1. The facts which it is necessary to state in connection with this rule briefly are as follows : One Mahamaya Dasi filed a petn. of complaint on 24-7-1948 against the petnrs. The allegations made against them were that on the day of the solar eclipse, the 26th of Raisakh between 9 & 10 A. M. the petnrs. assaulted her with blows & slaps. The assault was a result of a dispute which had arisen between her & the petnrs. who were her tenants. Upon this complaint being filed the accused were summoned under Section 352, I. P. C. On a date fixed for hearing the complainant was absent & the accused were acquitted in accordance with the provisions of Section 247, Cr. P. C. Thereafter on 23-10-1948 a second complaint was filed by Mahamaya Dasi against these petnrs. with respect to the same occurrence & making virtually the same allegations against them. In this petn. the place of assault was stated. It was said that Mahamaya was assaulted in her kitchen. In the former case no mention of the place of the assault had been made. Upon this petn. being filed, the accused were summoned to answer charges punishable under Sections 323 & 504, I. P. C. They have obtained this Rule against this order & their case is that having regard to the fact that they were acquitted in respect of this occurrence in the former case they could not be tried again upon the present complaint. They invoke the aid of Section 403, Cr. P. C. as a bar to this trial. Learned Advocate appearing on behalf of the opposite party, Mahamaya Dasi, argues that although the petnrs. were acquitted in the proceedings instituted on the first complaint of 24-7-1948 there is no bar to their being tried again on the second complaint having regard to the provisions of Sub-section (2) of Section 403, Cr. P. C. He contends that on the facts alleged in the second complaint a case of criminal trespass has been made out & the petnrs. may be tried for criminal trespass.
2. It will now be necessary to set out the relevant provisions of the Code. Section 403, Sub-sections (1) & (2) are in the following terms :
'403 (1). A person who has been once tried by a Ct. of competent jurisdiction for an offence & convicted or acquitted 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 made under Section 236, or for which he might have been convicted under Section 237.
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, subsection (1).'
3. Section 235 (1) is as follows :
'235, (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by same person, he may be charged with, & tried at one trial for, every such offence.'
4. I am of opinion that there are two impediments in the way of the success of the contention urged on behalf of the opposite party. Sub-section (2) says that if a person be acquitted of any offence, he may afterwards be tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235 (1). Now, on the allegations made in the petn. of complaint & the initial deposition of the complainant in the former trial there could have been no charge of criminal trespass. That being so, it cannot be said that a separate charge might have been made against the petnrs. at the former trial under Section 235 (1) with respect to the offence of trespass. Sub-section (2) of Section 403 will, therefore, have no application.
5. Apart from this objection, there is a more formidable difficulty in the way of the opposite party. The principle underlying Section 403, Cr. P. C. is this : A person should not be vexed twice with respect to the same matter. If certain allegations are made against a person & he is criminally tried with respect to those allegations & acquitted, he should not be tried again with respect to offences which are made out by the allegations made against him. Nemo debet bis vexari pro una et eadem causa. Now, leaving all technicalities aside what has happened in this case Certain allegations were made against the petnrs. stating that they had committed certain high-handed acts against the opposite party and thereby rendered themselves liable to criminal prosecution. They were tried with respect to these allegations & were acquitted. It mast be taken that they were acquitted with respect to all the offences which can be said to have arisen upon the allegations made in the petn. of complaint & in the initial deposition. It will be necessary to remind one-self here of the fact that there was no evidence recorded in this case &, therefore, it must be taken that the acquittal operated with respect to any offence which may be said to have been committed upon the allegations made in the petn. of complaint & in the initial deposition. It follows from this that the petnrs. could not be tried a second time for any offence which was based on the very same allegations. The second petn. related to the identical incident. There was no new occurrence. The only difference between the first & the second petn. of complaint was this that in the second petn. of complaint the place of the assault was given, whereas in the first petn. it was omitted. It seems to me that it would be offending against the principle underlying Section 403, Cr. P. C. if the petnrs. are tried again with respect to this incident by adopting the technical device of trying them for criminal trespass which was not specifically alleged against them in the first petn. of complaint.
6. I would further point out that in Section 403, Sub-section (2) there is an important word used namely the word 'distinct'. It is said that a person may be subsequently tried for any distinct offence for which a separate charge might have been made against him at the former trial under Section 235 (1). It does not say that he may be afterwards tried for any other offence for which a separate charge might have been made against him at the former trial under Section 235 (1). The words 'distinct offence' are specifically used. Now, Section 235, Sub-section (1) says that if several offences are committed in the course of the same transaction, a person may be tried at one trial for all such offences. Now, these offences may be distinct offences or they may be offences which are interdependent. An example would make the position clear. A person may enter a house & commit theft, rape & assault therein. These would be distinct offences. The offence of rape would not be dependent in any way on the offence of theft, but in the present case the offences are not distinct. The offences charged against the petnrs. could not have been committed if that petnrs. had not committed criminal trespass. The case against them was that they assaulted the opposite party in her kitchen. This particular assault could not have been committed except by the petnrs. trespassing into the kitchen of the opposite party. The offence of trespass is, therefore, not distinct from the offence of assault. Both offences are interdependent. Trespass was committed in order to assault on the opposite party. That being so, Section 403, Sub-section (2), Cr. P. C. can have no application. This was the view taken by the Rangoon H. C. in the case of Yeok Kuk v. Emperor, 6 Rang. 386 at p. 389 : (A. I. R. (15) 1928 Rang. 252 : 29 Cr. L. J. 930).
7. Having regard to all these facts, I am of opinion that the petnrs. are protected by the provisions of Section 403, Sub-section (1), Cr. P. C. & that Sub-section (2) of the said section has no application. The proceedings against them are, therefore, quashed & this rule is made absolute.