1. This reference has been made under Section 438, Cr. P. C., by the Sessions Judge, Cuttack, recommending the setting aside of an order dated 31-10-51 of Sri C. V. Murty, Magistrate with First Class powers, Cuttack.
2. The facts giving rise to the reference are these. The petitioners had previously been summoned under Section 426, I. P. C., on a com7 plaint made by the opposite party Banamali Das and that case was pending before the Magistrate, Srirnati Shanti Devi. As the complainant and his witnesses did not turn up on 5-4-1951 to which date the case had stood adjourned, the Magistrate recorded an order of acquittal under Section 247, Cr. P. C.
Thereafter, the opposite party filed another complaint on the same allegations before the Subdivisional Magistrate but that complaintwas dismissed under Section 203, Cr. P. C., as the accused had already been acquitted on a prioroccasion. Thereafter the complainant again filed another complaint on the same facts on 3-5-51 before another Magistrate, and that Magistrate, in ignorance of the fact that there had been a previous order of acquittal in favour of the petitioners, on the same facts, issued summons to the petitioners for trial under Section 352, I. P. C.
The file was thereafter transferred to the file of Mr. C. V. Murty a Magistrate with First Class powers and the petitioners filed a petition before him pointing out that the prosecution should not proceed further as they were barred by the principle of 'autrefois acquit' and that Section 403, Cr. P. C., was a bar. The Magistrate, however, by his order dated 31-10-51, decided to proceed with the case against the petitioners. It is against this order that the present reference has been made.
3. Section 403, Cr. P. C., lays down that a person who has once been tried by a Court of competent jurisdiction for an offence and acquitted or convicted 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 convicted (made?) under any other section.
The first complaint petition shows that there was an allegation of mischief and assault. The Court no doubt issued summons under Section 426, but it was to the Court to take cognizance of an offence under Section 352 as the allegation of assault was before him. Section 403, Cr. P. C., prescribes that no second trial can be held for any other offence if the same facts which constitute one offence for which notice has been issued, would also have constituted the other offence whether notice was issued or not.
Learned counsel for the petitioner relied on a case reported in -- 'Kottayya y. Venkayya', AIR 1918 Mad 212 (A) where a Division Bench of the Madras High Court held that the word.'tried' occurring in Section 403 did not apply to a case where acquittal is recorded on default of prosecution under Section 247. That case, however, was one where the particulars of the offence were not stated to the accused under Section 242. In these circumstances, their Lordships held that the accused could not be said to have been 'tried' as the facts constituting the latter offence were not placed before the Court.
This case was practically overruled by a later decision of the same High Court reported in -- 'Re Dedukula Lal Sahib', AIR 1918 Mad 231 (B). This case arose out of the difference of opinion between Abdur Rahim J., and Napier J., with regard to the meaning of the word 'tried' in Section 403. This was a case in which the Public Prosecutor withdrew from the prosecution under Section 494, Cr. P. C., before the accused had been served with notice, and the accused was acquitted. On the question whether, in circumstances the accused could be said to have been 'tried' within the meaning of Section 403 so as to bar further proceedings, Sir John Wallis C. J. held that the rule of English law requiring the accused to have been tried as well as acquitted in order to bar further proceedings, is inapplicable to statutory acquittals introduced into the Code, namely the Sections now numbered 494, 247 and 345 in the Criminal Procedure Code which are intendedto bar further proceedings, irrespective of whether the accused can be said to have been tried or not.
It would appear, therefore, that the authority of -- 'Kottayya v, Vankayya', (A) has been considerably weakened by the pronouncement of the learned Chief Justice of that High Court in--'AIR 1918 Mad 231' (B) in which his Lordship agreed with Abdul Rahim J. and set aside the conviction recorded at the trial. To the same effect are the decisions reported in --'Narsingh Mahapatra v. Emperor', 9 Cut LT 95 (C) where one prosecution witness was examined and then the prosecution was withdrawn and the accused were acquitted. It was held in that case that they could not be tried for the same offence and that Section 403 was a bar to further proceedings.
The learned Sessions Judge has also relied , upon the cases reported in -- 'Abdul Aziz v. Noor Ellahi', AIR 1934 Lah 211 (2); -- 'Bhu-pati Bhusan v. Amino Bhusan', AIR 1935 Cal 491 (E) and -- 'Emperor v. Laxmi Prasad', AIR 1940 Nag 357 (F). The 'ratio decidendi' of all these cases is that if the facts which constitute both the offences are the same and if one charge could have been framed for the offence which is sought to be tried at the second trial, then Section 403, Cr. P.C., would, operate as a bar.
4. I would accordingly accept the referenceand acquit the accused.