Maksuddan Histry vs Emperor

Jwala Prasad, J.—The Rule must be made absolute. The petitioner was tried for an offence u/s 338, Indian Penal Code on a charge of having caused grievous hurt to the driver of an ekka and its occupants by rashly driving a motor ear. He was convicted by the Magistrate, but on appeal was acquitted by the Sessions Judge on the ground that "there was no direct evidence to prove that the accused drove the car."

The petitioner has now been summoned u/s 16 of the Motor Vehicles Act (VIII of 1914) for driving the car without a license at the time when the incident, in respect of which he was tried and acquitted, happened. The question, therefore, for determination in the present proceeding under the Motor Vehicles Act against the petitioner is the same as was in the criminal trial u/s 338, Indian Penal Code. This is conceded. The Magistrate also in his explanation admits it.

It will thus appear that the petitioner is now called upon to be prosecuted on the same facts which were investigated into in the former trial. The charge under the Motor Vehicles Act could very well have been framed in the former trial either as a substantive one or, in the alternative, u/s 236 of the Code of Criminal Procedure. He could also have been convicted u/s 16 of the Motor Vehicles Act when he was tried for the offence u/s 338, Indian Penal Code (vide Section 237 of the Code of Criminal Procedure).

It would thus appear that Section 405 of the Code of Criminal Procedure bars the trial of the petitioner for an offense u/s 16 of the Motor Vehicles Act so long as the acquittal u/s 338, Indian Penal Code on the same facts remains in force. The principle of autrefois acquit does clearly apply to the present case. The petitioner cannot be tried a second time on the same facts cognate to, or involved in the offence with which he was previously charged.

In the case of Manhari Chowdhury v. Emperor 43 Ind. Cas. 614 : 22 C.W.N. 199 : 19 Cr. L.J. 198 : 27 C.L.J. 434 : 45 C. 727 it was held that the acquittal of the petitioners under Sections 380 and 411, Indian Penal Code was a bar to their prosecution under the cognate Section 54(a) of the Calcutta Police Act. Section 403 of the Code of Criminal Procedure was applied in that case. The principle of that case can very well be applied to the present case.

The learned Magistrate in his explanation says that the Court Inspector is about to adduce additional evidence to show that the petitioner was driving the car. If that is no reason for trying him again for the offence u/s 338, Indian Penal Code of which he has been acquitted, it cannot be a ground for trying him for the cognate offence u/s 16 of the Motor Vehicles Act.

It, however, appears from the judgment of the learned Sessions Judge that the witnesses examined on behalf of the prosecution made a different statement altogether to what they had made on the question in issue before the Police and that was a good reason for disbelieving the witnesses.

Again, it was in evidence that there were two persons occupying the front seat and the learned Sessions Judge accordingly observed as follows: It cannot, therefore, be safely inferred whether the accused was occupying the right hand seat, i.e., the seat of the driver, or that he was on the left side of the driver."

The evidence was thoroughly gone into in, that case, and I do not think that the prospect of getting additional evidence is a ground for overriding the principle of autrefois acquit In the case of Manhari Chawdhury v. Emperor 43 Ind. Cas. 614 : 22 C.W.N. 199 : 19 Cr. L.J. 198 : 27 C.L.J. 434 : 45 C. 727 no doubt there was nothing to show that additional evidence was available, as was mentioned in the judgment, but that fact to my mind is irrelevant, for the application of Section 403 does not depend upon additional evidence being available or not, and, as a matter of fact, that point has not been decided in that case. Authorities are numerous on the subject. I need not, however, refer to them vide Emperor v. Mian Jan A.W.N. (1908) 22 : 3 Cr. L.J. 207 : 28 A, 313; Emperor v. Sonalal 20 Ind. Cas. 613 : 37 B. 658 : 15 Bom. L.R. 694 : 14 Cr. L.J. 453. Section 403 goes to the root of the jurisdiction to take cognizance of an offence so long as acquittal or conviction in a previous trial on the same facts, though of a different offence, remain in force. If Section 403 does not apply, then there will be no bar to the trial whether additional evidence is available or not. In the present case, as held above, Section 403 does apply and is, therefore, a complete bar to the criminal proceedings under the Motor Vehicles Act now instituted against the petitioner.

For these reasons, the order of the Magistrate summoning the petitioner and the proceeding started in consequence thereof are set aside.