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.

Explanation. The dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused, or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section1.

Illustrations.

(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts 2, with theft simply, or with criminal breach of trust.

(b) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the facts that A committed robbery at the time when the murder was committed; he may afterwards be charged with, and tried for, robbery.

(c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.

(d) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.

(e) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within paragraph three of this section.

(f) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may be subsequently charged with, and tried for, robbery on the same facts.

(g) A, B and C are charged by a magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts 3.

1 And of course where the accused has been acquitted at a trial by a Court without jurisdiction he cannot plead this as an acquittal for the purposes of this section, 2 Suth. Cr. 10. See secs. 240 (withdrawal of charges), 308 (entry by Sessions Judge), and 345 (composition) for transactions

amounting to acquittals.

2 The words 'upon the same facts' should come next after charged.'

3 For other illustrations see 7 Suth. Cr. 15 (where Peacock C.J. discusses the English plea of autrefois acquit): 7 Mad. 557: 8 Mad. 296: 7 Ben. Appx. 25.

PART VII.

OF APPEAL, REFERENCE AND REVISION.

CHAPTER XXXI.1

OF APPEALS.

404. No appeal shall lie from any judgment or order of a Unless Criminal Court except as provided for by this Code or by any provided, other law for the time being in force 2.

405. Any person whose application under section 89 for Appeal the delivery of property or the proceeds of the sale thereof has been rejected by any Court, may appeal to the Court to which application appeals ordinarily lie from the sentences of the former Court.

406. Any person required by a Magistrate, other than the Appeal District Magistrate or a Presidency Magistrate, to give requiring security for good behaviour under section 118, may appeal to security for the District Magistrate.

Appeal

from sentence of

407. Any person convicted on a trial1 held by any Magistrate of the second or third class 2, or any person sentenced second or under section 349 by a Sub-divisional Magistrate of the second Magistrate. class, may appeal to the District Magistrate.

third class

Magistrate.

Transfer of The District Magistrate may direct that any appeal under appeals to this section, or any class of such appeals, shall be heard by any first class Magistrate of the first class subordinate to him and empowered by the Local Government to hear such appeals 3, and thereupon such appeal or class of appeals shall be presented to such Subordinate Magistrate, or if already presented to the District Magistrate shall be transferred to such Subordinate Magistrate. The District Magistrate may withdraw from such Magistrate any appeal or class of appeals so presented or transferred.

Appeal

from sentence of

408. Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of Assistant the first class, or any person sentenced under section 349 by a Judge or Magistrate of the first class, may appeal to the Court of Magistrate Session:

Sessions

of the first class.

Appeals to

Court of

Provided as follows:

(a) when in any case an Assistant Sessions Judge or a District Magistrate passes any sentence which is subject to the confirmation of the Court of Session, every appeal in such case shall lie to the High Court, but shall not be presented until the case has been disposed of by the Court of Session;

() any European British subject so convicted may, at his option, appeal either to the High Court or the Court of Session;

409. An appeal to the Court of Session or Sessions Judge Session how shall be heard by the Sessions Judge or by an Additional or heard. Joint Sessions Judge.

This does not include a person
ordered under section 22 of the Cattle
Trespass Act to pay compensation, 10
Bom. 230.

2 or by a Bench of Magistrates in-
vested with second or third class
powers, 9 Mad. 36.

"First class Magistrates in charge

of divisions in Sind were invested with such powers under the corre sponding section (266) of the Code of 1872; see Macpherson's Lists, 1884, p. 210.

This includes a District Magistrate invested with powers under sec. 30; 9 Cal. 513, 516.

from sen

410. Any person convicted on a trial held1 by a Sessions Appeal Judge, or an Additional or a Joint Sessions Judge, may appeal tence of to the High Court 2.

Court of
Session.

tence of

411. Any person convicted on a trial held by a Presidency Appeal Magistrate may appeal to the High Court if the Magistrate from senhas sentenced him to imprisonment for a term exceeding six Presidency Magismonths or to fine exceeding two hundred rupees3.

trate.

in certain

cases when

412. Notwithstanding anything hereinbefore contained, No appeal where an accused person has pleaded guilty and has been convicted by a Court of Session or a Presidency Magistrate on accused pleads such plea, there shall be no appeal except as to the extent or guilty. legality of the sentence 1.

413. Notwithstanding anything hereinbefore contained, No appeal in petty there shall be no appeal by a convicted person in cases in which cases. a Court of Session or the District Magistrate or other Magistrate of the first class passes a sentence of imprisonment not exceeding one month only, or of fine not exceeding fifty rupees only, or of whipping only.

Explanation. There is no appeal from a sentence of imprisonment passed by such Court or Magistrate in default of payment of fine when no substantive sentence of imprisonment has been passed.

from cer

victions.

414. Notwithstanding anything hereinbefore contained, No appeal there shall be no appeal by a convicted person in cases tried tain sumsummarily in which a Magistrate empowered to act under mary consection 260 passes a sentence of imprisonment not exceeding three months only, or of fine not exceeding two hundred rupees only, or of whipping only.

415. An appeal may be brought against any sentence Proviso to referred to in section 413 or section 414 by which any two or

sections 413 and 414.

Saving of

sentences on E. B. subjects.

Appeal in

case of ac

quittal.

Appeal on what mat

more of the punishments therein mentioned are combined, but no sentence which would not otherwise be liable to appeal shall be appealable merely on the ground that the person convicted is ordered to find security to keep the peace.

Explanation.-A sentence of imprisonment in default of payment of fine is not a sentence by which two or more punishments are combined within the meaning of this section.

416. Nothing in sections 413 and 414 applies to appeals from sentences passed under Chapter XXXIII on European British subjects.

417. The Local Government may direct the Public Prosecutor1 to present an appeal to the High Court from an original or appellate order of acquittal2 passed by any Court other than a High Court 3.

418. An appeal may lie on a matter of fact as well as a ters admis- matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.

sible.

Petition of

appeal.

Procedure

Explanation. The alleged severity of a sentence shall for the purposes of this section be deemed to be a matter of law.

419. Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader 5, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under section 367.

420. If the appellant is in jail, he may present his petition when ap of appeal and the copies accompanying the same to the officer

pellant in

jail.

1 Sec. 4, cl. (m), supra, p. 62.

2 24 Suth. Cr. 41.

3 See sec. 423, clauses (a) and (d). Such appeal, when the order is passed in a case tried by a jury, lies on a matter of law only, 10 Cal. 1030. See sec. 418. Where the Sessions Judge disagrees with a verdict acquitting the prisoner but passes judgment in accordance therewith, an appeal lies under this section, 2 Cal. 273, but only on matter of law. As to the time within which appeals from

acquittals must be presented, see the Limitation Act, Sched. II. art. 157. When an appeal comes on for hearing, the Public Prosecutor begins, 20 Suth. Cr. 33.

4 So are omission to consider, and erroneously setting aside, relevant evidence. Nothing in sec. 418, or the rest of this chapter, affects the power conferred by sec. 307, supra, 9 All.

425.

5 Sec. 4, cl. (n). But see I Mad. 304: 6 Bom. 14.