After the charge has been framed and if the accused entered into a plea of not guilty the Magistrate should proceed with the trial and after taking the evidence by the parties should either acquit or convict the accused, An acquittal or conviction must be on merits after consideration of the evidenced by the prosecution and defence. Acquittal can be on merits as well as on technical grounds also, but acquittal on merits is only after the consideration of evidence led by the parties. A court which is competent to initiate a proceedings or to carry on the proceedings can make an order of acquittal whose effect would be that the subsequent prosecution would be barred. At times it appears that when the cognizance has been taken and the defect of want of jurisdiction or absence of sanction crops up, then the court should not proceed with the trial. If witnesses have been produced by both sides when a court has no jurisdiction or there is inherent want of sanction, the prosecution becomes bad, illegal and without jurisdiction. In such a situation, the court has to dismiss the complaint and not to proceed with the same. If the charge has been framed then the order of discharge cannot be passed on account of the inherent defects. Similarly, the order of acquittal also cannot be passed because the case is not based on merits but on technical defects. In such a situation, the court has to dismiss the complaint and not to proceed with the same. If the charge has been framed then the order of discharge cannot be passed on account of the inherent defects. Similarly, the order of acquittal also cannot be passed because the case is not based on merits but on technical defects. All proceedings are to be dropped or complaint has to be dismissed but definitely no or order of acquittal or discharge can be passed If such an order of acquittal or discharge is passed without consideration of the material evidence on the charges, then it is not acquittal an order of acquittal has the effect of barring a subsequent trial upon the same facts and for the same offences. A proceeding to become a trial must be held before a court which is competent to hold the same and should be able to pass an order of acquittal or conviction. A court which is itself of the opinion that it has got no jurisdiction to entertain complaint or that the complaint suffers from the vice of sanction cannot pass an order of conviction or acquittal and that too without consideration of the evidence on merits as to the guilt or otherwise of the accused. An order of eonvlction or acquittal on the erroneous conclusion of lack of jurisdiction and without consideration of evidence on merit, is a nullity and does not bar a subsequent trial as the acquittals are to be made on consideration of the evidence An order of acquirtal purporting to be under Sec.248 Cr. P, C, after the charge has been framed even in the absence of complaint, has been held to be illegal. Similarly recording of an order of acquittal without recording finding of a charge is also bad. Such order of acquittal with fack of jurisdiction or even with erroneous belief of lack of jurisdiction and further without consideration of the evidence on merits, is nothing but a gross miscarriage of justice, failure of justice, manifest error of law and violation of the fundamentals of law and so revisional Court gets jurisdiction to interfere and its power of interference. In the instant case, no doubt the order of acquittal has been passed but the Court has said that the applil cation under Sec.447 was not maintainable. In the instant case, no doubt the order of acquittal has been passed but the Court has said that the applil cation under Sec.447 was not maintainable. When the application under section 447 was itself not maintainable thea the court should have dismissed the same outsight and there could be no order of acquittal or discharge the court inspite of holding that the complaint was not maintainable and that it had no jurisdiction to entertain, yet passed the order of acquittal causing grave miscarriage of justice and abuse of process of law, and flagrant disregard and violation of the fundamentals of law. This order cannot be and is not an order of auquittal. So even it the appeal against acquittal has not been filed, this Court can entertain the revision under Sec.401 of the Code and pass suitable orders in accordance with law in such exceptional circumstances. As such an order can be looked into by Court in its revisional jurisdiction and simply because the word acquittal has been used the aggrieved person cannot be driven to move the higher Court as an appeal against acquittal. 