In Re: Venkataranga Josiar

In this case the first point for consideration is whether the charge u/s 409 of the Penal Code against the accused Venkataranga Josiar can be proceeded with inasmuch as he had been previously tried by a Magistrate with second class powers upon the same facts for an offence u/s 406 of the Penal Code and acquitted.

We think Section 403, Sub-section 4, Criminal Procedure Code, applies; it states that, if a person has either been acquitted or convicted of an offence but the same facts disclose an offence which could not be tried by the first Magistrate, then the previous acquittal or conviction is no bar to further proceedings for a more serious offence. The words of the Sub-section are ""A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried, was not competent to try the offence with which he is subsequently charged."" Then the illustrations (f) and (g) make it perfectly clear that if the subsequent charge is with relation to an offence which the first Magistrate could not try, then the previous order of acquittal or conviction with respect to the minor offence for which the accused has already been tried, is no bar to subsequent proceedings.

In the exercise of our powers of revision and for other reasons we quash the proceedings.