An acquittal under S. 256 of the Cr. P. C. is a bar to a fresh trial under S. 300 of the Cr. P. C.

This Rule was obtained in respect of an order dated 14th July, 1976 passed by the Sub-divisional Judicial Magistrate, Kalna rejecting an application of the petitioners for their discharge from the prosecution in Case No, CR. 110 of 1976 and the proceeding thereon. It appears that on 28th December, 1974 a criminal case being C. R. Case No. 405 of 1974 was started in the court of the Sub-divisional Judicial Magistrate, Kalna, against the accused petitioners on the complaint of the opposite party No. 1, Paresh Kumar Roy, under Ss. 323, 504 and 448 of the I. P. C. On 9th March, 1976 the complainant was absent and the learned Magistrate passed an order acquitting the accused persons under S. 256 of the Cr. P. C-No step was taken to set aside that order of acquittal. On 29th March, 1976 the complainant filed a fresh petition of complaint stating the same facts which he had stated in the previous complaint. It was a verbatim copy of the earlier complaint without even the necessary correction to bring it upto date, The accused petitioners were summoned under Ss. 323 and 504 I. P. C. and they made an application for dismissal of the case in view of the previous order of acquittal. The said application was rejected On 14th July, 1976 occasioning the present Rule.

2. Mr. Mihir Roy, learned advocate appearing in support of the Rule, contended that S.300 of the new Cr. P. C. was a complete bar to a fresh trial. Sub-secs. (1) and (5) of S.300 run as follows.

"300. Person once convicted or acquitted not to be tried for same offence.-

(1) 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 sub-sec. (1) of S. 221, or for which he might have been convicted under sub-sec, (2) thereof.

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(5) A person discharged under S. 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate",

This S. 300 corresponds to old S. 403 of the earlier Cr. P. C. This is based on the well known principle that no man's life or liberty should be twice put in jeopardy for the same offence on the same set of facts. Some of the decisions of this Court and of other courts on which reliance was made by Mr. Roy clearly support his contention. In the case of Sukum Ram Koch v, Krishna Deb Sarma, reported in (1929) 33 Cal WN 260 : (30 Cri LJ 585) it was held that the previous case having ended in acquittal the accused could not, so long as the order remained in force, be prosecuted again in the same set of facts. The case of Bhupati Bhusan Mukherjee v. Amio Bhusan Mukherjee, reported in (1935) 39 Cal WN 919 : (36 Cri LJ 1238) considered this question in some detail and it was specifically held by Lord Williams J. sitting in Division Bench that the procedure under S. 247, at whatever stage of the proceedings it may be applied is a trial within the meaning of S. 463 (now S. 300). In that case, the facts were similar to the present case. As the complainant was found absent and no step was taken in the matter, the accused were acquitted under Section 247 Cr, P. C. (corresponding to S. 256 of the new Code). Without getting the above order of acquittal set aside by a competent court the complainant filed a fresh petition of complaint on the same facts before the same Magistrate who once again summoned the accused. It was noted, inter alia, that the definition of trial in the Code of 1872 was omitted in the Code of 1898. It was further observed that the trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused. To quote Rankin, C. J. in the case of Sudhindra Kumar