HIRA LAL AHIR Vs. EMPEROR

JUDGEMENT

(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 31 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 12 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 Secs.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).