Rajeshwari Prasad, J. - (1.) The Petitioners who have filed the present revision petition were alleged to have committed theft of chari crop of the informant Chohal Singh in the morning of 17 -9 -1964. When he reached his field, the Petitioners abused him and fled away. Thereafter Chohal Singh carried the chari crop in a bogey (a buffalo cart) to his house. When the bogey was standing near his house, the Petitioners, with others, reached the place and committed riot and criminal trespass into Chohal Singh's house. After investigation, the accused persons were charge -sheeted. Before the charge was framed, the Assistant Public Prosecutor incharge of the case on behalf of the State gave a statement that the case may proceed for charges Under Ss. 147, 323 and 452 IPC only and that the charge of theft was given up in that case on account of legal impediments of multifariousness of charges prejudicial to the accused. After this statement was given, the case proceeded for charges other than the charge of theft and the Petitioners were convicted in that case. Thereafter, the police sent the present Petitioners only for trial Under Sec. 379 IPC. The Petitioners raised the objection that there could be no second trial in view of Sub -section (2) of Sec. 403 Code of Criminal Procedure. The learned Sessions Judge found that Sec. 403 Code of Criminal Procedure was not applicable to the facts of the case because it related to a case of acquittal and not to a case of discharge. That view of law taken by the learned Sessions Judge cannot be said to be erroneous.
(2.) It has, however, been urged that Under Sec. 494 of the Code of Criminal Procedure when the Public Prosecutor withdraws a prosecution of any person for any particular offence and if that happened before a charge had been framed, it is the duty of the court to discharge the accused. Although, the learned Magistrate did not expressly make an order of discharge as a result of the statement of the Assistant Public Prosecutor, in law, that order must be deemed to be an order of discharge of the Petitioners from the offence of theft. This being so, it has been urged that unless the previous order of discharge is set aside in revision or otherwise, the Petitioners could not be prosecuted for a second time for the same offence. The submission made by the learned Counsel for the revisionists is correct. The order of the learned Magistrate must be deemed be an order of discharge and so long as that order which was a judicial order stands, a second trial is barred. Such view finds support from the case of King v/s. K.N. Chachan : AIR 1949 Pat 449 and also from the case of Gur Charan and Ors. v/s. State : AIR 1957 All. 557.
(3.) The revision petition is allowed. The order passed by the learned Magistrate as well as by the learned Sessions Judge is set aside and proceedings in prosecution of the Petitioners for offence Under Sec. 379 IPC is set aside and quashed.;