9 Now the question to be considered is as to whether this complaint by the second party under Sec.447 I. P. C. was maintainable when the order of attachment had been passed and when the court had earlier been moved by the second party to start a proceeding against the first party for violation of the order of attachment and upon that the learned magistrate had himself ordered that there was an order of stay by the High Court (though actually there was no stay and only record has been called for)Section 195 (l) (a) Cr. P. C. says that no court shall take cognizance of any ollence punishable under Sections 172 to 188 I. P. C. or abetment or attempt to commit such an offence or any criminal canspiracy to commit such offence except on complaint in writing of the public servant concerned or some other public servant whom he may ba administratively subordinate the purpose of such an embargo on a complaint by a private person to move court for violation of the order is to prevent improper or reckless prosecution by private persons for offence in connection with the administration of public justice and it aims at to give protection against vexatious or frivolous prosecutions The Supreme Court in the case of Patel Laljibhai Somabhai V/s. the State of Gujarat, AIR 1971 SG 1935 has observed while dealing with the offence under Sec.195 (1) (b) and (c)of the Code at page 1939 para 7 : "the underlying purpose of enacting Sec.195 (1) (b) and (c) and section 476 seems to be control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revenge fui desire to havass or spite their opponents. . . . " Further it was observed at page :943 (in paia (10): -. . . The purpose and object of the Legislature in creating the bar against congnizance of private complaints m regard to the offences mentioned in Sec.195 (1) (b) and (c) is both to save the accused persons from vexatious or baseless prosecutions inspired by feelings of the vindictiveness on the part of the private complainants" to harass their opponents. . . This purpose and object of such legislation may equally apply to the provisions contained under Sec.195 (1) (a) Cr. P. C. 10. Section 195 has created embargo upon prosecutions by private complainants or parties only in respect of tne offence committed under section 172 to 168 I. P. C. both inclusive of the Indian Penal Code or about any abetment or attempt to commit any such offence or any criminal conspiracy to commit such offences. P. C. 10. Section 195 has created embargo upon prosecutions by private complainants or parties only in respect of tne offence committed under section 172 to 168 I. P. C. both inclusive of the Indian Penal Code or about any abetment or attempt to commit any such offence or any criminal conspiracy to commit such offences. Thus the prosecution for offence committed under sections other than Sections 172 to 188 if made out from the same facts is not to be started on the basis of the complaint of the public servant In the case of Dhirmdra Nath Bora V/s. Nurul Hoda and others AIR 38 1951 calcutta 133 a Full Bench of the Calcutta High Court observed at page 136 "in my judgment the Special Bench decision in Satish Chandra V/s. Ramdayal De-24 CVN 982 : 1921 Calcutta-1 correctly states law on the subject. Sections 198 to 195, Cr P C deal with the requisites for the prosecution of certain specified offences and it appears to me that the provisions of those sections must be limited to prosecutions for the offence actually indict if it was the intention of the legislature to make sanctions or" complaints a certain form necessary far the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in Sections 195 to 199 Criminal p. C. the legislature could have said so. But it did not It only made complaints m particular form or previous sanction necessary for the prosecution of particular offences and it appears to me that to hold that these sections of the Criminal p. C. apply to all prosecutions based on certain facts is clearly erroneous. As pointed out by Sir, Asutosh Mukerjee A. C. J in the Special Bench case to which I have made a reference, it is the duty of the Court to canstrue these sections and to construe them according to the language used. It is not for a Court to speculate as to what the legislature should or might have said. Regard can only be had to what, the legislature has said. It is not for a Court to speculate as to what the legislature should or might have said. Regard can only be had to what, the legislature has said. " The Supreme Court in the case of Basirul Hague and others V/s. State of bengal, AIR 1953 SC 293 referred to this Full Bench decision with approval at 294 pare 6 and observed as under : "the Full Bench answered the question referred in the negative. In respsct of the conviction Sec.297 I. P. C. the learned Judges said that there was nothing in Sections 195 to 199 Cr. P. C. which could in any way bar the prosecution of the appellants uader that section, as it could ia no way be said that it arose out of the facts which would constitute an offence under Section 182 or Sec.211, Penal Code. On the other hand, it arose from an entirely different set of facts, namely the trespass by the opposite parties in the burial ground and the removal of the corpose from the lighted funeral pier. " Then further observed at same page (in para 9) : "the statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under section 182 can be taken cognizance of. It does not further provide that if in the course of commission of that offence other distinct offences are committed, the magistrate is debarred from taking cognizance in