1. This was a Rule calling upon the District Magistrate of Patna to show cause why the further trial of the petitioner in the Court of Session on charges of cheating should not be quashed on the ground that there has been no commitment to the Court of Session on these charges; secondly, why the accused should not be acquitted of the third charge framed against him before the Sessions at the last trial on the ground that the Public Prosecutor withdrew from a part of the charge; and, thirdly, why the proceedings should not be quashed on the ground that they were instituted in an illegal and improper manner by the Jail authorities.
2. We think that the Rule must succeed on the first ground. But before passing orders upon that, we will briefly deal with the other two grounds. It appears as regards the second ground that the learned Judge did not allow the Public Prosecutor to withdraw, and the rather knotty question which arises upon this part of the Rule need not, therefore, be considered; and as regards the third point, we find on reference to the Jail Code that Section 61 refers exclusively to departmental enquiries with a view to dismissal, and proceedings here were properly instituted before the Police and that there was no want of jurisdiction.
3. Coming now to the first point, we think that the learned Judge having thrown out the charge under Section 409 on the ground that it should have been brought under Section 420 and directed that separate trial should take place has ousted his jurisdiction. He, no doubt, could have amended the charge to one under Section 420 and he might then well have directed that that charge should be put before the Jury at a separate trial. But having taken the charge as it was committed to him and not amended it and having left it to some subsequent proceeding, he will now have no jurisdiction to try the accused on any other charge except 409. We do not think that it would be fair to the accused to be arraigned on a charge which the Judge has already held to be untenable with a view to amendment being made in that charge subsequently.
4. The only way out of the difficulty, if the District authorities of Chapra should consider it necessary, is to have fresh enquiry and fresh commitment under Section 420. But having regard to the remarks of the Jury in delivering their verdict and the remarks of the learned Judge upon the merits of this trial, we think that the District Magistrate will be well-advised to stay his hand in this matter unless he has much stronger ground to go upon than anything which is at present put forward.
5. With these remarks, the Rule is made absolute on the first ground find further proceedings before the Sessions Judge of Patna will be stayed.