Abdur Rahim, J.
1. Two learned Judges having differed in a Criminal Revision Case, Section 489 of the Code of Criminal Procedure read with Section 429 requires the case to be decided by a third Judge and precludes any further appeal under the Letters Patent or any reference to a Full Bench under the Rules of the Court.
2. With reference to this case I have arrived at the same conclusion as Mr. Justice Abdur Rahim.
3. If Sections 403 and 494 of the Code of Criminal Procedure had been originally enacted at one and the same time, I should find it very difficult to come to that conclusion. Bui seeing that the Code of Criminal Procedure, which is founded on the English Law of Criminal Procedure, has been repeatedly modified in the successive Codes of 1861, 1872, 1882 and 1898, when an apparent conflictarises between what would appear to be the intention of the Legislature in one section and what would appear to be its intention in another section, the best method of ascertaining what the intention of the Legislature really is appears to me to be to examine what is the English rule upon the subject and how far that rule has been adopted and what modifications have been subsequently introduced in the successive Codes.
4. Now in English Law a plea of autrefois acquit or convict can only be raised in bar of subsequent proceedings when the conviction or acquittal has been for the same offence in a trial had before a Court of competent jurisdiction. The Attorney-General at any stage of a criminal prosecution may enter 'a nolle prosequi' and bring the proceedings to an end. But that does not bar fresh proceedings against the accused. Consequently in England when the Prosecution desire not to go on with the case the practice is not to tender further evidence and for the Judge then to direct the jury to acquit. That rule of English Law was embodied in the Code of Criminal Procedure of 1861. in Section 55 as follows: 'A person who has once been tried for an offence and convicted or acquitted of such offence, shall not be liable to be tried again for the same offence,'--words which with certain explanations are still retained in Section 403 of the present Code. Under that Code Public Prosecutors were directed by the Calcutta Court not to withdraw the graver charge and proceed upon the lesser charge because such a course would have the effect of depriving the accused of the benefit of acquittal on the graver charge. (5 Sutherland's Criminal Letters 4). Then came the Code of 1872, Section 61 ' A Public Prosecutor may, with the consent of the Court, withdraw any charge against any person in any case of which he is in charge; and upon such withdrawal, if it is made whilst the case is under inquiry, the accused person shall be discharged. If it is made when he is under trial, the accused person shall be acquitted.' This was an entirely new departure because it entitled the accused to an acquittal by statute on the withdrawal by the Public Prosecutor and without any reference to the evidence at the trial. It has never been doubted that when the Public Prosecutor withdraws under this section and the accused is acquitted he cannot be subsequently charged for the same offence. Yet, it seems difficult to bring such an acquittal within the language of Section 460, of that Code (now Section 403) and say that he is a person who has been ' tried ' for an offence and convicted or acquitted. Supposing the Public Prosecutor to intervene immediately after the case is taken up by the Sessions Judge and to withdraw and the accused then to be acquitted, I find great difficulty in saying that the accused has been 'tried' and acquitted within the meaning of Section 403 of the present Code. It seems to me that in Section 61 of the Act of 1872 the Legislature introduced a fresh form of statutory acquittal under that section which was intended to have the same operation as an acquittal in accordance with the English rule under Section 460 (now Section 403).
5. So much for the Code of 1872. It was only in the Code of 1882 that the alteration was made which has given rise to the present case. Section 494 dealing with the withdrawal by the Public Prosecutor, provided that ' if the withdrawal is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted.'
6. The reference in the latter part was clearly to summons-cases which deal with more trivial offences and, it seems to me the intention of the Legislature was that the withdrawal by the Public Prosecutor at any stage in those trivial cases was to have the same effect as his withdrawal under the previous part of that section, that is to say, that there was to be a final bar of fresh proceedings.
7. A similar change was introduced as regards this class of cases into what is now Section 247 of the Code, as regards non-appearance of the complainant in a summons-case.
8. In the Code up to that time such failure to appear by the complainant had merely led to a dismissal of the complaint. But in 1882 to make the law more stringent it was provided, as it still is, that on the non-appearance of the complainant the Magistrate might acquit the accused unless he chose to adjourn. Here again, I think that the intention of the Legislature was that the acquittal should operate as a final bar of further proceedings. The history of the legislation shows, to my mind, a distinction between what I may call the common law plea of autrefois acquit as embodied in Section 403 of the Code, and the statutory acquittals which have been introduced in Sections 494, 247 and 345.
9. It has not been suggested in this case that the withdrawal from the prosecution by the Public Prosecutor was irregular and in these circumstances I agree with the conclusion arrived at by Mr. Justice Abdur Rahim that the conviction and sentence are bad in law and should be set aside.