PART X. CHAP. XXXIII

of

. 460

A person convicted or acquitted of any offence in respect any facts may, notwithstanding such acquittal or convic tion, be subsequently charged with and tried for any other offence which he may have committed in respect of the same facts, if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

Illustration.

(a.) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards be charged upon the same facts either with theft as a servant, with theft simply, or with criminal breach of trust.

(b.) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the facts that A committed robbery at the time when the murder was committed; he may afterwards be charged with and tried for robbery.

(c.) A is tried for an assault and convicted. The person afterwards dies. A may be tried again for culpable homicide.

(d) A is tried under section 270 of the Indian Penal Code, for malignantly doing an act likely to spread the infection of a disease dangerous. to life and is acquitted. The act so done afterwards causes a person permanently to lose his eyesight. A may be charged under Section 325 with voluntarily causing grevious hurt to that person.

(e.) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried for the murder of B on the same facts.

(f) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within paragraph three.

(g.) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may be subsequently charged with and tried for robbery on the same facts.

(h.) A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with and tried for dacoity on the same facts.

This section contains the spirit of the old Section 55, Act XXV, of 1861. The wording of the present section is more full than was the wording of the old section, and its meaning is made more clear by the illustrations appended to it.

Sec. 460.

With reference to the maxim, nemo debet vis vexari pro una et eadem causa, Broom, in his "Legal Maxims at pp. 240 to 243, has the following remarks:-"An important application of this general principle occurs in Criminal Law, for there it is a well established rule, that when a man has once been indicted for an offence, and acquitted, he cannot afterwards be indicted for the same offence: Provided the first indictment were such that he could have been lawfully convicted upon it by proof of the facts contained in the second indictment; and if he be thus indicted a second time he may plead autrefois acquit, and it will be a good bar to the indictment. Thus, an acquittal upon an indictment for murder may be pleaded in bar of another indictment for manslaughter; and an acquittal upon an indictment for burglary and larceny may be pleaded to an indictment for the larceny of the same goods; because in either of these cases, the prisoner, might, on the former trial, have been convicted of the offence charged against him in the second indictment; the true test by which to decide whether a plea of autrefois acquit is a sufficient bar in any particular case being-whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. On the principle that a man should not twice be put in jeopardy for one and the same offence," a plea of autrefois convict will operate to bar a second indictment, unless the judgment on the former has been reversed for error. It may, however, be laid down generally that where, "by reason of some defect in the record either in the indictment, place of trial, process, or the like, the prisoner was not lawfully liable to suffer judgment for the offence charged on that proceeding," he cannot, after reversal of the judgment, properly be said to have been "in jeopardy" within the meaning of this maxim. So, where on a trial for misdemeanour, the jury are improperly, and against the will of the defendant, discharged from giving a verdict after the trial has begun, this is not equivalent to an acquittal.

With reference to the case of R. vs. Dwarkinath Dutt, Peacock, Chief Justice, in delivering his opinion, said: “In England it is necessary that the crime charged be precisely the same as that of which the prisoner was acquitted, and so strictly does the rule prevail, that it was held by all the Judges that an acquittal upon a trial for burglariously breaking and entering a dwelling-house, and stealing goods therein, was no bar to a subsequent indictment for burglariously breaking and entering the dwelling-house with intent to steal the goods, though both charges. related to the same breaking and entering. The Judges remarked that, if the crimes were so distinct that evidence of the one would not support the other, it would be as inconsistent with reason as it would be repugnant to the rules of law, to say that the offences were so far the same that an acquittal of the one would be a bar to a prosecution for the other. The question in these cases is whether the prisoner

CHAP. XXXIII.
Sec. 460.

CODE OF CRIMINAL PROCEDURE.

729

could have been convicted on the first trial of the offence charged on the second trial, and whether he was ever in jeopardy for that offence. In Vaux's case, 4 Coke's Report, 44, it was held that where a former acquittal or conviction is spoken of as a good plea, a lawful acquittal or conviction is intended; and that if the former indictment was not sufficient, the acquittal or conviction would not be a lawful one. When it is said that the offences must be the same, it is merely meant that they must be in reality the same; and therefore a defendant may plead his previous aquittal, though the two charges differ in immaterial circumstances; for it would be absurd to suppose that, by varying the day, place, or any other allegation, the precise accuracy of which is not material, the prosecutor could change the rights of the defendant, and subject him to a second trial for what in reality was the same offence. Thus, if a prisoner be indicted for murder alleged to have been committed on a certain day, and acquitted, and afterwards be charged with killing the same person on a different day, he may plead the former acquittal in bar, notwithstanding this difference, for the day stated in the indictment on the former trial was not material. (See Chitty's Criminal Law, 1st Vol., p. 452, and the case there cited).

