IN RE: KUNJU IYER Vs. STATE

JUDGEMENT

(1.) THE petitioner was convicted by the joint Magistrate of Pollachi for an offence punishable under Section 409 of the Indian Penal Code. On appeal the learned Sessions Judge was of opinion that the facts alleged did not constitute an offence punishable under Section 409 and accordingly acquitted the petitioner but directed that the papers be sent to the lower Court for a charge being framed' under Section 420 and evidence being let in. It is urged before me that the proceedings should be quashed in view of the provisions of Section 403 of the Code of Criminal Procedure. Sub -section (1) of that section runs thus:

(2.) MY attention is drawn to the decision in Rex v. : (1936)70MLJ635 . But that case has no application to the facts of this case, at any rate, that case can be distinguished from the present case. In that case there was an acquittal by reason of compounding and the matter rested there. It was taken in appeal and the appellate Court confirmed the order and it did not interfere. But after having accepted the acquittal, the Court directed on the same facts a prosecution for a different offence because that was prayed for in the original complaint. That was sought to be prohibited by Section 403 of the Code of Criminal Procedure, whereas in this case the case had not come to an end. The case ended in a conviction which was upset by the appellate Court. While acquitting the petitioner, the appellate Court acting under Section 237 observed that the alternative charge should be inquired into. I therefore do not think the decision in Rex v. : (1936)70MLJ635 applies to the facts of this case. In these circumstances I do not think I will be justified in interfering with the order of the appellate Court and quashing the further proceedings. The petition is dismissed.