( 1 ) THIS is an application under Section 561-A, Cr. P. C. in which it is prayed that the proceedings in the Sessions Trial No. 52/1 of 1953 may be quashed as the applicant has been acquitted and unless a fresh commitment is made the trial cannot proceed.

( 2 ) THERE are two aspects which have been presented before met. The first contention has been that when the original commitment was made, the trial Court amended the charge and prosecuted the applicant only for a specific period and this amounted to his staying the prosecution of the applicant in respect of the other period and on a correct interpretation of Section 240, Cr. P. C, this stay amounts to an order of acquittal, The other, contention advanced before me is that this second prosecution is now sought to be revived after a lapse of more than 2 1/2 years and this amounts to a persecution and the Courts should not permit the prosecuting agency to persecute the applicant in this manner.

( 3 ) I will take up the first contention. When the Magistrate committed this case, he framed a charge and he stated in this charge that criminal misappropriation was committed by the applicant between October 1951 and March 1953 and the total amount of money which was criminally misappropriated was Rs. 16,904-6-0. The charge framed by the Magistrate was obviously defective for under the Criminal Procedure Code even after utilising the provisions of section 222 (2) a charge relating to a period of more than one year could not have been framed. The Sessions Judge therefore, had to amend this charge and he very rightly framed a charge relating to a period between 16-5-1952 and 6-4-1953. The result was that the total amount of misappropriated money also decreased from Rs. 16,904/-and odd annas to Rs. 8,319/- and odd annas. The applicant was convicted and sentenced to two years rigorous imprisonment and a fine of Rs. 8,000/-The Sessions Judge after convicting him in this case did not proceed to try the applicant for the misappropriation committed by him in the remaining period which was included in the charge framed by the Magistrate. The applicant went up in appeal, but his appeal was dismissed with the modification that the fine of rs. 8,000/- was reduced to a fine of Rs. 5,000/ -. The appellate Court dismissed this appeal on 12-7-1957. The trial Court had convicted him on 17-11-1955, and it was in May 1958 that the prosecuting agency again presented a petition before the Sessions Judge, Lucknow, that the applicant should be prosecuted for the misappropriation committed by him between October 1951 and May, 1952. The Sessions Judge granted this prayer and transferred this case for disposal to an Additional sessioas Judge. The applicant made a prayer before the Additional Sessions Judge that his prosecution will not be legal and, therefore it should be quashed. "the Additional Sessions Judge observed that the case has been transferred to him by the Sessions Judge and, therefore, he has no option, but to proceed with the trial of the case. The applicant then came up before this Court and presented this application.

( 4 ) IT would be seen from the history given above that after the applicant was convicted on, 17-11-1955, neither the Court tried the applicant nor the prosecution made any prayer that the applicant should be made to stand a second trial for the offence committed by him during that period which was not covered in the first trial. It is contended before me that an inference should be drawn from this conduct that both the Court and the prosecution were satisfied that the applicant has been adequately punished in the first trial and, therefore it was neither desirable nor necessary to proceed with the second trial. I am inclined to agree with this contention. The very fact that even after the appeal was dismissed by the High Court the prosecuting agency took ten months to file a fresh application indicates that it was at a very late stage that the prosecution decide