1. In this case a Rule was issued to show cause why the order of the trial Magistrate issuing a summons on a charge under Section 379, I. P. C, against the petitioner, should not be set aside on the ground that it was illegal. The simplest way to set out the issue that arises upon this Rule is to state the facts chronologically. The accused petitioner was charged originally by the complainant's brother with various offences particularly under Sections 453 and 379, I. P.C. His story was that the accused petitioner had trespassed upon his land and in his house and had stolen articles belonging to him which were in the house. The Magistrate who heard the complaint framed a charge under Section 453 only. Presumably he came to the conclusion after hearing evidence that the complainant had not proved any case under Section 379. The accused petitioner was acquitted of the charge under Section 453, the facts being that he had obtained a decree for khas possession of both the land and the house and therefore the Court came to the conclusion that ho could not be held guilty of criminal trespass and it was suggested by the Court on appeal that he ought to have been charged if at all, with the offence of wrongfully stealing or keeping back from the complainant the goods which the complainant alleged were in the house at the time when the accused petitioner entered it. The evidence further showed that it was untrue to say that the accused petitioner had broken the look of the door because In fact the house had been virtually abandoned for nearly two years and had. been used as a store-room by other persona and for holding ceremonies therein and had been lying thus unprotected for a considerable time. These facts show that the complainant's story about the theft of the goods by the accused petitioner is unlikely to be true.
2. After the acquittal of the accused petitioner under Section 4.53 the complainant died and subsequently his brother purporting to act on his behalf preferred a further complaint upon the same facts against the accused petitioner under Section 379.
3. Thereupon the accused petitioner raised the contention with which we are now dealing under Section 403, Criminal P.C., arguing that he had been previously acquitted of the offence with which he was then charged upon the game facts. The trial Magistrate who heard this plea decided that Section 403 did not apply, at any rate until he had heard the evidence which the complainant sought to bring forth and upon appeal this view was upheld by the Sessions Judge. We are of opinion that both these decisions are right. Section 403 (2) provides that a person who has been acquitted of an offence may be afterwards tried for any distinct offence for which a separate charge might have boon made at the formal trial under Section 235 (1). That section provides that if, in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence. It is clear from the facts which have been stated that this accused might have been charged under Section 379 as well as under Section 453, I. P.C. It is not the fault of the complainant or his brother that the accused was not so charged. His brother complained of the theft of these goods before the Magistrate in the first place. We are of opinion that the Magistrate was at fault in not framing a charge under both sections against the accused petitioner in which case the whole of the matter would have been disposed of at one trial. Although the words of S.. 403 (2), Criminal P.C., are quite clear, we agree that they do not prevent the Court in suitable cases from doing what in essence seems at first to limit the provisions as they stand. This was held in a number of cases and some of them are referred to in the judgment of. Mukerji, J., in the case of Sidh Nath v. Emperor : AIR1929Cal457 The same matter has been dealt with in the case of Emperor v. Chinna Kaliappa Gounden  29 Mad. 126 at p. 138. The Court is enabled to do this because the wording of Section 403 is such as to enable the Court to put a limit to the provisions in suitable cases to prevent injustice. In the case of Sidh Nath : AIR1929Cal457 to which I have referred, the facts were that the accused had been committed for criminal breach of trust and was charged with only throe particular items out of a number which it was suggested he had misappropriated. Subsequently the complainant sought to have been prosecuted with regard to two other items arising out of the same set of accounts.
4. It might be argued that such a procedure is permitted by the wording of Section 403, but such a species of persecution which might be extended to trials covering the whole of the life of the accused will not be permitted by the Court and we have no doubt at all that in similar circumstances the Court could pre-vent such a procedure. Such a condition of affairs however does not arise in the present case. As I have already said it was not the fault of the complainant that the accused petitioner was not charged under Section 379 in the first place. Moreover we do not know what evidence the complainant may be able to bring forward upon this second trial. Consequently we do not think it proper to interfere at the present stage and we agree with the decisions of the Magistrate and the Sessions Judge. If it were 'lot for the fact that the complainant has not had an opportunity of having the matter investigated of which he complainant under Section 379, we should have been of opinion that it was inappropriate and inexpedient to allow the accused to be prosecuted a second time for matters arising out of the same set of facts. But in view of the fact that this opportunity was not been afforded to the complainant we cannot interfere. The case will proceed before the 'Magistrate and if he ends on this occasion that the complainant is able to substantiate the accusation which he brings against the accused petitioner then a conviction will follow. But in view of the evidence which was produced at the last hearing it seems to us doubtful whether a prima facie case can be made out. In these circumstances the Rule must be discharged.
5. I agree.