Cunliffe, J.
1. We granted this rule on a point of law based upon the principle of autrefois acquit laid down in Section 403, Criminal P. C. The petitioner was originally tried for an offence under Section 283, Penal Code, and sentenced to pay a fine with a term of imprisonment in default of the fine. Section 283 is widely drawn, Section dealing with criminal acts causing danger to property, obstruction or injury to persons in a public highway or in a public line of navigation. After that conviction, the petitioner went up on appeal. On appeal, he was acquitted somewhat technically perhaps on the ground that the place which he had obstructed was not a navigable river as during considerable portions of the year, it consisted of a dry bed and the learned appellate Court Judge relied on a definition of 'navigable river' laid down in the Government Estates Manual. Whether the learned Judge was right in specifically relying upon a definition which I should regard as being rather more executive than judicial I am not prepared to say; but at any rate the petitioner was acquitted. That acquittal took place on 5th December 1934. Subsequently, the authorities returned to the attack, because there is an order sheet on the record referring to a fresh prosecution under the Embankment Act, this time for an offence under Section 76-B of that statute. Section 76-B, Bengal Embankment Act, deals with the offence of interfering with embankments. Apparently after that, Mr. Ahmed, the Local Sessions Judge at Nadia was approached by way of motion and his record of what occurred in its material particulars runs as follows: ' Arguments heard. For judgment 21st May 1936 ' Then, a short judgment came to be delivered. The learned Judge said this:
I went through the records. The only question for determination in the case is whether Section 403 (1) applies to this case. It is contended that as the applicant was once fined and acquitted on appeal under Section 283, Penal Code, he cannot again be tried upon the same facts under a different enactment. But in this case I think the prosecution of the applicant under Section 76, Clause (b), Embankment Act, is a distinct offence and it is governed by Section 235 (1), Criminal P. C., and as such, Section 403 (1) has no application. The motion is hereby rejected.
2. That means that a preliminary point of law, which raised a plea in bar to the second prosecution, was rejected as the new offence under the Embankment Act, in the opinion of the learned Judge, was quite distinct from the old offence under Section 283 and the learned Judge pre-supposed that the new prosecution was going to be upon exactly the same facts as the petitioner was tried in the earlier case. I need not refer in terms to Section 403 in its entirety. By Sub-section (2) it refers back to the provisions of Section 235, Sub-section (1) on the basis and on the basis alone that a distinct offence has been committed. Section 235 (1) runs as follows:
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.
3. The question is whether the offence of meddling with an embankment is a genuinely distinct offence from the kind, of offence with which the petitioner was charged under the widely drawn Section 283. It is no good looking at the bare terms of Section 283. One must, I think, in equity look at the exact charge as embraced by Section 283 and the charge against the petitioner, as I understand it, was of creating an obstruction in the bed of the river by extending a tank and making banks which would constitute an obstruction under the section. In my opinion, it cannot be said that meddling with an embankment is a distinct offence as compared with this first offence with which the petitioner was charged, and then acquitted which was, as I have indicated, concerned with making a tank together with extending some kind of protection to it in the way of an embankment. For these reasons, I think that the principle of autrefois acquit operates in favour of the petitioner here. The prosecution in 1934 had reached a finality before this new prosecution under the Embankment Act was launched. We had a case the other day when we ordered a man to be retried by a Magistrate under another section of the Code after he had been convicted under a separate section, and when the learned Magistrate proceeded to carry out our order, learned Counsel rose and said 'My client has been acquitted of the offence; I would plead autrefois acquit.' And when he came to us, we pointed out to him that he could not plead autrefois acquit, because there was no finality there; but here there was. The rule, therefore, will be made absolute.
Henderson, J.
4. I agree. In showing cause, the learned Deputy Legal Remembrancer tried to persuade us that the present prosecution is really for a different offence. The argument he made is this the previous prosecution was for obstruction of the river by the erection of banks in connection with the extension of the petitioner's tank. The present prosecution is not really for that at all, but for something done in the course of smashing down the embankment of the river itself. I can find nothing whatever in the record to support any such argument. There is nothing to show us that the petitioner smashed down anything in connexion with the extension and excavation of the tank. The present prosecution is based upon a letter written by the Collector and the impression that letter has made on my mind is that the present prosecution was intended to be precisely the same thing on a misapprehension of the law. Certainly that is the course which the proceedings took in the Court of the learned Sessions Judge. It by no means follows that anything which the petitioner is supposed to have done to what is called the bank of a river would be an offence under Section 76-B, Embankment Act, at all. I have, therefore, reached the conclusion that there is no foundation for the argument made on behalf of the Crown and I agree that this rule must be made absolute and the proceedings quashed.