Police, CBI/SIT vs Nalini & others (Rajiv Gandhi Assassination case)
observed at para Nos.235 to 239 at page No.337 referring to Section 300 (1)
Cr.P.C in saying the well known maxim nemo debet bis vexari pro
eadem causa (no person should be twice vexed for the same offence) is
the well established common rule for no one should be put to peril twice
for the same offence. The principle which is sought for incorporation into
Section 300 Cr.P.C is that no man should be vexed with more than one trial
for offences arising out of identical acts committed by him. When an
offence has already been the subject of judicial adjudication, whether it
ended in acquittal or conviction, it is negation of criminal justice to allow
repetition of the adjudication in a separate trial on the same set of facts.
Though Article 20 (2) of the Constitution of India embodies a
protection against a second trial after a conviction of the same offence,
the ambit of the clause is narrower than the protection afforded by Section
300 Cr.P.C as held in Manipur Administration supra that if there is no
punishment for the offences as a result of the prosecution, Article 20 (2)
has no application for the clause embodies the principle of autrefois
convict, whereas, Section 300 Cr.P.C combines both autrefois convict and
autrefois acquit.
Section 300 has further widened the protective wings by
debarring a second trial against the same accused on the same facts, even
for a different offence, if a different charge against him for such offence
could have been made under Section 221 (1) Cr.P.C, or he could have been
convicted for such other offence under Section 221(2) Cr.P.C.
As the contours of the prohibition are so widely enlarged, it
cannot be contended that the second trial can escape therefrom on the
mere premise that some more allegations were not made in the first trial.
From the above propositions with application of the facts on
hand, once there is a clear acquittal not even on a benefit of doubt for the
alleged offence of committing dacoity, the other offence for which the
present prosecution laid to charge, covered by committal proceedings from
pre-trial cognizance by the learned Magistrate under Section 209 Cr.P.C for
the alleged offence under Section 400 Cr.P.C as member of gang of dacoits
does not arise and thereby the proceedings are liable to quashed from the
bar under Section 300 Cr.P.C and from the precedents supra which rules as
law of the land.
HYDERABAD HIGH COURT
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
Dated:12-11-2015
Konakalla Suresh @ Mukku Suresh @ Rushi & 9 others....
Vs
The State of Telangana Rep. by Public Prosecutor High Court at Hyderabad &
another.Respondents
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL PETITION No.7868 of 2015
Citation: 2016 CR LJ 1994
The petitioners/A-1 to A-10 in Crime No.279 of 2009 of SHO,
Chotutuppal, registered for the offences punishable under Section 400 IPC
and police after registration of the crime and after completion of
investigation filed final report against them that was taken cognizance by
the learned Judicial First Class Magistrate, at Ramannapet as PRC No.8 of
2015 to commit the case to the Court of Sessions for the offence under
Section 400 IPC, they filed the present criminal petition saying earlier on
the same allegations they faced trial in S.C. No.61 of 2008 and SC No.34 of
2010 which cases were ended in acquittal after trial, thereby, the present
PRC proceedings are barred by Section 300 Cr.P.C, for the reason even in
the earlier offence mentioned as 395 IPC and presently mentioned as if
under Section 400 IPC.
2) Heard learned counsel for the petitioners as well as 1st
respondentState and the 2nd respondentSHO, Choutuppal represented by
learned public prosecutor and perused the material on record.
3) Section 400 IPC and Section 395 IPC respectively read as
under:
400.Punishment for belonging to gang of dacoits
Whoever, at any time after the passing of this Act, shall belong
to a gang of persons associated for the purpose of habitually
committing dacoity, shall be punished with [imprisonment for
life], or with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.
395.Punishment for dacoityWhoever commits dacoity
shall be punished with [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and
shall also be liable to fine.
4) From the above, the punishment for the offence under
Section 400 IPC is for belonging to gang of dacoits by associated in the gang
for the purpose of habitually committing dacotiy, there was a punishment
for the offence under Section 395 IPC as per dacoity defined under Section
391 IPC. Section 391 IPC defines Dacoity when five or more persons
conjointly commit or attempt to commit a robbery, or where the whole
number of persons conjointly committing or attempting to commit a
robbery, and persons present and aiding such commission or attempt,
amount to five or more, every person so committing, attempting or aiding,
is said to commit dacoity.