respect of those offences as well The allegation made in complaint may have a double aspect, that is, on the one hand these may constitute an offence against the uuthority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. " Further at page 296 (para 14) Supreme Court held ; "though, in our judgment. Sec.195 does not bar the trial of an accused person for a distinct offence disclosed by the same fact and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting 10 devices or camouflages. Sec.195 does not bar the trial of an accused person for a distinct offence disclosed by the same fact and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting 10 devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words the provisioas of section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other sections of the indian Penal Code, though in truth substance the offence falls in the category of sections mentioned m Sec.195 Cr. P. C. Merely by changing the garb of label of an offence which is essentially an offences covered by the provisions of Sec.195 prosecution tiir such an offence cannot be taken cognizince of by misbescribing it or by putting a wrong label on it. In the case of Gokhul Singh V/s. Jagdish Singh and others, (1963 BLJIR 211)a learned single Judge of this Court (at pege 213) after referring to Full Bench decision of Calcutta High Court and that of the Supreme Court, observed at page 213 (paras 5 and 6) : 5. "a party who may have been in possession before an order of attachment, is deprived of possession in any case ; however, I do not see why dishonest removal of crops from disputed lands cannot amount to theft When there is an order under Sec.144, prohibiting parties from going upon the disputed lands, and a person dishonestly cuts and removes crops from that land, he dishonestly takes the crops out of possession of the party who may be held to have been in possession and to have grown the crops before the order under Sec.144 was passed. When an order of attachment under Sec.145 (4) is in force, the person who dishonestly removes crops from the land in question, takes it out of tha possession of the Court. When an order of attachment under Sec.145 (4) is in force, the person who dishonestly removes crops from the land in question, takes it out of tha possession of the Court. Apart from other offences which may, in different circumstances, be held to have been committed, the party removing the crops may certainly be convicted, of theft. " 6. "it is perfectly rrue, as Mr. Chakervarty had argued, that before a Court takes cognizance of an offence under Sec.188, there must be a complaint by the public servant under Sec.195 (1) (a) of Code of Criminal Procedure. I find it impossible to agree with his argument, however, that it a person commits an offence under Sec.188, he cannot be put upon his trial for any other offence which he commits unless and until the public servant files a complaint. Taking the present case as an instance, the question whether the petitioner and Sheo Prasad Singh were in ppwesbion of the disputed plot on the alleged date of occurrence and whether they are one of them bad grown the crops has undoubtedly to be enquired into. If the findings on these points are in their favour and if it is further held that the opposite parties dishonestly removed the crops without their consent on the January, 1962, there seems to be no difficulty in holding the opposite party to be guilty of the offence of theft. Opposite party Jagdish Singh and Gobind Singh, who were directed by the order under Sec.144 not to go upon the disputed lands, committed an offence under Sec.188 as soon as they went upon those lauds. If they removed the crops dishonestly, though they were grown by the petitioners on own behalf or on behalf of Sheo prasad Smgh, an Additional Offence which they committed was the offence of theft. If they removed the crops dishonestly, though they were grown by the petitioners on own behalf or on behalf of Sheo prasad Smgh, an Additional Offence which they committed was the offence of theft. " a learned single Judge of Calcutta High Court in Kashi Nath Pathak and another V/s. Kitu Rajwar and others (AIR 1964 Calcutta 4j6) while referring to the decision of Basir-ul-Haqu V/s. State of West Bengal (supra) at page 437 (para 6; said to "the Supreme Court has not said that in the course of the same transaction several offences are committed and in respect of same of the offences no cognizance can be taken as provided for Section 195 (1) of the Code, there can be no prosecution for the other offences also except as provided for in Sec.195 (1) of the code. The Supreme Court has on the other hand held that Section 195 ( () does not bar the trial of an accused for a distinct offence disclosed by the same facts and which is not included within the ambit of that section. What the Supreme Court has said is t; at the provisions of Sec.195 (1) cannot be evaded by resorting to devices or camouflages. The Supreme Court has laid down a test also, The test is whether the facts disclosed primarily and essentially an offence for which complaint of the court