Kanhaiya Singh, J.

(1) This is a reference under Section 438, Criminal Procedure Code, recommending that the order of the Sub-divisional Magistrate, Muzaffarpur, dated 31-8-1959 summoning the accused persons upon a complaint of offences under Sections 323, 147 and 448 of the Penal Code be set aside.

(2) On 20-11-1958 one Nirpat Singh filed a petition of complaint before the Subdivisional Magistrate, Muzaffarpur. The allegations in the petition of complaint are as follows. The complaint Nripat Singh had married a Nepal! girl, on account of which the accused persons, six in number, who are his gotias were enraged and therefore, ostracised him. When his mother died in the Baisakh of the same year, the complainant invited them to the usual feast, but they declined to participate in it. Instead, they started stopping egress and ingress of the complainant The latter convened a panchaiti, but the accused remained adamant and paid no heed to the Punches, rather, before the very punches they abused him and were ready to assault him. The Punches, however, intervened and took them away. This irritated them further. On 18-11-1938, the accused started digging a ditch to close his passage intended for bringing water. The complainant stopped it, whereupon the accused wanted to assault him. The complainant fled away and took shelter in his bathan (cowshed). The accused pursued him and dragged him out of the bathan and assaulted him with lathis, butt-end of the gun and fists, inflicting thereby serious injuries on his person. Some persons came at the time of the occurrence and separated them. The gun was carried by Jageshar Singh, one of the accused, who struck him with its butt-end. These allegations apparently disclose three offences under Sections 147, 323 and 44

8. The Magistrate examined the complainant on solemn affirmation and took cognizance of the offence under Section 323, Penal Code, and issued processes summoning the accused persons. Some of the accused persons did not appear until after warrants of arrest were issued against him. On 6-9-1958 the complainant filed a Petition to adopt the procedure for warrant cases in trial of the accused. The Magistrate allowed this prayer and directed that procedure in warrant cases would be adopted. Accordingly, the trial proceeded and after several adjournments, the case was set down for hearing on 7-7-1959. On this date the accused were present but the complainant who was present on all the previous dates fixed for hearing was absent and, therefore, the learned Magistrate directed the accused to be acquitted under Section 247 of the Criminal Procedure Code. The operative part of this order runs as follows: "The cognizance of the offence has been taken Under Section 323 I. P. C. which is triable as summons case. In the circumstances, the accused persons are acquitted Under Section 247 Cr. P. C."

(3) Thereafter, on 11-7-59, another complaint was made on the self-same facts on which the previous complaint was made, and the Plea of the complainant was that because of his being in volved in a false criminal case at the instance on the accused, he could not attend Court on 7-7-1959 and prayed for issue of processes against the accused. He was examined on solemn affirmation. The Magistrate called for the record of the previous complaint and passed the following order on 31-8-1959:

"Complainant files hazri. The record from the trial Court received and seen. Heard lawyers. The learned lawyer for the complainant has filed Jagan v. Ram Kishore Pandey, AIR 1954 All 340 [LQ/AllHC/1953/316] in support of his contention that Section 323 I. P. C. and 147 I. P. C. were both applicable to this case, hence in case the complaint has been dismissed for default, the order passed by the learned Magistrate should have been one of discharge and not of acquittal, and fresh trial on complaint Under Section 403 Cr. P. C. (was not barred). The learned Magistrate in his order dated 6-10-1959 has allowed warrant procedure to be followed in this case. aS such, I find that fresh trial, on this complaint is not barred. Cognizance taken Under Section 323/147 I. P. C. Transferred to Sri R, S. Singh, Magistrate 1st class for favour of disposal".

(4) Against the aforesaid order, the accused moved the Sessions Judge for reference to the High Court to quash the order, inasmuch as the previous order of acquittal was, under Section 403 of the Criminal Procedure Code, a bar to further proceeding. The Sessions Judge upheld that contention and has recommended that the Magistrates order be set aside.

(5) The important question is whether the order of acquittal under Section 247 of the Code of Criminal Procedure operated as a bar to the fresh trial of the accused on the same facts for other distinct offences. The answer to this question really depends upon the provisions of Section 403 of the Code of Criminal Procedure which deal with the effect of Previous acquittals or convictions. It provides as follows:

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3. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tiled for such last-mentioned offence, if the consequence had not happened, or were not known to the Court to have happened, at the tinxe when he was convicted. (4) 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) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897, or of Section 188 of this Code."

