P.K. Tare, J.
1. This revision under Section 439 of the Criminal Procedure Code is by the complainant. Upon the report of the applicant, the Sagar Police put up a challan against the non-applicant Digram and three others, namely, Girilal, Kishorilal and Ramgopal for alleged offences under Sections 120B, 420, 483, 485 and 486 of the Indian Penal Code. At the initial stage of the trial, the Trial Magistrate discharged the accused Digram under Section 251-A(2) of the Criminal Procedure Code. The present revision is directed against the order dated 8-7-1957, passed by Shri M. Bajpai, First Additional Sessions judge, Sagar, refusing to set aside the order of discharge passed by Shri L. B. B. Singh. Judge-Magistrate, Sagar on 11-2-1957 in Criminal Case No. 33 of 1956.
2. It was the prosecution case that the non-applicant and the 3 other accused entered into a conspiracy for cheating, and with that object in view, they were in possession of counterfeit trade mark of bidi labels identical with the registered trade mark of the applicant, bearing trade mark No. 22 and registered in the name of Brijlal Manilal. The applicant is a partner of the said firm of Brijlal Manilal.
3. The non-applicant had earlier been prosecuted and also convicted of an offence under Section 485 of the Indian Penal Code by the Magistrate First Class, Delhi. On account of that conviction, the trial Magistrate discharged the non-applicant on the ground that the accused could not be prosecuted for the same offence twice. The learned Additional Sessions Judge upheld that view of the trial Magistrate.
4. From a perusal of the judgment of the previous case, which is on record, it is clear that the present non-applicant was prosecuted for an offence under Section 485 of the Indian Penal Code on the allegation that he was in possession of some counterfeit labels bearing similarity to the labels of the applicant, which had been registered as a trade mark with registration No. 22. For that offence the Magistrate at Delhi convicted the non-applicant in Criminal Case No. 91/2 and sentenced him to imprisonment till the rising of the Court and also imposed a fine of Rs. 1000/-.
5. In the present case certain other similar labels, as also dyes for printing wrappers and labels were seized. It may be that a person may be in possession of different sets of counterfeit labels on different occasions at different places. If such a person be found in possession, he, in my opinion, will be deemed to have committed a distinct and separate offence in respect of each set of counterfeit labe's found with him at different places. It cannot be said that a second prosecution in respect of another set of counterfeit labels found with a person would amount to a prosecution for the same offence twice.
Even from the judgment of the previous criminal case as also the challan filed in the presentcase, it is apparent that the non-applicant is being prosecuted for offences under different heads in respect of different sets of labels and dyes for printing wrappers and labels, which were not the subject matter of the previous prosecution. Even in respect of the labels, it cannot be said that the non-applicant is being prosecuted for the same offence twice. Therefore, I am of opinion that the present prosecution cannot be said to be in violation of Section 403, Criminal Procedure Code or Article 20(2) of the Constitution of India.
6. Regarding Section 403 of the Criminal Procedure Code, Sub-section(2) thereof permits a trial for any distinct offence, in respect of which a separate charge might have been made against the person in the former trial under Section 235(1) of the Criminal Procedure Code. On account of this, the previous conviction cannot be a bar to the prosecution of the non-applicant for an offence, which, he was not charged with, in the previous case. The prosecution would be barred in respect of any charge which was framed in the previous case and of which he might have been found guilty or might have been discharged or acquitted. Hypothetically we might assume that the prosecution arises out of the same set of facts.
A person is found in possession of counterfeit labels at two different places in the same town. The offence in respect of each set of labels would be distinct. If he be prosecuted for the offence in connection with one set of labels and not the other set of labels, regarding which, another case may be started later, the previous prosecution cannot be a bar to the prosecution of a person later in respect of the other offences in connection with the other set of labels found with him. The bar of Section 403, Criminal Procedure Code would arise, if the person be prosecuted for both the sets of labels in the previous case. In the absence of such person being prosecuted for the two distinct offences, the second prosecution for the second set of labels forming a distinct offence would not in my opinion be a bar.