or of the public servant is required. Hence the petitioners allegation was that they were in actual possession of the land the opposite parties formed an unlawful assembly armed with lathis, swords and axes and trespassed into the land. It is true that the allegations prima facie made out an offence under Sec.188 of tae code also but it could not be said that the facts disclosed (sic)primarily and essentially an offence under Sec.188 of the Indian penal Code or that the prosecution under Sections 143, 144 and 144/114 of the Indian Penal Code and for the matter of that fact under Sec.447 of the 1. P. C. was a device or camouflage to evade the provision of Sec.195 of the Code. The decision of the learned Sessions Judge that the prosecution under Sections 143, 144 and 144/114 1. P. C, is barred in law in view of the provision of Sec.193 (i) (a) of the Code cannot, therefore, be sustained and is set aside," 11. P. C. was a device or camouflage to evade the provision of Sec.195 of the Code. The decision of the learned Sessions Judge that the prosecution under Sections 143, 144 and 144/114 1. P. C, is barred in law in view of the provision of Sec.193 (i) (a) of the Code cannot, therefore, be sustained and is set aside," 11. But in the case of (AIR 1970 Patna 102) a learned single Judge of this Court relying upon the decision in the case of Usman Mistry V/s. Atul Krishna Ghose air 1949 Calcutta 132 which has, been overruled by the full Bench in 1951 calcutta 133 look a contrary view without referring to and also contrary to the decision in Gokul Chandra V/s. Jagdish Singh (supra) and held at page 103 : "when a particular party is restrained from enjoying the possession of the land, he must be taken to be out of possession for that period. . . . . . at the time of alleging cutting of the paddy, therefore, it cannot be said that it was the possession of the opposite parties ar. d offence of theft cannot be committed unless the property is moved out of possession of a person. On this ground also the charge of theft would not be maintainable. " 12. However, in the case of Bhagwan Das and others V/s. S. D. O. Gaya and others ( 1976 BBCJ 172 ) a learned single Judge of this Court after referring to the aforesaid decisions of the Calcutta High Court and of this Court and also of Supreme Court concurred with the view taken in Jagdish Singhs case (supra) and did not agree with the view taken in Mahendra Prasad Singh (supra) for the reason that the earlier decision of Gokul Singh had not been brought to the notice of the Court and reference had been made to the calcutta decisions. He has held at page 175 (Para 8 that during the prohibitory order being in force if an offence under Sec.379 I. P. C. has been committed by removal of the crop then prosecution under Sec.379 I. P. C. is maintainable. He has held at page 175 (Para 8 that during the prohibitory order being in force if an offence under Sec.379 I. P. C. has been committed by removal of the crop then prosecution under Sec.379 I. P. C. is maintainable. But in the case of Saladi Chandra Rao V/s. Gollakoti Sambayya (1918 cri LJ 1378) a learned single Judgs of Aadhra Pradesh High Court Scourt after referring to tae decision of the Supreme Court in Basir-ul-Haq (supra)has said that in the complaint under Sections 188, 447, 506, 323 and 379 i. P. C. brought in that case offence under Sections 188 and 447 I. P. C, could not be tried except upon a complaint by the Magistrate who had pasted an order under Section j 45 Cr. P. C. or superior as the act of trespass under section 447 I. P. C. itself constituted disobedience of the order under Section 145 Cr P. C. and so an offence falling under Ssction 188 I. P. C. In the case of State V/s. Nurul Hasan and others V/s. State of Jammu (1981 cri LJ NOG 68) a Division Bench of Kashmir High Court relying upon the said learned single Judge decision of Andhra Pradesh High Court held that the land was custodia legis out of the order of attachment trespass committed constituting disobedience of the order set it amounted to offence under Section 188 and not 447 I. P. C. and as such chargesheet by the police not competent and a complaint in writing by the Magistrate was necessary. But the Suprume Court in the case of Durga Charan Naik and others V/s. State of Orissa ( AIR 1966 SC 1775 ), where the prosecution was under Section 333, observed at 178 and 179 in paragraphs 5, 6 and 8 : "5. It is well established that Sec.195 of the Cr. P. C. does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. . . . . . . . . 6. In the present case we are of the opinion that Sec.195 Cr. P. C. does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. . . . . . . . . 6. In the present case we are of the opinion that Sec.195 Cr. P. C. does not bar the trial of the appellant for the distinct offence under Sec.353 of the I P. C. though it is practically based on the same facts as for the prosecution under Sec.186 I. P. C. 8. We have expressed the view that Sec.195 Cr. P. C. does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of fact and which is not included within the ambit of the section, but we must point out that the provisions of Sec.195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the I. P. C , though in truth and substance the offence fails in the category of sections mentioned in Sec.195 Cr. P. C. Merely by changing the garb of label of an offence which is essentially an offence covered by the provisions of Sec.195 prosecution for such an offence cannot be taken cogaizance of by misdescribing it or by putting a wrong label on it. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under Section 353 1. P. C. was by way of evasion of the requirements of section 195 Cr. P. C. But we are satisfied that theie is no substance in this argument and there is no camouflage or evasion in the present case. " 13. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under Section 353 1. P. C. was by way of evasion of the requirements of section 195 Cr. P. C. But we are satisfied that theie is no substance in this argument and there is no camouflage or evasion in the present case. " 13. Thus from ail this it is clear that an aggrieved person can file a complaint under the other provisions of the Indian Penal Cede than those under Sections 172 to 188 both inclusive of I. P. C. for which a complaint by the authority concerned whose order has been flouted is to tile and for other offences there is no bar. But if upon said set of facts the offence includes under sections 111 to 198 both inclusive are there and also they are offences Punishable under other sections then prosecution for the other offences is not barred, but a complaint by a private party for other offence should not be by resorting to devices or camouflage or by adopting garb or label of offence which is essentially covered by the provisions of Sec.195 Cr. P. C On the said set of fact if the two offences one for which cognizance has been taken by the complainant can be definitely tried by the Magistrate without the complaint by the authority whose order has been violated. For every offence and though the facts of this case may disclose primarily and essentially an offence under Sec.188 anu also make out a case under Sec.447 I. P. C. which cannot he said that the complaint under Sec.447 was a device to evade the provisions of Sec.195 Cr. P. C, AS such the complaint under section 447 I P. C. could not be held to be incompetent. 14. Learned counsel for the petitioner first party has drawn our attention to the fact that as the proceeding under Sec.145 had continued the learned Magistrate by order dated ii-9-lv85 has declared the possession of the first party over the land in dispute against which the second party had filed a Cr. Revision in the Court of the learned Sessions Judge and the same is pending. This order has not been brought on record. Further this is subsequent event which is not relevant for the purpose of this case 15. As regards Cr. Rev. Revision in the Court of the learned Sessions Judge and the same is pending. This order has not been brought on record. Further this is subsequent event which is not relevant for the purpose of this case 15. As regards Cr. Rev. No.1056/83 which had been filed against the order dated 5-10-1983 refusing to take action against the second party and asserting that the court below was not correct in going to the spot and holding that there was a gumti already in existence. It appears that after the attachment the first party complained that the second party wanted to keep a gumti for paan and so it was violation of the order of the court. After hearing the parties the court held that in the Written statemeat the second party has said that gumti was already in existence and there was nothing about charge of putting any gumti thereafter. The court further said that the order under Sec.188 was not duly promulgated as such there was no violation of attachment Here the learned counsel for the first party urged that this order has been on the basis of the statement of the counsel for the second party and that the court has made a local inspection and so the order is bad. But the fact remains that in the show cause under Sec.144 Cr. P. C. the second party has said that he was keeping the gumti which appears to be well established before the order of attachment had been passed. As such it cannot be said that the gumti had been kept after attachment. The court has itself said that there way no promulgation of the order of attachment at that point of time itself. 