5) Who ever commits dacoity (supra) shall be punished with
imprisonment for life or with rigorous imprisonment for a term which may
extend to 10 years and also liable to fine and the punishment for Section
400 IPC is also with life or with rigorous imprisonment for a term which
may extend to 10 years and shall also be liable to fine. What Section 300
IPC speaks in the following lines:
300.Person once convicted or acquitted not to be tried
for same offence: (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 sub-section (1) of Section 221, or
for which he might have been convicted under sub-section (2)
thereof.
(2) A person acquitted or convicted of any offence
may be afterwards tried, with the consent of the State
Government, for any distinct offence for which a separate
charge might have been made against him at the former trial
under sub-section (1) of Section 220.
(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 tried for such last mentioned
offence, if the consequences had not happened, or were not
known to the Court to have happened, at the time 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) A person discharged under Section 258 shall not
be tried again for the same offence except with the consent of
the Court by which he was discharged or of any other Court to
which the first mentioned Court is subordinate.
(6) Nothing in this Section shall affect the provisions
of Section 26 of the General Clauses Act, 1897 (10 of 1897) or
of Section 188 of this Code.
6) As per Section 300 Cr.P.C wording earlier acquittal or
conviction as the case may be once tried is a bar for trial again for the
same offence or even on same facts for any other offence even for which a
different charge from the one made against him under Section 221 (1) or
(2) Cr.P.C and what is stated by sub-section (4) of Section 300 Cr.P.C is
where the Court by which he firstly tried the offence was not competent to
trial. Sub-section (6) of Section 300 Cr.P.C speaks nothing in Section 300
Cr.P.C shall affect the provisions of Section 26 of General Clauses Act.
What Section 26 of General Clauses Act 10 of 1987 (equal to Section 20 of
the A.P General Clauses Act 1 of 1891) speaks is when an act or omission
constitutes an offence under two or more enactments, then the offender
shall be liable to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the same
offence. No doubt, what General Clauses Act supra speaks is the bar of
second punishment to say for one offence under one enactment and not
punishments under more than one enactment. Thus, to punish for the first
one under one enactment or the second one under another enactment.
Same is also laid down by this Court with reference to it in P.Bapanaiah vs
Unknown . In fact, Article 20 of Constitution of India speaks once
convicted again cannot be tried for the same offence that speaks once
there is first offence tried and convicted a bar again for the same or on the
same facts for a different offence.
7) A perusal of the above show so far as Section 26 of General
Clauses Act, 1897 speaks where an act or omission constitutes an offence
under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments, but shall
not be liable to be punished under the two enactments to say twice for the
same offence. Thus, there is no bar for trial under different enactments or
for different offences, but for conviction under different enactments for
same offence. Where as Article 20 (2) of the Constitution of India speaks,
no person shall be prosecuted and punished for the same offence more
than once either for the same offence or on the same facts even it is under
one enactment, provided the first trial ends in conviction, otherwise of no
bar, whereas coming to Section 300 Cr.P.C, once tried by a competent
Court and either acquitted or convicted the accused cannot be tried for the
same offence nor on the same facts for the other offence again for which it
constitutes different charge.
The illustration (a) of Section 300 Cr.P.C very clear in this regard
which speaks is as under:
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, with theft simply, or with criminal breach of trust.
8) What the Apex Court held under Section 26 of the General
Clauses Act, 1897 in T.S.Baliah vs T.S.Rengachari as there is no bar for
the false statement in the verification of income tax return for the
prosecution under Section 52 of the Act and also under Section 177 of IPC
he takes one trial for both offences under the different enactments but for
a bar to the punishment of the offender twice for the same act or omission
that constitutes an offence. Thus, if at all, the accused could not have
charged at that time while charging for the offence under Section 395 IPC
also, for the offence under Section 400 IPC for the Court to frame charges
either separately for the distinct offences under Section 218 Cr.P.C if not
the offence proved the other offences charged also under Sections 220 read
with Sections 223 and 224 Cr.P.C.