7. However, as observed by me earlier, the present prosecution does not arise out of the same set of facts, nor, can it be said that the present prosecution is for the same offence. In my opinion, the offence in respect of the first set of labels found with the non-applicant was a distinct and separate offence, for which he was convicted and sentenced by the Delhi Magistrate. The present set of labels along with the dyes for printing wrappers and labels would, in my opinion, constitute a distinct and separate offence, for which the non-applicant was neither prosecuted nor charged in the previous case, Therefore, the previous conviction would not be a bar to the present prosecution for a distinct and separate offence. The learned counsel for the applicant invited attention to Abdul Ahmad v. The State, AIR 1952 All 597 Satishchandra Mukherjee v. Harimati Dasi, AIR 1954 Cal 393, Kristapado Bhakta v. The State, AIR 1954 Cal 297 and Kunjilal v. State of Madhya Pradesh, (S) AIR 1955 SC 280, which laid down that a prosecution in respect of heads which were not the subject matter of the charge in the previous case is tenable subsequently, although the two prosecutions may arise out of the same set of facts, This was what their Lordships of the Supreme Court laid clown in (S) AIR 1955 SC 280 (supra):
'It was also contended that the appellants were already prosecuted for an offence under Section 7, Essential Supplies (Temporary Powers) Act. 1946, for exporting the contraband goods and although they were convicted by the Magistrate they were acquitted on appeal by the Additional Sessions Judge, Sagar, on 31-10-1952. It is argued upon the strength of this judgment which was admittedly not brought to the notice of the High Court that under Section 403(1), Criminal Procedure Code the appellants who had once been tried for the offence and acquitted could not 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 them might have been made under Section 236 or for which they might have been convicted under Section 237. Neither Section 236 which deals with a case where there is a doubt as to which offence has been committed nor Section 237 which entitles the Court to convict a person of an offence which he is shown to have committed although he was not charged with it, applies. Sub-section (2) of Section 403 in our opinion furnishes a complete answer to the contention raised on behalf of the appellants. That sub-section reads:
'403(2). -- 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).' The appellants were not tried again for the same offence as contemplated under Section 403(1) but for a distinct offence as contemplated by Sub-section(2). It is true that in order to sustain the charge under Sections 332 and 392. Indian Penal Code, the Court had to consider whether the seizure was legal and was made by a public servant in the discharge of his duty but once that was found against the appellants the further question to be determined was as to whether they committed the offence of ebbing the Head Constable of the goods lawfully seized and whether they voluntarily caused hurt to him while he was acting in the discharge of his duties as a public servant.'
In the said case, the accused attempted to take rice and ghee in bullock cart from the border or Madhya Pradesh into the State of Uttar Pradesh. Export of ghee and rice was prohibited under the Essential Supplies (Temporary Powers) Act, 1946. At the border between the two States, the accused had a scuffle with the Head Constable, who seized the goods. Later the accused snatched the goods from the possession of the Head Constable and beat him. On the first occasion the accused were prosecuted for offences under the Essential Supplies (Temporary Powers) Act. They were convicted for the offence by the trial Magistrate, but acquitted by the Additional Sessions Judge.
On the second occasion they were prosecuted for offences under Sections 332 and 392, Indian Penal Code. Although the two prosecutions arose out of the same set of facts, their Lordships of the Supreme Court laid down that the second prosecution was not a bar under Section 403(2), as it constituted a distinct offence though arising out of the same facts and the accused were not charged for this distinct offence in the earlier prosecution, Following the principles laid down by their Lordships of the Supreme Court, I am of opinion that the present case stands on a much better footing, inasmuch as not only the two offences in the present case are distinct but they arise out of different sets of facts, which cannot be said to form one transaction.
8. Coming to the bar of Article 20(2) of the Constitution of India, the same is not attracted in the present case. It cannot be said that the non-applicant is being prosecuted or punished for the same offence more than once. As laid down by their Lordships of the Supreme Court in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, the principle underlying Article 20(2) of the Constitution and Section 403 of the Criminal Procedure Code is the same. While elaborating the term 'the same offence', their Lordships have observed that the two prosecutions should be before a Judicial Tribunal in respect of the same transactions in order that the provisions of Article 20(2) be attracted.
