ORDER
Kamla Sahai, J.
1. The prayer made in this application is that a criminal proceeding which is pending against the petitioner be quashed in view of the fact that if the petitioner is put upon his trial, that will be barred under Section 403 of the Cr. P. C.
2. It is an unfortunate case in which the Central Bank of India has lost a huge sum of money, amounting to Rs. 1,50,000/-. The prosecution case may be shortly stated. One Madar Bux falsely assumed the name of Rambhadur, and opened an ac-count in the Sitamarhi Branch of the Bank in the false name of Rambhadur, claiming to be the proprietor of a firm named Rana and Co, On the 23rd and 24th October, 1953, he deposited eight hundies in the Sitamarhi Branch on several parties for the total amount of Rs. 1,59,900/-. That amount was to be realised from the drawers through the Muzaf-farpur Branch of the Bank, On the 27th and 28th, forged realisation advices dated the 26th and 27th October, 1953, were received in the office of the Sitamarhi Branch purporting to have been despatched from the Muzaffarpur Branch.
As a result of these realisation advices, a sum
of Rs. 1,59,900/- was credited to the account of
Rambhadur as Proprietor of Rana and Co. On the
28th October, he encashed two cheques in the
Sitamarhi Branch, one for Rs. 80,000/- and the other
for Rs. 70,000/-. The fraud was discovered, and
thereafter several employees of the Bank, including
the petitioner, who was the Assistant Cashier in the
Muzaffarpur Branch, were prosecuted and put upon
their trial on various charges. “The allegation against
the petitioner was that he had told Harbhagwan,
acting officer in charge of the Sitamarhi Branch at
the time of consideration of the cheques drawn by
Madar Bux in the false name of Rambhadur, that
the party was all right and the realisation advices
were genuine.
He was charged with offences under Sections 120B, 420, 420/109, 471 and 471/109. At his trial in the Sessions Court, he was convicted for the offences with which he was charged, and one other employees of the Bank was also convicted of several charges. The appeal against their convictions was placed before me, and, by my judgment dated 14-11-1957, I disbelieved the prosecution case, and acquitted both the appellants. Briefly stated, I held that the identity of Madar Bux as Rambhadur had not been proved, and that, even assuming that Madar Bux was the same as Rambhadur the allegations made by the prosecution against the appellants had not been established.
3. In June, 1958, Madar Bux, who was absconding at the time of the previous trial, was arrested. He has made a confession in which he has made some allegations to the effect that petitioner Sheo-shanker was a party to the conspiracy with him to cheat the Central Bank. He has retracted that confession; but the police has, on the basis of first information report No. 1, dated 2-11-1953, which is the original first information report, submitted, charge-sheet against Madar BUX for offences under Sections 420 and 465 and under Section 419/109 of the Penal Code against the petitioner.
The case was transferred to Mr. N. P. Singh, Munsif-Magistrate. The petitioner filed an application before him, praying that he should be discharged on the ground that, in view of S, 403 of the Cr. P. C., he cannot now be tried on the facts on which he had already been tried and convicted. The learned Munsif-Magistrate refused to pass any order on this application on the ground that all the facts and evidence in the case were not before him. The petitioner then moved the Sessions Judge who refused to make a reference to this Court. Hence he has filed this application.
4. The point which Mr. Awadhesh Nandan Sahay has urged on behalf of the petitioner is that there are no fresh facts at all, and that, though there may be fresh evidence in the shape of retracted confession of the man who has since been arrested and who is alleged to be Madar Bux, that is no ground for putting the petitioner upon his trial afresh. In other words, his contention is that the petitioner could be charged under Section 419/109 at the previous trial in view of Section 236 of the Cr. P. C., and that, even if no charge was framed for that offence, he could be convicted for it in view of Section 237 of the Cr. P. C.
5. Mr. K. P. Varma, who has appeared on behalf of the State, has argued that the provision which applies to this case is that contained in Subsection (2) of Section 403. He says that different acts are alleged to have been done by the petitioner in one series, and all those acts formed the same transaction. Hence, the case is covered by Subsection (1) of Section 235 which is’ referred to in Subsection (2) of Section 403. That sub-section provides that, in such a case, a previous acquittal or conviction is no bar to an accused being tried afresh.
6. In my judgment, the legal position is perfectly clear. What has to be seen is whether the case is covered by Sections 236 and 237 of the Code or Section 235. If it is covered by the latter section, an accused who has been previously convicted or acquitted may be tried afresh. If it is covered by Sections 236 and 237, a fresh trial will be altogether barred.
7. So far as I can see, the facts alleged by the prosecution at present are not different from the facts alleged by it at the previous trial. In fact, it was stated in the charge framed against the petitioner at that trial that Madar Bux had assumed the falser name of Rambhadur, that Sheoshanker and others including Rambhadur, had conspired together to cheat and defraud the Central Bank, and that petitioner Sheoshanker had abetted Madar Bux alias Rambhadur in cheating the Bank and passing as genuine forged documents, namely, the realisations advices, knowing that they were forged. Even on the basis of the alleged retracted confession of Madar Bux, no different allegation is made.
8. In the circumstances mentioned above, it is clear that though a charge for an offence under Section 419 was not framed against the petitioner at the previous trial, he could, on the basis of Section 237, be convicted under Section 419 read with Section 109 of the Penal Code. That being so, I am clearly of the opinion that this case is covered by Sub-section (1) of Section 403, and a fresh trial of the petitioner on the same facts is barred. I may, in this connection, refer to the decision of Jwala Prasad, J. in Maksu dan Mistry v. Emperor, AIR 1921 Pat 22, in which his Lordship has stated :
“The evidence was thoroughly gone into in that case, and I do not think that the prospect of getting additional evidence is a ground for overriding the principle of autrefois acquit. In the case of Manhari Choudhury v. Emperor, ILR 45 Cal 727 (AIR 1918 Cal 406), no doubt there was nothing to show that additional evidence was available, as was mentioned in the judgment, but that fact to my mind is irrelevant, for the application of Section 403 does not depend upon additional evidence being available or not, and as a matter of fact that point has not been decided in that case”.
Mr. Varma has, however, contended that this Court should not interfere and quash the proceeding against the petitioner at this stage when even commitment enquiry has not yet started. In support of, this contention, he has relied upon M. N. Mukherji v. Matangi Charan Palit, AIR 1919 Cal 57 1. That was a case in which their Lordships had no material before them to show whether the facts in the second case were the same as those in the first case tried at Burdwan, In the present case, the facts are folly known. The only new feature is that some fresh evidence has been collected in the alleged retracted confession of Madar Bux. Hence, the facts, of that case are clearly distinguishable.
9. It seems to me that, when this Court has materials before it on the basis of which it can come to the conclusion that a fresh trial of an accused will undoubtedly be barred under Section 403, it will be sheer waste of public time and money if the proceeding is not quashed at whatever stage the petitioner comes up to this Court. As I am convinced that there is nothing except some fresh evidence against the petitioner and that the fresh trial of the petitioner will be barred under Section 403 of the Cr. P. C., I do not think that I should allow the proceeding to continue.
10. In the result, I allow the application, and quash the proceeding which is pending against the petitioner.