Stephen, J.:— The accused in this case has been indicted under five counts. These are, firstly, the murder of Nripendra Nath Ghose under secs. 302 and 34 of the I.P.C: secondly, murder of the same man under secs. 114 and 302, I.P.C: thirdly, abetting the murder of the same man under secs. 109 and 302, I.P.C: fourthly, the murder of Ananto Teli: fifthly, culpable homicide of Ananto Teli. To these charges he pleaded Not Guilty. I told the jury that there was no evidence of an offence under the first count and they acquitted him accordingly. The jury differed as to his guilt under the second and third charges and there were not as many as six who agreed in opinion. The jury unanimously acquitted him of murder under the fourth charge, and differed as to the fifth charge, without six agreeing in opinion. I accordingly discharged the jury under sec. 305, Cr. P. Code.

The accused was then tried again in accordance with sec. 308 of the Code: and as he wished to raise a defence under sec. 403 I allowed him to be charged and to plead again though I doubted if this Were necessary or had any legal effect.

To every remaining charge of the indictment, that is to the second, third and fifth, he pleaded Not Guilty and that he had been previously acquitted: care being taken that he should make the two pleas at the same time.

The points that have been argued on his behalf are that as he was acquitted of the charge of murder of Ananto, he cannot be tried again for committing culpable homicide on him; that as he has been acquitted of an offence under sec. 302 read with sec. 34 in relation to the murder of Nripendra he cannot be convicted of an offence in relation to the ??? 109 or sec. 114: that, as I told the jury, that if they believed the facts related as to the killing of Ananto I did not see how they could convict the accused of any offence less, than murder, the jurors had no right to convict him of any less offence, and consequently those of the jurors who considered him guilty of culpable homicide ought to have found him Not Guilty in which case there would have been a unanimous Verdict of Not Guilty.

For reasons I shall state in a moment I do not consider that it is necessary to refer this matter in any way to the jury: but in case my opinion as to this should be dissented from hereafter, I propose to take a verdict on the plea relating to a previous acquittal though as there are no facts for them to decide, I shall tell them that as a matter of law they are bound to return a verdict that the plea is not made out.

The first point depends, and in my opinion, depends solely on the construction to be put on sec. 403, Cr. P.C This provides that a person who has “once been tried… for an offence” and acquitted “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. 238, or for which he might have been convicted under sec. 237.”

By sec. 236 “if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the alternative with having ???”. By sec. 237 “if in the case mentioned in sec. 236, the accused is charged with one offence and it appears in evidence that he committed a different offence, for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it”. I am of opinion that sec. 235 dealing with acts in a series so connected together as to form one transaction has no application to the present case; consequently neither sub-sec. (2) nor any of the other sub-sections need be immediately considered. In this case the evidence discloses only one illegal act as far as Ananto is, concerned, and the accused has been charged in the alternative with having committed murder or culpable homicide of Ananto, a procedure the correctness of which has not been, disputed. Sec. 403, however, protects him only against a trial for murder and “any other offence for which a different charge from the one made against him” might have been made. But the offence of culpable homicide for which it is now proposed to try him is the same charge that was made against him, and on the terms of the section therefore this defence must fail. If he had been charged with murder alone, no doubt a verdict of not Guilty would protect him from another trial for culpable homicide: and should he be acquitted of culpable homicide he will be protected from a trial for any offence involving hurt: but where a charge was made, the case falls outside the provisions of the law dealing with cases where it might have been made. Then the procedure relating to the discharge of the jury seems to me to be wholly inconsistent with the possibility of ???of another. By sec. 303(1) of the Code the jury are to return a verdict on all the charges on which the accused is tried. They have returned a verdict on two; there remain three that have to be dealt with by another jury under sec. 308. This procedure seems to me as obvious as it is reasonable.

Also, for the purposes of sec. 403 I do not consider that the accused is being tried again. He is being tried on the original indictment, and I consider that he is being tried on his first plea of Not Guilty. The duty of the Court is to continue the trial of the accused before another jury: and the process may continue till a verdict is passed on all the counts without the accused being “tried again” under sec. 403. I am aware that sec. 308 refers to the accused being retried, but this does not affect the construction of sec. 403.

It is, however, if I have rightly understood the argument for the accused, contended that sec. 403 must be construed with reference to the English Law relating to criminal pleading. I think this is an erroneous view, and that for the following reasons.

Sees. 271 and 272 of the Criminal Procedure Code contain all that is necessary as to pleading, and there is no need to supplement their contents by a reference to any other system of judicature. The accused can plead Guilty under sec. 271, he can claim to be tried, or he can refuse to plead which is taken to be the same as claiming to be tried. The plea of Not Guilty is thus one not recognised by the Code and this has been the law since 1872 at least; and I suppose that this is intentional, and is designed to get rid of a great mass of English Law relating to criminal ??? century has been discredited, and is in fact falling into an oblivion which for practical purposes it well deserves.

I consider, therefore, that it is not open to the accused to make any answer to an indictment except guilty or a claim to be tried. If an accused claims to be tried I am of opinion that, subject to special provisions, he can take any objection to his trial or conviction at any time, before verdict at any rate, and in any form, that the Court sees fit to allow. In particular I conceive that sec. 403 has nothing to do with pleading: but is in terms of a limitation on the jurisdiction of the Court; for if a man is not liable to be tried, the Court has no jurisdiction to try him. I consequently think that a defence under that section may be set up at any time before verdict, in any form; and that it is to be decided on the terms of sec. 403 which seem to me to decide clearly and reasonably all the questions that have, as far as I know, arisen in England as to the effect of the pleas of autrefois acquit or autrefois convict, several of which still remain undecided for practical purposes.