In the said case the gold had been seized and confiscated under the Sea Customs Act and although the facts might be different yet the principle laid down by their Lordships of the Supreme Court is equally applicable to the present case, inasmuch as the prosecution in the present case is not in respect of the same offence, but a distinct and separate offence. The non-applicant was prosecuted for being in possession of certain counterfeit labels in the previous case and was accordingly convicted by the Magistrate at Delhi. In the present case the non-applicant is being prosecuted for possession of certain other sets of counterfeit labels, as also dyes for printing of wrappers and labels, which offence constitutes a distinct and separate offence and which has nothing to do with the counterfeit labels found on the earlier occasion.
The trial Magistrate, as also the learned Additional Sessions Judge were, in my opinion, clearly in error in failing to note the principles laid down by their Lordships of the Supreme Court and in misapprehending the purport and scope of Section 403, Criminal Procedure Code and Article 20(2) of the Constitution of India. The order of discharge passed by the Court below, being based on that misapprehension, cannot, therefore, be sustained. Consequently the order of discharge, I feel, is liable to be set aside as being vitiated by a misapprehension of the law on the part of the trial Magistrate, as also the Additional Sessions Judge.
9. This case was previously heard and decided by me on 23-5-1958, when the non-applicant was not represented in this Court. However, the non-applicant, subsequently, applied for setting aside the ex parte order passed against him, which came to be so passed, as his counsel was out of Jabalpur during the summer vacation. By order, dated 20-8-59, I set aside the ex parte order dated 23-5-1958 and directed the revision to be reheard in the presence of the non-applicant.
10. The learned counsel for the non-applicant urged that this Court could not interfere with the order of discharge passed in a police challan case, at the instance of a private complainant, particularly when the State had not filed a revision before the Additional Sessions Judge or this Court. The learned Government Advocate appeared for the State and supported the contention of the applicant. However, I propose to consider the question irrespective of the concession made by the learned Government Advocate.
11. In Emperor v. Ganpati Sitaram, ILR (1944) Nag 176: (AIR 1944 Nag 136), Pollock J. held that there should ordinarily be no interference with acquittal in a police challan case at the instance of a private complainant to wreak his private vengeance, on the accused. The learned Judge further observed that although the High Court has the power to interfere, it would do so in exceptional circumstances, which would justify a second trial. I have no hesitation in accepting the principle indicated by Pollock J. in this behalf. But, according to me, the present case belongs to the category of exceptional cases, as, in this case, the order of discharge was passed by the trial Magistrate and upheld by the Additional Sessions Judge upon a clear misapprehension of the purport and the scope of Section 403, Criminal Procedure Code and Article 20(2) of the Constitution of India.
That misapprehension on the part of the learned Judges makes an interference by this Court necessary in the interest of justice. A Division Bench of the Nagpur High Court consisting of SirGilbert Stone C. J. and Niyogi J. in Raghunathmal v. Patiram, ILR (1938) Nag 157: (AIR 1937 Nag 394) held that the High Court could interfere with acquittal at the instance of a private complainant subject to the limitations imposed by Section 439(4) of the Criminal Procedure Code, Another Division Bench consisting of Niyogi J. and Gruer J. in Sheoprashad v. Emperor, ILR (1938) Nag 442: (AIR 1938 Nag 394), expressed the view that it was both legal and proper for a Sessions Judge or a District Magistrate to set aside an order of discharge on the ground of misapprehension of evidence. In my opinion, a case of misapprehension of the law would stand on a stronger footing than the case of misapprehension of evidence.
Moreover, the powers of this Court under Section 439 of the Criminal Procedure Code are much wider than those conferred by Section 435 of the Criminal Procedure Code. Therefore, I am of opinion that subject to the limitations laid down by Section 439(4) of the Criminal Procedure Code, this Court has the power to interfere with an order of discharge and that the present case is a fit one for such interference as it belongs to the category of exceptional cases, where non-interference may amount to justice being thwarted, due to a misapprehension of the law on the part of the learned Judges of the Courts below.
12. Therefore, to conclude, I am of opinion that the order of discharge passed by the trial Magistrate cannot be permitted to stand and the same ought to be set aside, with a further direction that the trial Magistrate shall hold further inquiry into the case and deal with the case in accordance with the provisions of the law.
13. Therefore, this revision succeeds and isallowed. The order of discharge passed by thetrial Magistrate is set aside and the case is remittedto the trial Magistrate under Section 436 of the CriminalProcedure Code for further inquiry and trial according to law.