16. During the course of arguments, it was pointed out that in respect of the property in dispute a title suit No.203/70 was between Gauri Shanker Jha and others V/s. Chinta Nath Jha, and the same has been dismissed on 3i-3-i984. Judgment has been passed dismissing the claim of the plaintiff in that case, against which F. A. No.384/1984 is pending (Gauri Shanker Jha V/s. Chintanath jha) ia tnis Court, The record of the first appeal was summoned on the request of the learned counsel for the parties and the position has been ascertained. Judgment has been passed dismissing the claim of the plaintiff in that case, against which F. A. No.384/1984 is pending (Gauri Shanker Jha V/s. Chintanath jha) ia tnis Court, The record of the first appeal was summoned on the request of the learned counsel for the parties and the position has been ascertained. Thus it appears chat the Civil Court has already decided the matter between the parties and the same is to be acted upon in accordance with law. In the case of Ram Sundtr Puri Mahant V/s. State of U. P. , AIR 1985 SC 472 the Surpreme Court has observed : "there is no scope to doubt or dispute the position of the Civil Court is binding on the Criminal Court in a matter like the one before us. Counsel for respondent Nos.2, 5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue aad in the event of a decree of the Civil court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for an adequate protection of the property during the pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefor, satisfied that parallel proceeding should not continue and the order of the learned Magistrate should be quashed," Later on the Supreme Court in the case of Jhunenal Devan Das V/s. State of U. P. , (Cri. Appl.139/87) decided on August 25, 1988 (1988 BUR summary of the cases, 1981) at page 40 has said : "that there is no scope to doubt or dispute the position that the decree of this Civil Court is building on the Criminal, Court in a matter like the one before us. Appl.139/87) decided on August 25, 1988 (1988 BUR summary of the cases, 1981) at page 40 has said : "that there is no scope to doubt or dispute the position that the decree of this Civil Court is building on the Criminal, Court in a matter like the one before us. Counsel for respondent 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties pot should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. ". . . ,. An order made under section 14,5, Co P. C. deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the Civil Couns. The unsuccessful party, therefore, must get relief only in the Civil Court, He may move the Civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil court has jurisdiction to give a finding different from that which the Magistrate has reached. " 17. In view of these observations the proceedings for 145 or 146 should not have been there. Yet the proceedings continued and as appears from the order of the learned Magistrate dated 5-10-1983 (subject to challenge under cr, Rev. No, 1056/83) that the order of attachment was not daiy promulgated. " 17. In view of these observations the proceedings for 145 or 146 should not have been there. Yet the proceedings continued and as appears from the order of the learned Magistrate dated 5-10-1983 (subject to challenge under cr, Rev. No, 1056/83) that the order of attachment was not daiy promulgated. Further it also appears that on account of the said Cr, Rev.1056/83 record of the case had been called for and proceeding could not continue though there was no stay osder, yet the first party in violation of ths order appears to have put stairs and filled up earth for which the second party had approached the court and the court by its order dated 12-11-1984 has said that on account of the stay order proceeding could not be continued and so the complainant filed a complaint on 19-12-1984. In these circumstances it cannot be said that the complaint was a device to evade provision of Sec.193 (1) (a) Cr. P. C. Definitely Sec.447 I. P. C. , is not within the ambit of 195 (1) (a) of the code and the Court took cognizance of the offence but the Court after taking cognizance framed charge and took evidence of the parties. But strangely enough, at the end without looking to the merits of the case of the parties held that the complaint was not maintainable and passed order of acquittal. The magistrate while holding that it has no jurisdiction to entertain the complaint and was himself doubtful of his jurisdiction. After framing of the charge and taking of the evidence acquitted the accused first party without deciding the case on merits. Thus the order of acquittal was not warranted, he could neither acquit the accused nor could have discharged him. He ought to have dismissed the complaint as not maintainable. The order of acquittal in the facts and circumstances was putting a bar to the further prosecution of the first party, even if resort to Sec.105 (1) (a) could have been taken by the magistrate. Thus the of acquittal is illegal and nullity. As this order has been given a nomenclature of an order of acquittal the second party could also file revision. As such this revision is maintainable, and the impugned order of dated 12-9-1988 is being illegal is liable to be quashed, 18. In the result, the Cr. Thus the of acquittal is illegal and nullity. As this order has been given a nomenclature of an order of acquittal the second party could also file revision. As such this revision is maintainable, and the impugned order of dated 12-9-1988 is being illegal is liable to be quashed, 18. In the result, the Cr. Rev.906/88 is allowed and the impugned order dated 12-9-1988 is quashed. It will be for the court to consider the matter in accordance with law. Further the Cr. Rev.1056/82 against the order dated 5-10-1983 is also dismissed. Decided accordingly.