9) In this regard, the learned counsel for the petitioner/ accused
from the facts in relation to any dispute the earlier crime it was tried and
for present charge, one and the same, placed reliance upon the expression
of the five judge bench of Apex Court answered a reference in Manipur
Administration, Manipur vs Thockchom Bira Singh in resulting
conflicting expressions in Pritam Singh vs State of Punjab and
Gurucharn Singh vs State of Punjab . The reference answered was as per
Section 403 Cr.P.C, 1898 = 300 Cr.P.C, 1973 does not preclude the
applicability of rule issue of estoppel, the rule being one which is in
accordance with sound principles and supported by high authority find
there being a decision of Supreme Court which has accepted it as a proper
one to be adopted. We do not see any reason to discard it. The expression
in Pritham Singh supra is thus held rightly decided. In Pritham Singhs
case, it was observed that where the issue has been tried by a competent
Court on a former occasion and a finding has been reached in favour of an
accused, such a finding would constitute an estoppel or res judicata against
the prosecution, not as a bar to the trial and conviction of the accused for
a different or distinct offence, but as precluding the reception of evidence
to disturb that finding of fact when the accused is tried subsequently even
for a different offence which might be permitted by the terms of Section
403 (2), the verdict is binding and conclusive in all subsequent proceedings
between the parties for adjudication. It was observed that, Pritham Singh
supra referred and considered on several occasions and never dissented
from, though in some of them it was distinguished on facts. It was
observed that, issue estoppel does not prevent the trial of any evidence as
does autrofois acquit; but only precludes evidence being led to prove a
fact in issue, as regards which evidence has already been led and a specific
finding recorded at an earlier criminal trial before a Court of competent
jurisdiction. In Pritham Singh supra, at para Nos.15 to 20 it is categorically
held relating to 1950 AC 458 that the effect of a verdict of acquittal
pronounced by a competent Court on lawful charge and after a lawful trial,
is not completely stayed, by saying that the person acquitted cannot be
tried again for the same offence. To that it must be added that, the
verdict is binding and conclusive in all subsequent proceedings between the
parties to the adjudication. The maxim res judicata pro veritate
accipitur is no less applicable to criminal than to civil proceedings. Thus,
an acquittal of an accused in a trial under Section 19 (f) of the Arms Act,
tantamounts to a finding that the prosecution had failed to establish the
possession of certain revolver by the accused as alleged. The possession of
that revolver was a fact in issue, which had to be established by the
prosecution before he could be convicted of the offence under Section 19
(f) of the Act. That fact was found against the prosecution and could not
be proved against the accused in the subsequent proceedings between the
Crown and him, under a charge of murder. The evidence against him in
the latter proceedings, would have to be considered regardless of the
evidence of recovery of the revolver from him.
10) The Apex Court later in State through Superintendent of
Police, CBI/SIT vs Nalini & others (Rajiv Gandhi Assassination case)
observed at para Nos.235 to 239 at page No.337 referring to Section 300 (1)
Cr.P.C in saying the well known maxim nemo debet bis vexari pro
eadem causa (no person should be twice vexed for the same offence) is
the well established common rule for no one should be put to peril twice
for the same offence. The principle which is sought for incorporation into
Section 300 Cr.P.C is that no man should be vexed with more than one trial
for offences arising out of identical acts committed by him. When an
offence has already been the subject of judicial adjudication, whether it
ended in acquittal or conviction, it is negation of criminal justice to allow
repetition of the adjudication in a separate trial on the same set of facts.
11) Though Article 20 (2) of the Constitution of India embodies a
protection against a second trial after a conviction of the same offence,
the ambit of the clause is narrower than the protection afforded by Section
300 Cr.P.C as held in Manipur Administration supra that if there is no
punishment for the offences as a result of the prosecution, Article 20 (2)
has no application for the clause embodies the principle of autrefois
convict, whereas, Section 300 Cr.P.C combines both autrefois convict and
autrefois acquit.
12) Section 300 has further widened the protective wings by
debarring a second trial against the same accused on the same facts, even
for a different offence, if a different charge against him for such offence
could have been made under Section 221 (1) Cr.P.C, or he could have been
convicted for such other offence under Section 221(2) Cr.P.C.
13) As the contours of the prohibition are so widely enlarged, it
cannot be contended that the second trial can escape therefrom on the
mere premise that some more allegations were not made in the first trial.
14) From the above propositions with application of the facts on
hand, once there is a clear acquittal not even on a benefit of doubt for the
alleged offence of committing dacoity, the other offence for which the
present prosecution laid to charge, covered by committal proceedings from
pre-trial cognizance by the learned Magistrate under Section 209 Cr.P.C for
the alleged offence under Section 400 Cr.P.C as member of gang of dacoits
does not arise and thereby the proceedings are liable to quashed from the
bar under Section 300 Cr.P.C and from the precedents supra which rules as
law of the land.
15) Having regard to the above, the Criminal Petition is allowed
and all the proceedings relating to PRC No.8 of 2015 on the file of Judicial
First Class Magistrate, at Ramannapet, are hereby quashed. The bail bonds
of the petitioners/ accused Nos.1 to 10, if any, shall stand cancelled.
16) Miscellaneous petitions, if any pending in this Criminal
Petition, shall stand closed.
_________________________
Dr. B. SIVA SANKARA RAO, J
Date:12.11.2015
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