BALCHAND RAM Vs. EMPEROR

JUDGEMENT

(1.) By this application the petitioner asks this Court to quash his prosecution under Section 29, Police Act. The facts are these: On a certain night the petitioner was on the sentry duty at the Kotewali Police Station of Bhagalpur. It was alleged that another constable Krit Nath Jha brought a certain man in his custody and made him over to the petitioner from whose custody the prisoner escaped. On these facts the petitioner was tried under Section 223, I.P.C. and Section 29, Police Act. The charge under the first head was that he negligently suffered the prisoner to escape from confinement and under the second head ( Section 29, Police Act) it was alleged that he wilfully violated his duty in not keeping the said prisoner in his custody.

(2.) The petitioner was acquitted. Now he is being prosecuted for violating another departmental rule, namely, Rule 77(c) of the Police Manual which requires a sentry on night duty to rouse the night officer for public service. The gravamen of the charge in the second trial is that when a prisoner was brought in custody it was the duty of the sentry the (petitioner) to rouse the night officer. An objection was raised to the second trial on the ground of autrefois acquit ( Section 403, Criminal P.C.). The objection was overruled, and an application for revision to the Sessions Judge was rejected. The petitioner has moved this Court.

(3.) In my opinion the principle of Section 403, Criminal P.C. can in no sense be applied to this case. The previous trial was in respect of one act and one act only, namely, for not keeping the prisoner in custody or suffering him to escape. Though two different charges were framed, in fact there was a single act of omission. It had nothing whatsoever to do with the omission which is the subject-matter of the present charge, namely, the omission to rouse the night officer. Not keeping a prisoner in custody or suffering him to escape is in no way connected with this alleged failure of the petitioner to rouse the night officer when public service required it. My attention has been drawn to the case of Maksudan Mistri v. Emperor AIR 1921 Pat 22 in which a learned Judge of this Court held that acquittal for rash and negligent driving of a car precludes trial for driving the car without a license.