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The accused raises the plea of autrefois acquit and states Section 403(1) Criminal P.C. operates as a bar to the trial of the accused on the same facts when they have been acquitted for an offence under Section 420, I.P.C. and asks me in any event to refer the matter to the High Court under Section 432, Criminal P.C. The learned Crown Prosecutor states that when the appeal against acquittal was argued Mr. Grant raised the point and brought it to the notice of their Lordships that on the facts disclosed the only offence that can be made out was under Section 420, I.P.C., and not under Section 406, I.P.C. This contention was negatived, and their Lordships held that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to restore the complaint for an offence under Section 406, I.P.C. it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out.
This contention was negatived and their .Lordships hold that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to restore the complaint for an offence under Section 406, I.P.C., it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out.

18. He refused to make a reference under Section 432, Criminal P.C. and said it was open to the accused to move the High Court. Criminal revision petitions were filed by both the accused against that order. In the petition of accused 2 it is specifically alleged that the Magistrate refused to decide the point, i.e., autrefois acquit. The matter came before King, J., who passed the following order. "I see no ground for revision. The petitions are dismissed." That is, he declined to stay the trial. Thereafter the proceedings went on. Both the accused were committed for trial. When the matter came before the learned Chief Justice it is agreed that the following was the course of events, and it is borne out by the shorthand note. No point was taken before the accused was charged as was done in Queen-Empress v. Gobind Dass (1901) 28 Cal 211. This is important and I respectfully agree with the view expressed by Maclean, C.J. that it is only after that stage that a point can be said to "arise." I prefer this view to that expressed by a Bench of the Calcutta High Court in Mahomed Yusuf v. Emperor 1931 58 Cal 1214, namely, that a trial only commences after the empanelling of the jury. I£ it were otherwise, an accused pleading autrefois acquit would be driven to making "a double plea" which in England at least would be fatal to his plea of autrefois acquit although there is no such rule in India. But it would be anomalous. The accused was called upon to plead and his counsel took the point that the trial was barred under Section 403, Criminal P.C., and that there was no entrustment within Section 406, I.P.C. Then, according to the learned trial Judge's order:

53. The order is silent about the offence under Section 406, I.P.C., though on the application for permission to compound there is a note by the Magistrate that he too was of opinion that the offence disclosed is only under Section 420, I.P.C., and the Crown preferred an appeal against acquittal on the ground that the complaint disclosed offences under Sections 406, and 420, I.P.C. of which the former is not compoundable and the further ground that in the circumstances of the case permission should not have been granted to compound the offence under Section 420, I.P.C. The appeal was heard by Madhavan Nair and Burn, JJ., and by their judgment reported in Emperor v. J. Mclver 1936 69 MLJ 681, they confirmed the acquittal under Section 420, I.P.C. but held that the complaint disclosed also an offence under Section 406, I.P.C. and ordered a retrial of the accused for that offence.

54. The Magistrate issued process for 11th October 1935 and applications were tiled on behalf of the accused that their acquittal under Section 420, I.P.C., is a bar to their trial under Section 406, I.P.C., and under Section 403, Criminal P.C. Arguments were heard and without deciding the question the Magistrate intimated that the evidence will be taken. An application was filed on behalf of the accused, protesting against the reception of evidence, but the Magistrate observed that in view of the order of the High Court he felt bound to proceed with the trial and an application was filed on 12th November 1935 requesting the Magistrate to refer the case to the High Court under Section 432, Criminal P.C. The Magistrate declined to make a reference and passed the following order: In this case the High Court set aside my alleged order of acquittal for an offence under Section 406, I.P.C. and directed me to restore the complaint and dispose of the case according to law in Cri. App. No. 344/35 (1). The accused raise the plea of autre fois acquit and state Section 403(1), Criminal P.C. operates as a bar to the trial of the accused on the same facts when they have been acquitted for an offence under Section 420, I.P.C., and ask me in any event to refer the matter to the High Court under Section 432, Criminal P.C. The learned Crown Prosecutor states that when the appeal against acquittal was argued Mr. Grant raised the point and brought it to the notice of their Lordships that on the facts disclosed the only offence that can be made out was under Section 420, I.P.C., and not under Section 406, I.P.C. This contention was negatived and their Lordships held that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to ?restore the complaint for an offence tinder Section 406, I.P.C., it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out. In the light of my view I do not think any useful purpose will be served by making a reference under Section 432, Criminal P.C., to the High Court. It is open to the accused to move the High Court, raise the plea there and obtain a stay if they are so advised. Meanwhile the case against the accused for an offence under Section 406, I.P.C., will proceed day to day from tomorrow onwards. Petitions are dismissed."