Under these circumstances I hold that the question whether the accused can now be tried for culpable homicide is a question of law to be decided by me without reference to the jury: and I decide accordingly that he is, can, and indeed must, be so tried.

With a view, however, to what may happen hereafter I propose to put the matter to the jury in the way I have mentioned.

Although I have thus decided this matter without reference to English law I have been referred to a considerable number of English authorities on various points.

But in the first ??? the acquittal of the accused to have been properly made the subject of a plea, the accused is met by difficulty as to the form in which he has pleaded which seems to me fatal to his contention. For though he pleaded Not Guilty at the time that he pleaded autrefois acquit and thus brought himself within the rule laid down in Archbold's Criminal Pleading, page 181, which is of authority in such matters, he had already pleaded Not Guilty in the previous trial, and that plea is still awaiting adjudication. The second plea was therefore unnecessary and of no effect. The case falls therefore within the decision of Alverstone L.C.J, in B. v. Banks(1) where, after saying that the point before him is an extremely technical one (though not more technical than the present one) and may therefore be met with a technical answer, lays down that “a Defendant having pleaded Not Guilty to an indictment is not entitled, while that plea is standing, to have a plea of autrefois acquit put on the record. The accused in fact seems to have pleaded double in circumstances in which that course is not allowed by law. Assuming this case therefore to be governed by the English Law of pleading, I hold that autrefois acquit has not been properly pleaded.

It would seem from the same authority and the cases there quoted that the proper course to have followed according to English Law would have been to take a verdict from the jury at once, if indeed one is needed, when all the facts to be ascertained are on the record. It is said however, that a jury that is already empanelled may decide issue, Russel on Crimes, 17th Ed., p. 1996, and B. Parry(2).

The English law applicable to an indictment for manslaughter after an acquittal for murder on the same facts is beyond doubt, as an indictment for the major puts the accused in jeopardy of a conviction for the minor offence, Russell, p. 1963; but I have searched Russell and the article “Criminal Law and Procedure”, in Halsbury's Laws of England in vain for any decision or any rule as to the effect of a verdict on one count on the decision on another All the numerous cases that I have been able to verify refer to indictments following acquittals or convictions or previous indictments or information, and in most of the cases it is decided in terms that the indictment is good of bad as the case may be. This follows from the fact that in England an indictment is a highly formal document, and the finding of a fresh indictment is the criterion of the institution of a mew trial. But in this case there is no question of the indictment being unimpeachable. Each count in an indictment is for the purposes of evidence and judgment a separate indictment Latham v. Queen, see Archbold, p. 82, and also Stephen's Digest of Criminal Procedure…… The one reported case where a conviction on one count was held to support a plea of autrefois convict on a subsequent trial on another count is R. v. Grimwood, to which I have been referred. Here, on an indictment for causing grievous bodily harm and other offences involving assault and for common assault, the jury disagreed as to the major charge and convicted of assault. The Recorder sent the indictment to Assizes for the re-trial on the major counts and Pollock B. held that the prisoner was autrefois convict and could not be tried again. The same result would, one may assume, have followed had the first verdict been one of acquittal, though in that case the basis for the major charges would have been negatived. But I cannot regard this case as of any high authority. It was decided on circuit without further consideration. It is, as far as I am aware, only reported in R. v. Grimwood. It is referred to in Archbold at p. 235, but is not referred to in the far more authoritative Russell, though the 17th Ed of that work is edited by Mr. Crails, the very learned editor of the 24th Ed of Archbold. The silence of other works of authority on the matter is significant and I cannot regard the report in R. v. Grimwood, as showing more than that the very experienced Judge who tried the case considered it inexpedient that the case should proceed further. I consider therefore that there is no English authority for the contention that a verdict on one count can in the case of re-trial after disagreement of the jury affect the trial on another count. And on principle I can Bee no reason why a verdict on one count should have an effect in a re-trial on the same indictment that it would not have at the original trial. I therefore hold that even if the principles of English law are to be applied to the present case the acquittal for murder is no bar to the re-trial for culpable homicide. But in finding that the acquittal for murder is no such bar I rely on my finding that the case is to be decided solely on the effect of sec. 403, Criminal Procedure Code.

The second point depends on the terms of sec. 34. This provides that “when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”. In this case the killing of Nripendra was, according to the evidence, done by one person who was not the accused. It was therefore not done by several persons and I do not see how the section can apply. I directed an acquittal. The finding of the Jury, therefore, decided nothing, and cannot be taken as negativing the common intention of the accused and the man who in fact killed Nripendra.

The accused now stands charged with abetting the murder of Nripendra by force of sec. 109 and sec. 114.

Abetting is defined by sec. 107, and the evidence to my mind, if relied on, shows that the accused instigated and aided whoever it was that committed the murder, and there is therefore a case made out under sec. 108, for there is no reason for saying that a man must be absent in order to abet under sec. 109. The instigating of the unknown murderer by accompanying him to the place, and by aiding him in his flight after wards, which the accused on the evidence did, might have taken place though the accused was not present at the murder. But on the evidence he was so present, and sec. 114 therefore applies to the case. The cases that have been quoted to me in this matter are decided on the sections in question but seem to me to have no bearing on the case.

I may have misapprehended the third point, at any rate I do not understand it. I expressed my opinion that if the facts given in evidence were believed, the accused was guilty of murder: but the question was one of fact, and if the Jury disagreed with me in point of fact they had a right to do so. I cannot understand their decision: but I had no power to overrule it.

The Public Prosecutor for the Crown.

Mr. H.N Dutt, Solicitor for the Accused.