JUDGMENT 1. - This reference is made by the learned Sessions Judge, Alwar, with a recommendation that the impugned order of the learned Munsiff Magistrate, Alwar, dated 15th December, 1972, may be quashed and the criminal proceedings launched against Ganga Ram may be dropped. 2. The relevant facts giving rise to this reference may be shortly described as follows: Ludinda Ram filed a complaint on 29th July, 1970, under sections 448 and 323, I.P.C. against Ganga Ram and Karam Chand in the court of the Munsiff-Magistrate First Class, Alwar. It was alleged in the complaint that on 15th July, 1970, at about 5.30 p.m. the complainant was sitting inside his house and his son Gopal was changing his clothes inside the court yard for going to a fair of Shri Jagan Nathji's deity. At that time Ganga Ram accused came to the complainant's house while hurling abuses in a foul manner. The accused entered into the house and began to beat the complainant's son Gopal with cane. While beating Gopal, the accused dragged the latter out of his house. Karam Chand accused was standing in front of the house of the complainant. He also joined Ganga Ram in inflicting blows on complainant's son. The complainant did not go to the rescue of his son, because he was a patient of tuberculosis. He asked his wife to intervene. The complainant's wife rushed to the rescue of her son, but she also was beaten by Ganga Ram and Karam Chand with chhappals and shoes. The incident was eye-witnessed by Himmat Lal, Ram Lal and other witnesses, who prevented the accused from giving further beating to Gopal. The learned Magistrate examined the complainant on oath and made a preliminary inquiry under S. 202, Cr. P.C. into the allegations made in the complaint and upon finding a prima-facie case against the accused under sections 448 and 323, I.P.C. summoned them to face the trial. Both Ganga Ram and Karam Chand put in their appearance and the case was adjourned to 13th October, 1970, for recording their plea under S. 242, Cr. P.C. On 13th October, 1970, their plea was recorded and the complainant was directed to produce his evidence to substantiate the allegations made against them in the complaint. Both Ganga Ram and Karam Chand put in their appearance and the case was adjourned to 13th October, 1970, for recording their plea under S. 242, Cr. P.C. On 13th October, 1970, their plea was recorded and the complainant was directed to produce his evidence to substantiate the allegations made against them in the complaint. It appears from the order sheet of the case file that on 19th January, 1971, the complainant closed his evidence and the case was fixed for recording statements of the accused on 15th February, 1971. On this date, the complainant did not put in his appearance in the court. His learned counsel also could not attend the court when the case was called for hearing. The learned Munsiff Magistrate thereupon acquitted both the accused of the offence punishable under sections 448 and 323, I.P.C. under S. 247, Cr. P.C. on account of non appearance of the complaintant, Ludinda Ram thereafter filed a fresh complaint under sections 452 and 323, I.P.C. against both the accused on the same facts on 24th February, 1971, in the same court. The learned Magistrate took cognizance upon fresh complaint and issued process against both the accused under sections 452 and 323, I.P.C. Aggrieved by this order, both Ganga Ram and Karam Chand filed a revision petition which was heard by the Additional Sessions Judge, Alwar. The learned Additional Sessions Judge accepted the revision-petition and passed an order that the case be referred to the High Court with a recommendation that the order of taking cognizance against Karam Chand for offences under sections 452 & 323, I.P.C. and against Ganga Ram for the offence under section 323, I.P.C.may be quashed. Before making the reference, the Learned Additional Sessions Judge called for the explanation of the learned Magistrate under Rule 80 of the General Rules (Criminal). The learned Magistrate upon receipt of the order of the learned Additional Sessions Judge dropped the proceedings against Karam Chand under sections 452 and 323 and against Ganga Ram under section 323, I.P.C. He, however, ordered on 15th December, 1972 that Ganga Ram would be tried for the offence punishable under section 452, I.P.C. He accordingly submitted an explanation given by the learned Magistrate and did not think it proper to make the proposed reference to the High Court. Ganga Ram thereupon challenged the order of the learned Magistrate by way of another revision-petition. Ganga Ram thereupon challenged the order of the learned Magistrate by way of another revision-petition. The main ground on which the order of the learned Magistrate dated 15th December, 1972, was assailed is that in view of the express provision contained in section 403 sub-section (1), he could not be tried upon fresh complaint of Ludinda Ram for an offence punishable under section 452, I.P.C. after he was already acquitted of the offences punishable under section 448 and 323, I.P.C. The learned Sessions Judge, Alwar heard the revision. Petition and arrived at a conclusion that Ganga Ram had once been tried by a court of competent jurisdiction for offences punishable under Sections 448 and 323, IPC and was acquitted of such offences and that while such acquittal remains in force, he is not liable to be tried again on the same facts for any other offence for which a different charge from the one might have been made against him under section 236, or for which he might have been convicted under S. 237, Cr. P.C. Hence the learned Sessions Judge has made this reference. 3. I have gone through the record and heard arguments advanced by the learned counsel appearing on behalf of Ganga Ram accused and Ludinda Ram complainant. For the reasons mentioned by the learned Sessions Judge in the reference dated 18th June, 1973, the impugned order passed by the learned Magistrate on 15th December, 1972, is clearly illegal and unsustainable in the eye of law. To my mind, the provisions of section 403, Cr. P.C. cannot be dodged by the complainant. Ganga Ram already stands acquitted of the offences under sections 448 and 323, I.P.C. He cannot subsequently be tried upon another complaint in respect of the same occurrence for the offence punishable under section 452, I.P.C. because this charge might have been made against him in the previous trial under S. 236, Cr. P.C. or he might have been convicted for this offence under section 237, Cr. P.C. or he might have been convicted for this offence under section 237, Cr. P.C. The facts narrated in both the complaints are the same except with the difference that in the previous complaint the offences mentioned were under section 448 & 323 while in the complaint subsequently filed the offences said to have been committed by the accused are under sections, 452, 323 and 504, I.P.C. An offence punishable under section 452 IPC is aggravated offence when considered in relation to an offence u/s 448 IPC. Under Section 448 IPC punishment for simple house-trespass is provided. If the house-trespass is of any of the aggravated form, especially provided for in sections 449 to 460, IPC, it may be dealt with as such. Ganga Ram was at first tried under sections 448 & 323, IPC. His second trial on the same facts, though for an offence under S. 452 IPC is illegal, because so long as the acquittal under S. 448, IPC remains in force, the learned Magistrate is bound to take it as proved that Ganga Ram did not commit any house-trespass by entering into or remaining in the dwelling house of the complainant with intent to intimidate, insult or annoy him and, therefore, there cannot be a second trial for the charge under S. 452, IPC for commission of the offence of house-trespass after making preparation for causing hurt to the complaint's son Gopal or for assaulting him or for wrongfully restraining him. I agree with the learned Sessions Judge that S. 403 (1) Cr. P.C. affords protection against Ganga Ram accused being tried again for the offence punishable under S. 452, IPC with which he might have been charged under Section 236, Cr. P.C. or for which he might have been convicted under S. 237 of the Criminal Procedure Code in the course of previous trial. 4. The reference is, therefore, accepted, the impugned order of the learned Munsiff Magistrate, Alwar, dated 15th December, 1972, is hereby quashed & the criminal proceedings against Ganga Ram accused for offence under S. 452, IPC are ordered to be dropped. *******