This section embodies the well-recognised pleas of autre fois acquit and autre fois convict, namely, that no persons shall be put in peril twice for the same matter. The provisions of this section are complete by themselves on the question of the previous acquittals and convictions. Generally speaking, no person shall be subjected to double jeopardy in respect of the same matter. It is evident that previous conviction or acquittal on the same facts does not bar subsequent trial of a person in all cases. Under Sub-section (1) of Section 403, a person who has once been tried for an offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. Thus, a person cannot be tried again for the same offence as contemplated under Section 403 (1), but there is no bar to his subsequent trial for a distinct offence, as contemplated by Sub-section (2). Under Sub-section (2) a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235 (1). Thus, if a person is tried for one offence and is convicted or acquitted, he cannot be tried against for the same offence based on the same set of facts. He cannot further be convicted on the same fact also for a different offence for which a charge might have been framed against him in the previous trial under Section 236 or for which he might have been convicted under Section 237. Where, however, the facts disclose different offences, distinct from each other and not falling under Section 236 or 237, but under subsection (1) of Section 235, the former trial for one of the offences will not operate as a bar to the trial of a person for the other distinct offences forming part of the same transactions. If the transactions are separate and the offences are also distinct, no question of any bar arises. Thus, in order to determine whether Or not a subsequent trial of a person for another offence on the same set of facts is permissible in law, one has to find out whether the case falls under Section 235 (1) or 236 or 237 of the Code of Criminal Procedure. These sections provide as follows;

"235 (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person he may be charged with, and tried at one trial for, every such offence. 23

6. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. 237. (1) If, in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it."

Sections 235 and 236 provide exceptions to the general rule contained in Section 233 that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. Thus a separate trial for every distinct offence is the rule. Under Sub-section (1) of Section 235, however, where several distinct offences are committed by a person in one series of facts so connected together as to form the same transaction, he can be charged with and tried at one trial for every such offence, however numerous they may be. If, however, for any reason he is not charged with and tried for one of such offences he may be tried again for that offence having regard to the general principle laid down in Section 233 of the Code. In such case, therefore, a subsequent trial for a distinct offence cannot be barred and this is exactly what has been laid down in Subsection (2) of Section 403- The difficulty arises only when the case falls under Section 236 or 237 of the Code. As laid down by their Lordships of the Supreme Court in the case of Nanak Chand v. State of Punjab, (S) AIR 1955 SC 274 [LQ/SC/1955/3] ,

"Section 237, Cr. P. C., is entirely dependent on the provisions of Section 236 of that Code. The provisions of Section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed. In these circumstances if there had been an omission to frame a charge, then under Section 237, a conviction could be arrived at on the evidence although no charge had been framed."

It is thus clear that where it is doubtful what offence has been committed on given facts a person may be charged alternatively with the commission of all those offences and tried. Where under Section 236 a person may be charged alternatively for other offences also because of the doubt, but he is actually charged and tried for one of such offences he may under Section 237 be convicted of an offence although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. A failure to take advantage of the provisions of Section 236 or 237 in all cases of doubtful offences committed in a single act or series of acts, either on the part of the Court or the prosecutor must bar a subsequent trial of an accused, because he should not be vexed twice for any omission on the part of the Court or the prosecutor, and this is the principle underlying Sub-section (1) of Section 403.

(6) Now, considering the present case in the light of these principles, the accused cannot be tried for the offence under Section 323 of the Penal Code, because they have been acquitted of this charge in the former trial. Then, there remains the charge under Sections 147 and 448, and the only question is whether these offences come under Section 236 or 237 or 235 (1). There is no doubt about the facts, and if the allegations in the petition of complaint are established, then, there could be no doubt that the accused committed the offence under Sections 323, 147 and 443 of the Penal Code. A charge against a Person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly. The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. (See Suraj Pal v. State of U, P., (S) AIR 1955 SC 419 [LQ/SC/1955/18] ). Therefore, the charge of rioting under Section 147 and the charge of causing hurt under Section 323 by individual members of that assembly are entirely different and distinct offences. Such a case falls under Section 235 (1) of the Code. I am fortified in this view by Illustration (g) to Section 235 of the Code, which runs as follows :

"(g) A, with six others, commits the offences of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under Sections 147, 325 and 152 of the Indian Penal Code".

There can Be no doubt, therefore, that offences, under Sections 147 and 323 are distinct offences falling under Section 235 (1). Again, the charge under Section 448 is, without doubt, distinct from the charge under Section 323 or the charge under Section 147 of the Penal Code. Thus, in the present case, there is no room, for the application of Section 236 of the Code of Criminal Procedure. Accordingly, this case manifestly falls under Section 235 (1), and, therefore, Having regard to the provisions of Sub-section (2) of Section 403 of the Code of Criminal Procedure, the acquittal of the accused persons o the charge under Section 323 of the Penal Code in the former trial will not bar their subsequent trial for the remaining offences under Sections 147 and 448 of the Penal Code. In other words, the accused are not being tried again for an offence, as contemplated under Section 403 (1), but for distinct offences, as contemplated under Sub-section (2), and, therefore, the subsequent trial is legal and the procedure adopted is justified.

(7) I do not consider it necessary to refer to all the authorities that have been cited on both sides, as I think they do not lay down any rule of law in conflict with the views I have expressed above and are also distinguishable on facts. The material question in all cases is whether the case falls under Section 235 (1) or 236 or 237, and this has to be determined on the facts of each case.

(8) In the result, the reference is discharged. The learned Magistrate will now proceed with the trial of the case in the light of the observations made above.