1. The applicant, Mahadeo Prasad, was convicted under Section 408 or in the alterative Section 408/109, I.P.C., by a Magistrate of the First Class and sentenced to nine months' rigorous imprisonment. The applicant appealed to the Sessions Judge, who set aside the conviction and sentence under Section 408 or Section 408/109 and directed that the applicant be committed to the Sessions to stand his trial for an offence under Section 477-A, I.P.C. The prosecution alleged against the applicant that he conspired with one Sita Ram to cheat the Benares State in which they were both employed. According to the prosecution evidence, money was, collected by the, applicant and by Sita Ram from tenants of the estate and a portion thereof was misappropriated by them. It appears that receipts for the full amount collected from the tenants were granted but that the amounts in the counterfoils of the receipts were altered and that the books of the State were falsified with a view to showing that lesser sums had been collected than had been in fact received from the tenants. In this way, the prosecution alleged, a sum of Rs. 80 was embezzled by the applicant and by Sita Ram. Sita Ram is absconding. The applicant was arrested after he had absconded for about a year.
2. The learned Magistrate who tried the applicant was satisfied that the applicant had acted dishonestly throughout, and in concert with Sita Ram had embezzled funds which belonged to the Benares State. As already noted he convicted the applicant and sentenced him to nine months' rigorous imprisonment. The learned Sessions Judge in the appellate Court held however that the evidence did not establish that the applicant had committed an offence under Section 408 or Section 408/109, I.P.C. He accordingly set aside the conviction and sentence. He directed however at the same time that a charge under Section 477-A be framed against the applicant and that the applicant be committed to the Sessions. It is not disputed that the books of the Benares State were falsified and the evidence is such that there is a prima facie case that the falsification was effected by the applicant. Learned Counsel for the applicant however has contended that in view of the provisions of Section 403, Sub-sections (1) and (4) it was not open to the learned Sessions Judge to order that the applicant be tried on another charge framed on the same facts. Section 403(1), Criminal P.C., is as follows:
A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
3. Sub-section (4) is in the following terms:
A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
4. It would appear therefore that the appellate Court was entitled to order a fresh charge upon the same facts to be framed against the applicant only if the Court by which he was first tried was not competent to try the offence under Section 477-A, I.P.C., for which he is now directed to be tried. Prior to 1923 the Sessions Court alone had jurisdiction to entertain a charge under Section 477-A. In 1923 however the Criminal Procedure Code was amended and Magistrates of the First Class were given jurisdiction to try charges under Section 477-A, I.P.C. It would appear therefore that in view of the provisions of Sub-sections (1) and (4), Section 403, Criminal P.C., it was not open to the learned Sessions Judge to direct that, upon the same facts as the original charge under Section 408 or Section 408/109 had been based, the applicant should be committed for an offence under Section 477-A. The learned Assistant Government Advocate contended that the learned Sessions Judge had jurisdiction to order the applicant to be committed upon a charge under Section 477-A in virtue of the provisions of Sub-section (2), Section 403, Criminal P.C. Sub-section (2) is in the following terms:
A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).
5. Section 235, Sub-section (1) is in the following terms:
If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
6. Clearly Section 235, Sub-section (1) refers to cases where a series of distinct and separate offences have been committed. This is made obvious by the illustrations which are appended to the section. Now in the present instance it is clear that the applicant could not possibly be tried for two separate offences, one under Section 408/109 and the other under Section 477-A. The acts which the prosecution allege amount to an offence under Section 408/109 are precisely those acts which it is now alleged amount to an offence under Section 477-A. It is quite clear that the prosecution in the first instance could not have charged the applicant with an offence under Section 408/109 and also under Section 477-A. It might well have charged him with an offence under Section 408/109 or in the alternative with an offence under Section 477-A, but certainly it could not have preferred two distinct and separate charges, one under each section, against him. Therefore the provisions of Section 403(2), Criminal P.C., do not warrant the committal of the applicant upon a fresh charge in the present instance. I am supported in this conclusion by the decision in Emperor v. Jhabbar Mull Lakkar A.I.R. 1923 Cal. 129. In the result I hold that having quashed the conviction of the accused under Section 408 or Section 408/109, I.P.C., the learned Sessions Judge had no alternative but to acquit the applicant and he had no jurisdiction to order his committal upon a charge under 8. 477-A. I accordingly allow the application, set aside the order of the learned Sessions Judge and acquit the applicant of the charges which have been preferred against him.