CHELLIAH SERVAI Vs. STATE

JUDGEMENT

(1.) IN In re Appanna, 1947 M. W, N. (Or.) at p, 101 : A. I. R. (35) 1948 Mad. 96: 49 Cr. L. j. 36),horwill and Shahabuddin JJ. have held that when a person is charged and tried for an offence under Section 396, Penal Code, he can be validly and legally convicted of a minor offence under Sections 395 and 397, Penal Code, even though the offence under Section 396, Penal Code was triable with the aid of assessors and that under Section 395, Penal Code or Section 397, Penal Code only with a jury. In my opinion an offence under Section 395 or Section 397, Penal Code is a minor offence within the meaning of Section 238, Criminal P. C. , when considered in relation to an offence under Section 396, Penal Code. Such being the case, the accused who already had the benefit of acquittal for an offence under Section 396, Penal Code on the same set of facts cannot now be tried and convicted for an offence under Section 395 or Section 397, Penal Code. Section 403, Criminal P. 0. is a bar to a fresh trial. The reference is accepted and the accused is discharged.

(2.) THIS conclusion will necessarily entail the opinion that the conviction of the others of the offence under Section 395 or Section 397, on the second trial is illegal. The attention of the Provincial Government will be drawn to the circumstances for appropriate action under Section 401, Criminal P. C.