B.P. Beri, C.J.
1. The learned Additional Sessions Judge, Ajmer, by his order dated March 18, 1974 has recommended to this Court that that the order, of the learned Sub-Divisional Magistrate, Kishangarh, whereby he rejected the application of the petitioner Inderdeo Singh Yadav under Section 403 of the Code of Criminal Procedure, be quashed
2. The facts of this case briefly stated are that the accused, who was a member of the Central Reserve Police, was found in possession of two full and one empty cartridge of 303 bore when his luggage was searched by the Central Receive Police officials. He was prosecuted before the Assistant Commandant, Central Reserve Police, who exercising powers of Second Class Magistrate, convicted him under Section 10 of the C R P P, Act, 1949. There-after the police presented a challan against the accused for an offence punishable under Section 25 of the Arms Act on the same set of facts. The accused made an application before the Sub Divisional Magistrate that having been convicted on the same facts he could not be tried again. The learned Magistrate rejected the application on the ground that the Assistant Commandant did not have the power to try the offence under Section 25 of the Arms Act. Aggrieved by this order the accused preferred a revision-application which came to be considered by the learned Additional Sessions Judge, Ajmer, and he has made the recommendation indicated earlier. After citing seven decided cases the learned Additional Sessions Judge came to the conclusion that the prosecution wants to prosecute the accused again on the same set of facts for the offence punishable under Section 25 of the Arms Act and it was not permissible under Section 403 of the Code of Criminal Procedure.
3. I have carefully gone through the order of reference but I regret I cannot accept it.
4. Section 10 of the Central Reserve Police Force Act, 1949, reads : 'Every member of the Force who-
(n) is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline:shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to three months' pay, or with both.
Under Rule 14 of the Rules framed under the Central Reserve Police Force Act, 1949, the Assistant Commandant exercised powers of a Second Class Magistrate. By his judgment dated December 27, 1972, he observed that a complaint under Section 190(1)(a) of the Code of Criminal Procedure was filed before him which inter alia alleged that in the course of conducting a surprise check of kit and personal belongings of the accused Constable Inderdeo Singh Yadav the Board of officers found in the kit and personal belongings of the accused two rounds of 303, one empty case of 303 and one charger clip. The possession of these ammunitions was in contravention of the orders issued from authorities and the accused Constable Inderdeo Singh Yadav had committed an offence under Section 10(n) or the C R.P.P. Act, 1949. because it was prejudicial to the good order and discipline The accused pleaded guilty and and prayed for mercy and he was awarded, having regard to his 6 years and 5 months' service. 10 days' rigorous imprisonment. Subsequently a charge-sheet was submitted before the Sub Divisional Magistrate against Inderdoo Singh under Section 25 of the Arms Act, 1959 on the ground that he was found in possession of two full cartidges and one empty cartridge of 303 bore and one charger clip. Section 25 of the Arms Act provides for punishment against the possession or carrying of any ammunition in contravention of Section 3 of the said Act.
5. The question is whether having been convicted for possessing the self same two full cartridges and one empty cartridge of 303 bore could Inderdeo Singh be prosecuted again under Section 25 of the Arms Act? The learned Additional Sessions Judge has invoked the provisions of Section 403 of the Code of Criminal Procedure for concluding that it could not be done. Their Lordships of the Supreme Court in State of Andhra Pradesh v. Kokkiliagada Meerayya and Anr. (1996) 1 SCC 161 have formulated the important rules which emerge from the terms of Section 403 of the Code of Criminal Procedure. They are:
(1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the court tying the first offence was incompetent to try that other offence.
(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but it a person is tried in respect of some of these charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made.
(3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which resulted therefrom constituted a different offence, he may again he tried for that offence arising out of the consequences, it the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.
(4) A person who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which be might have been convicted under the Code of Criminal Procedure.
The aforesaid principles are often expressed in the convenient phrases of autrefois accuit and autrefois convict Without elaborating it, suffice it to say that the first rule enunciated by the Supreme Count applies to the case in hand The Assistant Commandant exercising Second Class Magistrats's powers could not try the case under Section 25 of the Arms Act because it is punishable with 3 years' rigorous imprisonment Even on the language of Section 403, Sub-section (4), Cr. P C. he was incompetent to try this case In such circumstances, the doctrine of autrefois convict would not applying the situation The learned Additional Sessions Judge briefly mentioned the case Sham Lal v. State and Ors. 1971 CLJ 1489. I have examined the case. It has no relevance. The appropriate case in a situation, such as this, is State v. Shrinath decided by our High Court, where it has been said that a person convicted under Section 409 I PC could still be tried under Section 477A IPC. although the facts constituting the second offence were the same.
6. While I am rejecting this reference, I express no opinion on the question whether the accused in this case was entitled to possess the cartridges and the empty cartridge and is hit by Section 25 of the Arms Act or not.
7. The reference is accordingly rejected.