S. 403(1), Cr. P.C. does not bar the separate trial and conviction of an accused for a distinct offence which could have been tried and convicted in the previous trial itself under S. 235(1), Cr. P.C.

ORDER :- This revision is against the judgment of the appellate Magistrate of Cuttack maintaining the conviction of the petitioners under S. 352, I.P.C. under the following circumstances.

2. On 14-6-1951, a police constable (P.W. 6) went to village Dihapahalo where the parties reside, with a view to serve a notice under S. 144, Cr. P.C., on the petitioners directing them not to enter into the disputed house or to interfere in any way with its possession by Chanda Bewa (opposite party). It was alleged that though the notice was shown to the petitioners, they disregarded the order contained in the notice, forcibly dragged out Chanda Bewa from the house and locked it up.

After due enquiry, the Magistrate concerned, filed a complaint for the prosecution of the petitioners under S. 188, I.P.C., for disobedience of his order under S. 144, Cr. P.C. That case ended in acquittal on 26-2-53 in the Court of a First Class Magistrate, Cuttack. Then a complaint was filed by Chanda Bewa against the petitioners for offences under Ss. 448, 341 and 352, I.P.C., in respect of the same incident.

A separate complaint case was started on the basis of that complaint and tried by Shri M.N.L. Sarma, Magistrate Second Class, Cuttack. He convicted the petitioners under Ss. 352 and 341, I.P.C. On appeal, however, the appellate Magistrate held that the conviction under S. 341, I.P.C. could not stand in view of S. 403(1), Cr. P.C., inasmuch as the petitioners could have been validly cried for that offence in the first trial itself, bearing in mind the provisions of Ss. 233 and 237, Cr. P.C.

But he thought that the separate trial and conviction of the petitioners for the offence under S. 352, I.P.C., namely, use of criminal force on Chanda Bewa, was legal and therefore refused to interfere with the conviction though he reduced the sentence of fine to a lesser sum.

3. The main point urged by Mr. K.N. Das on behalf of the petitioners was that the separate trial and conviction of the petitioners for the offence under S. 352, I.P.C., was also hit by S. 403(1), Cr. P.C. In support of his contention he relied on Manhari Chowdhuri v. Emperor, 1918 Cal 406 (AIR V 5) (A). I am however unable to accept his argument.

4. The first trial was in respect of an offence under S. 188, I.P.C., which is triable as a summons case. The offences under Ss. 352 and 341, I.P.C., are also triable as a summons case. Though in a summons case there is no formal charge, it is now well settled that the accusation made against the accused and intimated to him during his examination under S. 242, Cr. P.C., takes the place of a formal charge. It is also well settled chat the principles of Ss. 233 to 239, Cr. P.C. apply not only to warrant cases, but also to summons cases. See King Emperor v. San Dun, 2 Cri LJ 739 (FB) (B) and Emperor v. Amolak Mulchand, 1933 Nag 368 (AIR V 20) CC).

5. Sub-Ss. (1) and (2) of S. 403, Cr. P.C., which are relevant for the point under discussion are as follows :

"(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 Section 236, or for which he might have been convicted under S. 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under S. 235, Sub-S. (1)."

Sub-Section (1) says that if a person has been once tried for an offence, he shall not be liable to be tried again on the same facts, for any other offence for which a different charge from the one made against him might have been made under S. 236, Cr. P.C., or for which he might have been convicted under S. 237, Cr. P.C.

Sub-Section (2) however says that a person acquitted