REX Vs. ARUMUGAM

JUDGEMENT

(1.) The accused in this case is charged with having committed the offence of grievous hurt under Section 326 of the Indian Penal Code by stabbing one Ganesan on the night of the 17th November, 1942. Ganesan died as a result of the stab, and this is the third occasion on which the accused has appeared in the dock at the High Court Sessions. He was first charged with the murder of Ganesan at the first sessions of the present year before Bell, J., and the jury returned a verdict of not guilty by a majority of 6 to 3. The case was ordered to be retried upon the same charge of murder. At the conclusion of the second trial the jury returned a verdict of guilty of causing grievous hurt by 5 to 4. The learned Judge, who again was Bell, J., ordered that the accused be kept in custody and be retried at the next sessions and he added " Having regard to the jury's verdict, he should be tried only under Section 326, having been acquitted under Section 302.

(2.) A preliminary objection to the maintainability of the trial has been made on behalf of the accused at the commencement of to-day's proceedings. It is argued that he cannot be tried again even under the present charge according to the provisions of Section 403 of the Criminal Procedure Code. It is, of course, not asserted thathe has in fact been acquitted by any jury of the offence of causing grievous hurt, but it is argued that the language of Section 403(1) will apply nevertheless to the facts of the present case. If at the previous trial the accused had been convicted under Section 326, that would have been by virtue of the provisions of Secs.236 and 237 of the Code, and Section 403 prohibits the further trial of a person not only on a charge on which he has been actually convicted or acquitted but also upon any other charge which might have been made against him under Section 236 or for which he might have been convicted under Section 237. The answer to this objection on the part of the learned Crown Prosecutor is that Secs.236 and 237 do not apply, and that if the accused had been convicted at the previous trial of an offence of causing grievous hurt, that would have been justified by the provisions of Section 238. It seems to me that the essential question, therefore, for decision is whether a conviction under Section 326 of the Indian Penal Code at the previous trial would have resulted from the application of Section 237 or 238. If the former, then the accused cannot be tried under the present charge; if the latter, then there is no impediment against his trial.

(3.) There is no direct authority, so far as the cases have been brought to my notice, on this point; but in circumstances which are almost precisely similar, Mirza, J., in Emperor V/s. Abla Isak (1931) I.L.R. 55 Bom. 520 has held that Section 403 applies. He is dealing with a case which may be either murder or culpable homicide not amounting to murder, but does not directly discuss the applicability of Secs.236, 237 and 238. The main part of the judgment in fact is taken up with reasons for distinguishing a Calcutta Case which had been cited before him, Emperor V/s. Nirmal Kanta Roy (1914) I.L.R. 41 Cal. 1072. That is admittedly a case in which there had originally been an alternative charge, and it was held that so long as the jury had not brought in a satisfactory verdict in regard to that charge, the ordering of a retrial was merely the equivalent of the continuation of the original trial on the original charge. In Emperor V/s. Abla Isak (1931) I.L.R. 55 Bom. 520 however, there was no such alternative charge actually framed, and the same is true of the present case.