1. This Rule has been issued to show cause why the proceedings pending against the petitioner should not be quashed or why such other or further order should not be made as to this Court may seem fit and proper. The proceedings aforesaid are in connexion with a trial for an offence under Section 161/116, I. P. C, which is now pending in the Court of the Police Magistrate of Alipore and in which a charge in respect of that offence has already been framed. The facts necessary to be stated are the following:
2. In consequence of an occurrence which took place on 31st May 1933 two separate Police challans were sent up, by the Assistant Commissioner of Police to the Magistrate; one for an offence under Section 451, I. P. C, and Section 42, Prisons Act, and another under Section 161/511, I. P. C. The facts upon which these challans were sent up, shortly put, were that it was alleged that the accused had trespassed in the Presidency Jail in order to have communication with a prisoner and that thereafter he had offered a bribe to a European warder of the said Jail. The case started on the former challan was taken up first while the case which was started upon the latter challan was adjourned sine die. It is stated in para 12 of the petition upon which this Rule has been issued that the Assistant Commissioner of Police, who represented the Crown before the learned Additional District Magistrate at a stage when a question of transfer of these oases or one of them was pending before him, had clearly and frankly admitted before him that the latter case, namely the one under Section 161/511, I. P. C. would not be proceeded with, if the other case, namely the one under Section 451, I. P. C, and Section 42, Prisons Act, resulted in an acquittal of the petitioner. The latter case was then proceeded with, and in the result the petitioner was acquitted by the Magistrate, who tried it, by a judgment dated 12th July 1933. It appears that thereafter when the present case was about to be proceeded with, an application was made to the District Magistrate for quashing the proceedings in this case but the advocate who represented the petitioner in these proceedings eventually said that he did not want to press the application at that stage. The case thereafter was proceeded with and ultimately a charge was framed against the accused under Section 161/116, I. P. C, as already stated. It was at this stage that the present Rule was obtained.
3. Upon the arguments that have been addressed to us by Mr. Chowdhury who has appeared in support of the Rule, the case is to be approached from two points of view: Firstly, as a case in which in view of the provisions of Section 403, Criminal P. C, and also upon general principles irrespective of the said provisions, whether the present trial should be allowed to be proceeded with having regard to the fact that in the case there has been an acquittal as already stated ; and secondly, the question will arise whether in view of the statement contained in para. 12 of the petition, to which reference has already been made, this trial on the present charge be allowed to be proceeded with any further. So far as the first of these matters is concerned, it is prefectly clear to us that having regard to the nature of the allegations upon which the two cases were started, it was quite open to the Court to regard all the three offences as committed in the same transaction and that if evidence was led in respect of all the matters concerned in the transaction, Section 235, sub-Section (1), Criminal P. C, would have justified in the other trial the framing of a charge under Sections 161 and 116, I. P. C, as a charge for a distinct offence to be tried along with the two offences for which that trial was being held. Clause (2), Section 403, Criminal P. C, says that
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, sub-Section (1).
4. Sub-Section (2), Section 403, Criminal P. C, therefore would enable the Court to hold a second trial in the case of this distinct offence, for which no charge was framed and which was hot tried in the previous trial. It has been argued by Mr. Chowdhury that the case comas under Sub-Section (1), Section 403, Criminal P. C, because in the previous trial evidence was led in respect of all the acts which are said to constitute an offence under Section 161/116, I. P. C., and a charge in respect of that offence could have been framed in that trial under Section 237, Criminal P. C. We need not consider the question whether these sections or any of them apply because, in our judgment, the clause itself can have no application to the present case. It may be pointed out that the evidence that was led in that case as regards the present offence was adduced, as appears from the judgment of the trial Magistrate in that case, for the purpose of proving the charges that were being tried in that case and the learned Magistrate dealt with that evidence in these words:
Evidence has been adduced to show that the accused in presence of P. W. 3 offered bribe to Mr. John when he was taken to the Presidency Jail. I understand it is the subject matter of a separate case against the accused now pending before the Suburban Police Magistrate, Alipore. The offer of bribe is certainly a criminal offence. Does such offer prove that the accused is guilty of the offences with which he has been charged in this case. I do not think it always does. An innocent man may offer bribe to a public servant 1934 C/31 & 32 and to save himself from an awkward situation involving worries and troubles.
5. It is clear therefore that although evidenoe with regard to this distinct offence was led in the other trial the Court did not consider the question of the accused's guilt or innocence in respect of this offence because that question was ex pressly reserved for a separate trial. In such circumstances, even though Section 236 or Section 237, Criminal P. C, might apply, the provisions contained in Section 403, Sub-Section (1) are not applicable. In the words of the sub-section it may be said that no charge in respect of the present offence might have been made and the accused could not be convicted of the present offence, because of that express reservation. The general principle of autre fois acquit is also inapplicable because the fact that the accused was acquitted in the previous trial does not necessarily mean that the present offence was not committed.
6. So far as the other matter is concerned, it depends entirely upon an alleged understanding between the Assistant Commissioner of Police who represented the Crown in the Court of the District Magistrate and the petitioner. The understanding is now denied on behalf of the Crown by the learned Deputy Legal Remembrancer who has appeared to show cause in this Rule. It is an understanding which is not possible for this Court to enforce except on the ground that the ends of justice would not require the continuance of the present trial. We have considered the circumstances of the case, and while we have not formed any opinion as regards the guilt or innocence of the accused, we think we should say that the circumstances which disinclines us to interfere with the proceedings now is the fact that a charge has already been framed. Without expressing any opinion on the merits therefore we find ourselves unable to say that the ends of justice require that the proceedings should be interfered with at this stage. Upon the aforesaid grounds, we think that the Rule should not be made absolute and we accordingly order that it be discharged.