1. This is a Rule calling upon the Chief Presidency Magistrate to show cause why the order made by him sentencing the petitioner, Alfred Laird, to seven days simple imprisonment under Section 103(4) of the Indian Merchants Shipping Act 11 of 1923, should not be set aside on the first and second grounds specified in the petition. These grounds are; first, that the petitioner had already been convicted upon the same facts, and consequently his subsequent trial and conviction was bad in law; and secondly, that the conviction of the petitioner under two different enactments for the same act was illegal.
2. There is no dispute about the facts. The petitioner was the Third Officer of the steamship 'City of Newcastle' and he was sent up on the 26th April 1926 upon a charge of having assaulted the Captain of the ship, Daniel Jenkins. According to the evidence the petitioner was drunk and used abusive language and assaulted the Captain with the result that the Captain was somewhat seriously injured and had to call in the police. A Sergeant of Police came on board the ship, the occurrence having taken place in the Captain's cabin and took the accused ashore. He was placed before an Honorary Magistrate charged with an offence under Section 68 of the Calcutta Police Act. In para. 6 of the form the offence complained of is stated to be
drunk and disorderly conduct by creating a disturbance by assaulting the Captain of the vessel 'City of Newcastle' at No. 2 Berth, kidderpore Docks, on the 25th April 1926,
and the section given was Section 68 of the Calcutta Police Act. In the 7th paragraph the plea of the accused was recorded in these words : 'Admits asault.'
3. Thereupon the learned Honorary Magistrate, Dr. Sarbadhikari, made the final order fining the accused Rs. 20 or in default seven days rigorous imprisonment. Thereafter, on the 28th April, the Captain filed a second complaint under Section 103(4) of the Indian Merchants Shipping Act. This case was heard by Mr. Roxburgh, the Chief Presidency Magistrate, who, on the 10th of May sentenced the petitioner to seven days simple imprisonment. The defence set up by the petitioner before Mr. Roxburgh was that he had already been convicted and fined Rs. 20. The learned Magistrate state? that the fact that the petitioner had already been fined under the Calcutta Police Act was immaterial, and goes on to say:
What happened evidently was that the police arrested the accused on the letter of the Captain and than had to justify this by putting up a cognizable case. They sent the accused up then on a challan for drunken and disorderly conduct by creating a disturbance by assaulting the Captain of the vessel City of Newcastle' at No. 2 Berth, Kidderpore Docks, on 25th April 1926.' But the Captain's letter which was sent up with the challan shows that the assault was in his cabin. If the Magistrate had bothered to read this and to give the matter a moment's thought, he would have seen that whatever the accused might plead, he ought never to have been called on to answer a charge under Section 68 (Act IV of 1866) street appliee to anyone found drunk etc., in any which or thoroughfare or in any place of public amusement or.... It is thus clear that the conviction under Section 68 of the Police Act is illeged and the accused can get it set aside if he thinks fit. But in my opinion it does not in any way bar the present proceedings under Section 403, Criminal P.C., or Section 26 of the General Clauses Act.
4. He says in conclusion:
So that even if Section 68 could have any application here the offlences are governed by Section 235(1) of the Criminal Procedure Code, and not by Section 236 or, 237, Criminal P.C.
5. The question here seams to me to be purely one of fact, that is to say, of what offence was the accused convicted before Dr. Sarbadhikari. Can it be said that the offence was split up, so to speak, into its component parts and that the accused was convicted by Dr. Sarbadhikari for using abusive language and not convicted of assault? When the record is examined it will be found that the accused was convicted of assault and nothing more. Therefore when the complainant seeks to have the petitioner again placed on his trial for the same offence under a different enactment, namely, the Indian Merchants Shipping Act, it seems to me difficult to say that the provisions of Section 403, Criminal P.C., do not apply. Before Dr. Sarbadhikari the petitioner pleaded guilty of assault and upon that plea he was convicted. Section 103(IV) of the Indian Merchants Shipping Act says that a seaman shall be liable to be punished
If he assaults the master or any mate or a certified engineer of the ship and shall be liable to imprisonment for a term which may extend to 12 weeks.
6. It is clear therefore that the essence of that section is assault. Now Section 403. Criminal P.C., says this:
A person who has once been tried by a Court, of competent jurisdiction for an offence, and 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 offences 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.
7. It is perfectly true that the charge against the petitioner might very well have been laid under the Indian Merchants Shipping Act in the first instance, and probably it was wrong of Dr. Sarbadhikary to entertain a charge under the Calcutta Police Act, because on the face of it was inappropriate. At the same time, when Mr. Khundkar who appears for the Crown asks us to interfere in our revisional capacity and set aside the conviction under the Police Act because the conviction under the Indian Merchants. Shipping Act would be more appropriate, we do not feel disposed to accede to his request. There can be no question in my judgment that the substantial charge upon which the petitioner was convicted under the Police Act was assault and the Honorary Magistrate recognised that, that was the offence of which he was guilty. I think, therefore, that Section 403(1), second part, must operate as a bar to a second conviction upon the same facts. The result therefore is that the. Rule is made absolute. Let the petitioner be released and discharged and let his bail bond be cancelled.
8. I agree.