K.C. Das Gupta, J.
1. The petitioners figured as accused persons in a petition of complaint lodged by Harimati Dasi on. 16-8-1951. After examination of the complainant under Section 200, Criminal P. C. the learned Magistrate ordered issue of summons on two of the? petitioners Rash Behary and Bhakta under Section 447, Penal Code. On 30-8-1952 the complainant was found absent on call while the accused persons were found present, in the court of the Magistrate to whom this case had been transferred. The learned Magistrate thereupon acquitted the accused persons under Section 247, Criminal P. C.
On 12-9-1952, a fresh complaint was lodged by Harimati Dasi containing substantially the same allegations. The learned Sub-Divisional Magistrate after examination of the complainant under Section 200, Criminal P. C. issued warrant of arrest against all the three accused persons, Satish Chandra Mukherjee, Rash Behari Mukherjee and-Bhskat under S_ections 379 and 427, Penal Code. The present application to this Court is for quashing the proceedings.
2. Looking at the general merit of the matter it certainly seems hard, as has been stressed by Mr. Mukherjee before us, the complainant having been unsuccessful in the proceedings started against these persons would be able in law to start practically the same proceedings again. We have, however, to consider the law of the matter and decide whether under the law this can be done.
3. As regards Rash Behary and Bhakat the position clearly is that they were tried by a Magistrate on a complaint of facts which were the same as in the present complaint and they were acquitted. The question is whether they can be said to have been acquitted of the offence with which they are now being tried. If the acquittal can be considered in law to be in respect of all the offences mentioned in the petition of complaint the legal result will certainly be that no fresh trial can be held in law.
When, however, a Magistrate issues summons under Section 204, Criminal P. C. it seems to me proper to hold that that summons is directed to put a person on trial of the offence specified in the summons, it is true that if during the trial the Magistrate finds from the facts admitted or proved that the accused has committed some other offence triable as a summons case the Magis- trate can convict him of that offence also. When, however, the summons mentions one offence it cannot, in my judgment, be said properly that he has been tried not only of that offence but also of all other offences which the facts mentioned jn the petition of complaint might make out. I am, therefore, unable to accept the contention of Mr. Mukherjee on behalf of the petitioners that the order of acquittal of Rash Behari and Bhakat amounted in law to an acquittal not only of the offences under Section 447, Penal Code mentioned in the summons but also of all other offences, namely under Sections 379 and 427, Penal Code which would be made out if the facts alleged in the petition of complaint be established.
4. Section 403, Criminal p. C. which embodies the law on the principle of 'autrefois acquit' provides in its first clause not only that a personwho has been acquitted of an offence shall, so long such acquittal remains in force, not be liable to be tried again for the same offence, but provides further that he will not be tried on the same facts for any other offence for which a different charge might have been made under Section 236,or for which he might have been convicted under Section 237.
5. The second sub-clause of the section provides that a person acquitted of any offence may beafterwards 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).
6. As has been pressed by Mr. Mukherjee thisjsecond sub-section takes away materially from theprotection afforded by the principle of autrefoisacquit to persons from improper harassment. Inspite of this, we cannot ignore the provision whichthe Legislature in its wisdom thought fit to enact.There can be no doubt about the intention of thelegislature that in spite of the harassment thatmight result from such fresh trial, fresh trial foran offence for which a separate charge might havebeen made in the first trial under Section 235 (1) shallbe allowed in law.
Section 235 (1) is in these words :
'If, in one series of acts so connected togetherto form the same transaction, more offencesthan one are committed by the same person, hemay be charged with, and tried at one trial for,every such offence.'
Clearly in the circumstances of the present case the accused may have been charged at the very first trial for offences under Sections 379 and 427, Penal Code. I cannot, therefore, see any escapefrom the position that Rash Behari and Bhakat though they were tried on the allegation of the same facts for an offence under Section 447, Penal Code are liable to be tried again for charges un-der Sections 379 and 427, Penal Code.
7. As regards Satish Chandra Mukherjee, I amof opinion that he cannot be said to have been tried at all in the first trial. No summons was issued against him and the mere fact that he was mentioned in the petition of complaint as one of the accused persons, does not, in my judgment produce the consequence that he was tried.
8. I would accordingly discharge the rule.
Debabrata Mookerjee, J.
9. I agree.