One Bikam is said to have been murdered and his body was found in a tank. It is said that this fact was reported to this applicant Sarbekhan Gohain who, as principal Government Revenue Collector of the locality, was bound to give Information of the alleged murder. He was prosecuted under secs. 201 and 202, I.P.C, before the Sessions Court and when the persons accused of murder were acquitted, the charges against this applicant were withdrawn and he was acquitted.
He has now been prosecuted and convicted under sec. 176, I.P.C, on the same facts. The Sessions Judge confirmed the conviction and sentence and a rule was issued calling on the District Magistrate of Dibrugarh to show cause why the conviction of, and sentence passed upon, the applicant Sarbekhan Gohain should not be set aside on the ground that the offence of which he has been convicted could not be charged against him according to sec. 403, Cr. P.C
No explanation has been sent in.
The second prosecution appears to us to be barred under sec. 403, Cr. P.C
According to sub-sec. (1) of that section, a person who has once been tried for an offence and acquitted of such offence shall 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 sec. 236, or for which he might have been convicted under sec. 237. And the 2nd sub-section says: A person acquitted or convioted of any offence may be tried of any distinct offence for which a separate charge might have been made against him on the former trial under sec. 235, sub-sec. (1).
Now this case does not appear to us to come under sec. 235, sub-sec. (1); because the offence of which he has now been convicted is based on the very same facts on which the previous charge under sec. 202 was based. The case comes rather under the 2nd sub-section of sec. 235 which lays down that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. This charge under sec. 176, I.P.C, might have been made at the former trial on the very same facts.
It does not therefore come within subsec. (2) of sec. 403, Cr. P.C, and is not therefore excluded from the operation of sub-sec. (1) of that section. It does not come within the provisions of sub-sec. (4), for the Sessions Court which tried him under sec. 202, I.P.C, was competent to try him under sec. 176.
We think, therefore, that the second trial is barred under sec. 403. Accordingly we make the rule absolute, set aside the conviction and sentence and direct that the fine, if paid, be refunded.
B.C
Rule made absolute.
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