A defendant may be retried for a new offense if the consequences of the original act change, even after a guilty plea to lesser charges.

ORDER

Petitioner was tried by Judicial First Class Magistrate-I, Palakkad in C.C.No.189/2007 for the offences under Sections 279, 337 and 338 of Indian Penal Code. Prosecution case was that on 16.11.2006 at about 10.30 p.m., petitioner drove tourist bus KL- 25/369 in a rash and negligent manner so as to endanger human live through Thrissur-Palakkad National Highway and when reached at Kuppukad in Kuzhalmannam Panchayat, the bus hit against motor cycle KL-9/K 5294, driven by Sajithchandran and caused grievous hurt to his head and right thigh and petitioner thereby committed the offences under Sections 279, 337 and 338 of Indian Penal Code.

2. As is clear from Annexure-I judgment, when particulars of the offences were read over and explained to the petitioner, he pleaded guilty and recording that pleading guilty was voluntary and with the knowledge of the consequences, learned Magistrate convicted him for the offences under Sections 279, 337 CRMC 2961/09 2 and 338 of Indian Penal Code and sentenced to imprisonment till rising of court and a compensation of Rs.3,500/- to the injured under Section 357(3) of Code of Criminal Procedure.

3. The injured was, in fact, originally discharged from the hospital on 31.3.2007. Annexure-I conviction was on 11.10.2007. Later, the injuries got aggravated and he was again admitted in the hospital and died from the hospital on 14.12.2007. Police, thereafter, laid Annexure-III final report for the offences under Sections 279 and 304A of Indian Penal Code, which was taken cognizance by the learned Magistrate. According to the prosecution, the injured Sajithchandran died consequent to the injuries sustained in the accident and therefore, petitioner also committed the offence under Section 304A of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings, taken cognizance under Annexure-III final report, contending that in view of Section 300 of Code of Criminal Procedure, petitioner cannot be prosecuted again for the offences in respect of the same incident. It is contended that petitioner had pleaded guilty, as the offences were CRMC 2961/09 3 only under Sections 279, 337 and 338 of Indian Penal Code and if he is to be prosecuted for the offence under Section 304A of Indian Penal Code, it will prejudice the petitioner, as he had already pleaded guilty.

4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard.

5. Learned counsel appearing for the petitioner pointed out that the substantive sentence provided for the offences under Sections 338 and 304A of Indian Penal Code is the same and the only difference is that of fine and the fine for the offence under Section 304A is not limited as in the case of Section 338 of Indian Penal Code and when petitioner was tried and on his pleading guilty, he was already convicted and sentenced, he cannot be prosecuted for the offence under Section 304A of Indian Penal Code in respect of the same incident and that too on the same allegations. Learned counsel further submitted that even if it is found that prosecution for the offence under Section 304A of Indian Penal Code is maintainable, irrespective of pleading guilty earlier, petitioner is to be permitted to defend the case, raising all the available CRMC 2961/09 4 contentions.

6. Learned Public Prosecutor pointed out that under Section 300 of Code of Criminal Procedure, second prosecution is barred, only if petitioner was tried and convicted or acquitted for the offence or could have been tried and convicted or acquitted for another offence, though charge is not framed and when the injured was alive on the date when learned Magistrate has taken cognizance and petitioner pleaded guilty and he was convicted and sentenced, he could not have been prosecuted for the offence under Section 304A of Indian Penal Code and therefore, the bar provided under Section 300 of Code of Criminal Procedure is not applicable. It is also submitted th