Ray, J.This rule was directed against an order of conviction of the petitioner under Rule 81(4) Defence of India Rules read with Clause 3, Cotton Cloth and Yarn Dealers (Licensing and Control) Order, 1944, as amended by the Bihar Cloth and Yarn Control Order, 1945.

2. The allegations giving rise to this prosecution were shortly that the petitioner was found storing and selling standard cloth for a price more than its controlled price. The petitioner was a licensee as a general cloth merchant but had not the special license for storing and selling standard cloth. The acts consisting in the facts stated made out two offences (1) under the Central Cotton Cloth and Yarn Control order for having sold a cloth for more than its controlled price and (2) for contravention of Clause 3 a Bihar Cloth and Yarn Control order for having dealt in cloth without a license.

3. Previous to this case another prosecution had been started against the petitioner for contravention of the Central Cloth and Yarn Control order for having sold the cloth for a price more than the controlled price. The case, however, could not end in conviction inasmuch as sanction of the Provincial Government as required under Clause 23 of the order had not been obtained. Having been thus unsuccessful in the previous prosecution, the present had been started for the offence consisting in contravention of Clause 3, Provincial Cloth Control order arising out of the identical acts of the petitioner. This prosecution has ended in conviction against which this rule has been issued.

4. The only contention that has been urged and I think successfully is that this prosecution is barred by the principle of autrefois acquit. It has been strenuously contended by Mr. Prem Lall appearing for the Crown that as the previous conviction was incompetent for want of sanction of the Provincial Government, the trial Court cannot be said to be competent to try the offence with which the petitioner had been charged in the previous trial, and he contends, therefore, that the case does not fall within the purview of Section 403(1), Criminal P.C. Confining ones attention to Sub-section (1) of Section 403, this argument no doubt carries ft measure of conviction, but reading the section as a whole, it does not seem to me to be sound. The principle that has been sought to be enacted in the section is that no man should be vexed with several trials for offences arising out of the identical acts committed by him. The argument of the learned Counsel for the Crown does not proceed beyond contending that there can be separate trials for the identical acts of the accused for several offences made out by those acts even though the Court who tried the previous case was competent to try the accused for the offence for which the subsequent prosecution had been launched. Such a contention, in my judgment, is directly contradictory to the principles enunciated and enacted in Sub-section (4) of Section 403. Sub-section (4) has no doubt been worded in the form of an exceptional clause which reads:

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

5. The sub-section has been enacted in an enabling form providing that a man can be tried for a second time for another offence arising out of the same identical acts for which he has already been tried where the latter tried would not have been competently held by the previous Court. If the section intended not to prohibit multiplicity of prosecution for different offences arising out of the same identical acts, this subsection should be completely redundant.

6. I had on a previous occasion to consider this point in Gauri Shanhar Rai and Others Vs. Emperor, of which the facts were almost similar. As at present advised, I am not inclined to take a different view from the one I have taken in the previous case. Mr. Prem Lall cited to me a decision of the Division Bench of this Court in Mohammad Yasin Vs. King-Emperor, and contends that the decision in that case runs counter to the view that I have already taken in the previous case and that I propose to take in this case. Had that been so, I should have no hesitation in changing my view, but the case cited does not throw any light on the principle which is applicable to the facts of the present case. In that ease, the second trial proceeded for the very same offence for which the first trial had been held. The first trial had become infructuous on account of the want of sanction, and, therefore, the Court that tried the offence was held incompetent within the meaning of Sub-section (1) of Section 403. The first trial and the order of the acquittal constituted no bar to the second trial of the same offence inasmuch as the previous trial had been conducted by a Court incompetent to try.

7. The present case is completely different on facts in the sense that the present offence for which the petitioner has been tried and convicted was within the competence of the previous Court to try though the other offences with which he had been charged in that case could not be tried for want of sanction. This decision may support the learned Counsel in his contention that the case is not governed by Sub-Section (1) of Section 403. I however, do not base my conclusion on that sub-section. I rely on Sub-section (4) of Section 403 and on general principles of law as I have pointed out in the previous decision of mine. In my judgment, therefore, the conviction of the petitioner must be quashed and the sentence passed set aside. The rule is made absolute. The fines, if paid, must be refunded.