JUDGMENT 1. - This petition u /Sec. 482, Criminal Procedure Code against the order dated March 23, 1996, whereby the learned Civil Judge (Junior Division) and Judicial Magistrate, Bansur summoned Chagan Singh petitioner as an additional accused in Criminal Case No. 90/83 State v. Birdi Chand and Ors., under sections 420,467 read with Section 120B Indian Penal Code, arises under the following circumstances. 2. On June 3, 1983 Dula Ram respondent No. 2 lodged a First Information Report with Police Station Bansur, Distt. Alwar with the allegations that on January 20,1983 he had agreed to sell his agricultural land to Birdi Chand co-accused and towards part performance of their reciprocal contracts the parties to the agreement had executed agreements in favour of each other and the informant had received a sum of Rs. 5,000/- from the said Birdi Chand as advance money against the consideration of the agreement, that instead of making any further payment to the informant towards the consideration of the land to be sold, Birdi Chand and other co-accused, including the present petitioner, became parties to criminal conspiracy to prepare false document, evidencing further payments to the informant by Birdi Chand, and in pursuance of such criminal conspiracy purchased stamp paper in the name of the informant, obtained his signatures on such stamped paper and a register on the false representation that such documents were being prepared in connection with the record of cattle possessed by him but those in fact evidenced the receipt of a further amount of Rs. 15,000/- by him from Birdi Chand co-accused towards part payment of the consideration of the agreement for sale of land. 3. After having investigated the case, registered on the basis of the report of Dula Ram respondent No. 2, the police submitted a report under Section Criminal Procedure Code for offences under Sections 420, 467, read with Section 120-B, Indian Penal Code against five persons, including Chagan Lal petitioner. After hearing the parties before framing charges against the accused the learned Magistrate, vide his order dated May 21, 1984 found the charges baseless and groundless as against the present petitioner and accordingly discharged him of all the offences. But at the same time, the learned, Magistrate summoned Brij Lal, deed writer as additional accused in the case. 4. After hearing the parties before framing charges against the accused the learned Magistrate, vide his order dated May 21, 1984 found the charges baseless and groundless as against the present petitioner and accordingly discharged him of all the offences. But at the same time, the learned, Magistrate summoned Brij Lal, deed writer as additional accused in the case. 4. The order of the discharge of the petitioner was upheld on 26.4.1986 by the learned Additional Sessions Judge No. 2, Alwar in Criminal Revision Application No. 38 of 1984 Dula Ram v. Chagan Singh and Anr. , and the order of the learned Additional Sessions Judge was confirmed on 8.86 by this Court in S.B. Criminal Misc. Petition No. 506 of 1986, Dula Ram v. Chagan Singh and Anr. The order relating to the summoning of Brij Lal, deed-writer as additional accused in the case is stated to have also been quashed and set aside on 16.12.86 by this Court in a separate Criminal Misc. Petition No. 356 of 1986. The criminal case before the learned Magistrate thus proceeded as against the remaining four accused who are not parties to this petition. 5. The trial against the remaining four accused was completed on 8.7.94, they were examined under section 313, Criminal Procedure Code and on 15.9.94, the defence evidence was closed on 27.9.94 and the case was fixed for final arguments on 20.10.94. On that date, however, the prosecution moved an application under section 319, Criminal Procedure Code requiting the learned Magistrate to summon the present petitioner as additional accused in the case. Though the remaining four accused who had already faced their trial for almost a decade are stated to have moved an application to the learned Sessions Judge, Alwar for transfer of the case from the Court of the learned Magistrate, Bansur, yet he passed the impugned order on 23.3.96 whereby the learned Magistrate resummoned the present petitioner as additional accused in the case. 6. Mr. R.S. Rathore, the learned Counsel for the petitioner, urged that since the order of discharge of the petitioner in this very case was very much in force at the time of passing the impugned order, the learned Magistrate was not justified in resummoning the petitioner as an accused. 6. Mr. R.S. Rathore, the learned Counsel for the petitioner, urged that since the order of discharge of the petitioner in this very case was very much in force at the time of passing the impugned order, the learned Magistrate was not justified in resummoning the petitioner as an accused. The learned Public Prosecutor, however, submitted that the doctrines of 'antre fois acquit' and 'nemo debet bis vexari' were not applicable to the case of the petitioner for the obvious reason that the petitioner had simply been 'discharged' and not 'acquitted' of the offences in this case. 7. Section , Criminal Procedure Code empowers a Court to proceed against such other person, who in the course of inquiry into, or trial of an offence, appears from the evidence to have committed such offence. Such other person may be "any person, not being the accused" in the case. Such 'any person' may even be a witness in the case. The use of the words "not being