1. The ground of this appeal is that the accused has already been acquitted on the same facts, and that by virtue of Section 403 of the Criminal Procedure Code he cannot be tried for the offence for which he has now been convicted.
2. The accused was first charged with abetment of dacoity with murder. Ha was tried by the Sessions Court with the aid of assessors and was acquitted. He was afterwards charged with the offence of receiving stolen property and was tried before the Sessions Judge and a jury, and the jury returned a verdict of guilty. The Judge accepted the verdict and convicted the accused of the offence of receiving stolen property. The Public Prosecutor concedes that he is unable to show that the facts on which the accused was convicted of the offence of receiving stolen property differ from the facts on which he was acquitted of the offence of abetment of dacoity with murder. But he relies on Sub-section (4) of Section 403 of the Criminal Procedure Code, which is in the following terms:
A person acquitted or convicted of any offence constituted by any act 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.' Under the rule made under the powers conferred by Section 269 of the Code of Criminal Procedure a charge of receiving stolen property must be tried by a jury.
3. We are of opinion that 'the Court by which he was first tried,' i.e., the Court of Session, was competent as a Court of Session to try the offence of receiving stolen property. The illustrations (f) and (g) show that the words 'was not competent to try' mean 'had not jurisdiction to try.' The charge of receiving stolen property not being a charge triable with the aid of assessors, it was open to the Judge to empanel a jury to try it. Even if he had proceeded to try the case with the aid of assessors and no objection had bean taken before the Court had recorded its finding, the trial would not have been invalid on that ground only, and if the Judge had convicted, the conviction could not have been impeached--see Section 536 (2) of the Code of Criminal Procedure. These provisions of the law are quite inconsistent with the contention put forward by the prosecution that the Court by which the accused was first tried was not 'competent to try' the charge of receiving stolen property. The appeal must be allowed and the conviction sat aside. The accused must be set at liberty.