S.R. Das Gupta, J.
1. This is an application for revision of an order passed by a learned Sessions Judge affirming the order of the Sub-Divisional Officer and a Magistrate, First Class, Chinsurah, issuing process under Section 323, Penal Code, against the petitioners.
2. The matter arises in this way. On 4-6-1951 one Golap Hizra filed a petition of complaint before the Sub-Divisional Officer, Hooghly. The allegations in the petition of complaint are as follows : On 29-5-1951 the complainant was requested by some of the accused to attend a 'salish' to have a case, pending in the criminal court of Alipore between Kanai and himself, compromised. As such on that date the complainant proceeded from Howrah to Baidyapur by train to attend this 'salish'. While he got down from the compartment of the train at Bandel station all the three petitioners hit the complainant with an iron rod, brickbat and a broomstick. On this complaint a process was issued by the Sub-Divisional Officer, Chinsurah, before whom the complaint was made, and the petitioners were summoned under Section 352, Penal Code, and the case was fixed for examination of the complainant on 3-7-1951. On that date, that is on 3-7-1951, the complainant did not turn up and thereupon the learned Magistrate directed the accused to be acquitted under Section 247, Criminal P. C.
Thereafter on 4-7-1951 another complaint was made on the self-same facts on which the previous complaint was made and his plea was that when the case was called on, on the previous day, he had just been away from the court premises and he asked for process against the accused. That petition came up for hearing before Mr. N.R. Banerjee, Magistrate, Chinsurah, who was at that time taking the files of the Sub-Divisional Officer. He examined the complainant, but in his opinion a complaint was made on the same occurrence as was filed before the Sub-Divisional Officer on 4-6-1951 and on which the accused were summoned under Section 352, Penal Code, and subsequently acquitted under Section 247, Criminal P. C., and the present complaint was a duplication of the Complaint dated 4-6-1951 and cannot be entertained according to law. He however did not make any order but put up the matter before the Sub-Divisional Officer for his orders. The learned Sub-Divisional Officer on 9-7-1951 took a rather strange view of this matter. Although the 'previous complaint was dismissed and the accused was acquitted, yet he held that in the previous case process had been wrongly issued under Section 352, Penal Code, and that it should have been issued under Section 323, Penal Code, and he consequently issued a process on the self-same facts under Section 323, Penal Code.
3. Against that order of the learned Magistrate the petitioners preferred an appeal to the Sessions Judge, but the learned Sessions Judge took the view that the order of the learned Magistrate was in order and he affirmed it. The petitioners have made the present application before us in revision against the said order of the learned Sessions Judge affirming the order passed by the Sub-Divisional Officer, Chinsurah.
4. It seems to us that both the learned Magistrate and the learned Sessions Judge have taken an entirely erroneous view of the matter. The petitioners were acquitted under Section 247, Criminal P. C., which provides :
'If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.'
5. The Sub-Divisional Officer, Chinsurah, purported to act under this section and the complainant not having been present, he acquitted the accused. But once an accused is acquitted he is not lirble to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, Criminal P. C. or for which he might have been convicted under Section 237, Criminal P. C. This is laid down in Section 403, Criminal P. C. Section 403 provides as follows:
'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 offence 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.'
Sections 236 and 237, Criminal P. C. provide as follows :
Section 236 : 'If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.'
Section 237 : 'If, in the case mentioned in Sec. 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of, the offence which he is shown to have committed, although he was not charged with it.
2. When the accused is charged with an offence, he may be convicted of having attempted to commit that offence, although the attempt is not separately charged.'
6. In this case the facts on which the two petitions of complaint were presented are identical. When the first petition of complaint was presented process was issued under Section 352, Penal Code. It appears to us that on those facts process might have been issued and the petitioner might have been charged for an offence under Section 323, Penal Code. It also appears to us that the facts alleged in the said two petitions of complaint make it doubtful which of the said offences namely Section 352 and/ or Section 323 the facts when proved will constitute. In our opinion he might have been charged either under Section 323 or Section 352 or both or in the alternative. In this case, as I have indicated, the same facts have been alleged in both the petitions of complaint and the matter clearly falls under Section 236, Criminal P. C. That being so, under Section 403, Cr. P. C., no fresh processes could be issued against the petitioner under Section 323, Penal Code, on the second petition of complaint. In the case, of -- 'Kaptan v. G. M. Smith', 16 WR Cr 3, a Bench of this Court has also held that a person tried and acquitted on a charge of using criminal force under Section 352 cannot be tried in respect of the same criminal matter on a charge of hurt.
7. It appears that the learned Sub-Divisional Officer as well as the learned Sessions Judge have taken the view that the acquittal as contemplated in Section 403, Criminal P. C., means an acquittal after a trial. In other words, the view they have taken is that an acquittal on a preliminary ground would not bar a fresh trial under' S, 403, Criminal P. C., on the same facts or for the same offence. In our opinion that view is entirely erroneous and is contrary to the definite views which have been expressed in this Court in two decisions: one in the case of -- 'Suku Ram. Koch v. Krishna Dev Sarma', 33 Cal WN 260 and the other in the case of -- 'Bhupati Bhusan v. Amio Bhusan', 39 Cal WN 919. In those cases, their Lordships have made it perfectly clear that an acquittal under Section 247,1 Criminal P. C., is an acquittal which would bar a further trial under Section 403, Criminal P. C.I Lort-Williams J., has further observed that the procedure under Section 247, at whatever stage of the proceedings it may be applied -- whether; before or after the summons has been served! or the accused has appeared or the particulars' of the offence have been stated to him -- is a 'trial' within the meaning of Section 403, Criminal P. C. There seems to us to be no room for doubt that that is the position both on the plain meaning of the Section 403 as also on the authority of the two decisions to which I have just now referred.
8. It is difficult to see how the Sub-Divisional Officer or the Sessions Judge could come to a contrary conclusion.
9. In our opinion, therefore, the proceedings which have been started as a result of the fresh petition of complaint made on 9-7-1951 cannot go on and must be quashed.
10. The result, therefore, is that the Rule is made absolute and the proceedings before the Sub-Divisional Officer, Chinsurah should be quashed. The petitioners, if on bail will be released from their bail bonds.
11. I agree.