"The following are instances of cases in which the offences have been held to be different. It is laid down in Hale's Pleas of the Crown that if A commit a burglary, and at the same time steals goods out of a house, and he be indicted for stealing the goods, and acquitted, he may be afterwards indicted for the burglary, notwithstanding the acquittal; and, é converso, if indicted for the burglary, and acquitted, yet he may be indicted for the larceny; for they are several offences, though committed. at the same time; and burglary may be where there is no larceny, and larceny may be where there is no burglary. So it has happened that a man acquitted for stealing a horse has yet been arraigned and convicted for stealing the saddle, though both were done at the same time." (Hale's Pleas of the Crown, Vol. II., p. 245). In this case it was laid down that, whenever the offences charged in the two indictments are capable of being identified as the same offence, it is a question of fact whether the offences are the same, and the identity must be proved; but, where a plea of autrefois acquit upon its face shows that the offences are legally distinct and incapable of identification, the Court may determine the question as a matter of law."

Sec. 461.

CHAPTER XXXIV.

This Chapter contains the provisions of Section 381, Chapter XXVI, of 1861, and three new sections regarding "when judgment is to be pronounced, in what language it is to be written, and what it is to contain."

OF THE JUDGMENT ORDER AND SENTENCE.

Judgment to specify offence.

461. When the trial in any Criminal Court is concluded, the Court, in passing judgment, if the accused person be convicted, shall distinctly specify the offence of which, and the section of the Indian Penal Code or other law under which, he is convicted:

ternative'

Or if it be doubtful under which of two sections, or under Judgment in the al- which of two parts of the same section, such offence falls, the Court shall distinctly express the same, and pass judgment in the alternative, according to section seventy-two of the said Code.

If it be doubtful under which, etc.—The power to pass judgment in the alternative given by this Section as it originally stood applied to cases in which it was doubtful under which of two sections the offence fell, and not to cases in which both charges were under the same section, but the provisions of this section have been extended to doubtful cases falling under different parts of the same section, and the words or other law have been added to this section by the present enactment, Act X of 1872.

In the alternative.-An alternative finding under this section should not be resorted to until both the committing officer and the S. J. are satisfied that no reliable evidence is procurable in support of one or other of the charges; and such a finding cannot be based in a case of giving false evidence upon two statements which are not absolutely contradictory the one of the other, nor when in one of them the accused gives only hearsay evidence, every presumption in favour of the possible

CHAP. XXXIV.
Secs. 461-463.

CODE OF CRIMINAL PROCEDURE.

reconciliation of the statements must be made. Queen vs. Bedoo Noshyo.

731

XII. W. R., p. 11.

Section 72 Penal Code declares that in the case mentioned in this section "the offender shall be punished for the offence for which the lowest punishment is provided, if the same punishment be not provided for all."

There is no review of a judgment passed by a Criminal Court; but if before judgment is recorded, the Court ascertain that there is an error or mistake in the judgment, the Court may correct such error or mistake, it can correct clerical errors in judgments after they have been recorded. 5 W. R. 61. In passing sentence on a Police-officer, the Court should not order his dismissal, since such forms no part of a judicial sentence being an executive order. 5 W. R. 4.

to be pronounced.

462. In trials with assessors, when the exhibits have When judgment is been perused, the witnesses examined, and the parties heard in person or by their respective pleaders, the Court shall pronounce its judgment. The judgment shall be pronounced in open Court either immediately or on some future day of which due notice shall be given to the parties or their pleaders.

This section has been added to the C. C. P. by the present enactment Act X of 1872, and lays down clearly when the judgment of the Court is to be pronounced.

463. The judgment or final order shall be written by the Presiding Officer of the Court in English or the language of the District.

Judgment to be written in English or language of district.

Proviso.

If the language of the Judge be not English the judgment shall not be written in English unless the Judge be sufficiently conversant with the English language to be able to write a clear and intelligible decision in that language.

The High Courts had issued certain rulings, laying down in what language the judgment should be written and what it should contain, vide 2 W. R. C., L 20, and 4 W. R. C. R. 19. These and all other similar Rulings are now superseded by the clear text of the law.