the accused", qualifying the words "any person", in the language of Sub-section (1) of Section 319 indicates not only the position of such "any person" in relation to the proceedings of the inquiry or trial but also the continuance or pendency of such proceedings at the time of making an order by the Court to proceed against other person. Conceptually, therefore, the language of Sub- section (1) of Section 319 admits of the proposition that a person, who at that point of time and at that stage of the proceedings is not an accused in that case, may be proceeded against for the offence which, from the evidence, he appears to have committed. Since a person, who has already been discharged of the offence in that case at an earlier stage of the proceedings, would fall within the purview of the expression "not being the accused" at a subsequent stage of the inquiry or trial, he may be proceeded against u /Sec. 319 for the offence he appears to have committed. 8. The principle underlying Section , Criminal Procedure Code is that a person who has once been convicted or acquitted of an offence cannot be tried again for the same offence. This rule is based on the maxim 'memo debet his vexari' enshrined in Article 20(2) of the Constitution. 8. The principle underlying Section , Criminal Procedure Code is that a person who has once been convicted or acquitted of an offence cannot be tried again for the same offence. This rule is based on the maxim 'memo debet his vexari' enshrined in Article 20(2) of the Constitution. The supplementary English Doctrine of 'antre fois acquit f however, requires' that in order to bar further proceedings against him the accused must have been tried as well as acquitted of the offence he is subsequently intended to be tried for. This rule is not applicable to statutory acquittals under sections 321, 256 and 320, Criminal Procedure Code. In fact the Code of Criminal Procedure, makes a clear distinction not only between acquittals recorded after trial and acquittals recorded without trial of an accused but also between "discharge" and "acquittal". A discharge in a warrant case instituted on the basis of a police report is recorded under section 239, Criminal Procedure Code without trial of the accused and is almost on the same footing as acquittals recorded under sections 320, and 256, Criminal Procedure Code. The doctrine of 'antre fois acquit', therefore, does not apply to a discharge recorded under section 239, Criminal Procedure Code. 9. The rule of estoppel or res-judicata in so far as it is applicable in criminal trials is that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been recorded in favour of an accused, such a finding of fact would constitute an estoppel or res judicata against prosecution of the accused for the same offence, not as a bar to the trial and conviction of the accused for a different offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently. The rule is not the same as the plea of double jeopardy or autrofois acqit which later on prevents the trial of any offence. It simply relates only to the admissibility of evidence which is designed to upset the finding of fact recorded by the Court at a previous trial or earlier stage of the proceedings of the same trial. The view taken by me seems to be in conformity with the view taken by this Court in the case of Vishwanath and Ors. v. The State, 1996 Cr.L.T. 1955=1 (1996) CCR 9 . The view taken by me seems to be in conformity with the view taken by this Court in the case of Vishwanath and Ors. v. The State, 1996 Cr.L.T. 1955=1 (1996) CCR 9 . (See Manipur Administration v. Bira Singh, AIR 1965 SC 87 also). 10. Judged in the light of the observations made herein above the position in the present case comes to this that though discharge in favour of the petitioner was recorded u /Sec. 239, Criminal Procedure Code and such discharge did not amount to 'acquittal' for the purpose of attracting the provisions contained in Section 300, Criminal Procedure Code to the case of the petitioner, yet since that was a finding of fact, approved of by higher Courts including this Court such findings of fact should not have been disturbed and upset by the learned Magistrate in the manner and under the circumstances he did. The narration of the facts made above and the circumstances, attending upon the making of the impugned order clearly speak that the action of the learned Magistrate was not only unjustified and uncalled for but also amounted to gross abuse of the process of the Court, as the impugned order was passed at the fag end of the trial of the accused in the case and after allowing the order of discharge in favour of the petitioner remaining in force for almost a decade. Permitting such an order to remain in force is likely to give rise to a wrong practice by the Lower Courts and therefore, such a practice is required to be checked before it becomes a rule of procedure. 11. In the result, the impugned order is set aside and the proceedings initiated by the learned Magistrate against the petitioner on the basis of that order are quashed and dropped. The Trial Court shall proceed to dispose of the case against the main accused as expeditiously as possible.A copy of this judgment be sent to the Director Prosecution, Rajasthan, Jaipur, for information and n/a, if necessary.The judgment and order may also be placed before Hon'ble the Chief Justice for his kind consideration about issuing necessary instructions, to the Magistracy, if considered necessary.Petition allowed. *******