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Criminal Miscellaneous No. 5540 of 1967, decided on 18^th December 1968.

S. 403(1) read with penal Code (XLV of 1860), Ss.307/34 & 325/34‑Facts of offences under Ss. 307/34 & 325/34, P. P. C. identical‑‑Accused charged under S. 325/34 acquitted‑‑District Magistrate allowing revision petition, on ground that accused should be charged under S. 307/34, and ordering fresh inquiry‑Accused, held, could trot be tried again for another offence based ova same facts.

Emperor v. John Melver A I R 1936 Mad. 353 ref.

Raja Muhammad Akram for Petitioners.

Rana Maqbool Ahmad for the State.

Sher Muhammad and Ghulam Muhammad petitioners along with their father Mehr Khan were convicted under section 307/34, P. P. C. and sentenced to three years' rigorous imprisonment each on 27th January 1965. The learned Sessions Judge, Ralwalpindi vide his order dated 25th February 1965 set aside the convictions, and sentences of the petitioners and remanded the case back for retrial. The Magistrate on 2nd March 1966, again convicted the petitioners under section 307/34, P. P. C., and sentenced each of them to three years' rigorous imprisonment, with a fine of Rs. 50.00, or in default to further undergo rigorous imprisonment for four months. The learned Sessions Judge vide his order dated 5th October 1966, again set aside the convictions and sentences of the petitioners and remanded the case back to the Magistrate for retrial. The Magistrate vide his order dated 27th April 1967 framed charges against the petitioners under sections 325/34 and 323/34, P. P, C. The offence under section 323, P. P. C. is compoundable while the offence under section 325 is compoundable with the permission of the Court. Therefore Muhammad Khan, complainant, who was injured, put in an application under section 345, Cr. P. C. for permission to compound the offence under section 325/34, P. P. C. The trial Magistrate vide his order dated 29th April 1967 allowed the application and acquitted the petitioners. On 22nd July 1967, a revision petition was filed against that order praying that the charge should have been framed against the petitioners under section 307/34, P. P. C., which the Magistrate had omitted to frame. This revision came up before the learned Additional Deputy Commissioner (General) to whom the powers of a District Magistrate had been given by a notification. He vide his order dated 28th November 1967, accepted the revision petition, set aside the impugned order and referred the case back to the Magistrate for fresh inquiry. Aggrieved by that order the petitioners have preferred this revision.

2. The learned counsel for the petitioners contended that the order of acquittal dated 29th April 1967 operated as a bar to further prosecution on the same facts even if a different charge could possibly be made out. In this connection he referred me to section 403(1), Cr. P. C. which reads as follows:‑

"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237."

The facts of the offence under section 325/34, P. P. C. of which, the petitioners were previously acquitted by reasons off compounding are identical with the facts for an offence under section 304/37, P. P. C. which the Magistrate is alleged to have, omitted. The language of section 403 (1), Cr. P. C. is absolutely clear and the petitioner could not be tried again for another, offence based on the same facts. I am fortified in this view by a case Emperor v. John Melver (A I R 1926 Mad. 353).

3. In the result I accept the revision, set aside the order of the learned Additional Deputy Commissioner (General) dated 20th November 1967, and quash proceedings pending in the Court of the trial Magistrate.

Revision accepted.

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