1957 JTR(SC) 36
1957 AIR(SC) 592 ; 1957 AllLJ 567 ; 1957 BLJR 376 ; 1957 CrLJ 892 ; 1957 JLJ 801 ; 1957 MLJ(Cri) 482 ; 1957 MPLJ 649 ; 1957 SCJ 519 ; 1957 SCR 868 ; 1957 KHC 624 ; 1957 KLT(Online) 1418
SUPREME COURT OF INDIA
5th April 1957
S.R. DAS, C.J.I., IMAM, S.K. DAS, GOVINDA MENON AND SARKAR, JJ.
State of M.P., Appellant
Versus
Veereshwar Rao Agnihotri, Respondent.
Criminal Appeals Nos. 130 and 131 of 1954.
Advocates appeared
Messrs, Shiv Dayal and R.H. Dhebar, Advocates, for Appellant; Mr. B.C. Mishra, Advocate, amicus curiae, for respondent.
Act
Referred
:CONSTITUTION OF INDIA : Art.20
CRIMINAL PROCEDURE CODE : S.403
GENERAL CLAUSES ACT : S.26
INDIAN PENAL CODE : S.409
PREVENTION OF CORRUPTION ACT : S.7, S.5(4), S.5(2)
Article 20 (2)-Doctrine of autrefois acquit-Offence of criminal misconduct punishable under S. 5(2) of the Prevention of Corruption Act, 1947, not identical with an offence under S. 409, I P. C.-Section 403 (I) of Criminal Procedure Code not applicable.
Two alternate changes in the same trial-Acquittal of the accused in one will not prevent the conviction on the other General Clauses Act, Section 26.
The respondent was a Tax-Collector in the Municipal Committee of Lashkar, Gwalior, and was prosecuted in the Court of the City Magistrate and Additional District Magistrate Lashkar, firstly by means of a challan dated October 23, 1951, for offences under Ss. 468, 477-A and 409 of the Indian Penal Code and S. 5 (2) of the Prevention of Corruption Act, 1947, in that he misappropriated a sum of more than Rs. 7,000, entrusted to him in the capacity of Tax-Collector, and during the course of the said transaction committed various offences. On July 4, 1952 a second complaint was filed against him, in the same Court under the identical sections for having misappropriated in 1950 a sum of Rs. 3,500 in all under similar circumstances. While these two complaints were pending in the trial Court, on July 23, 1952, the Criminal Law Amendment Act, 1952 came into force and by S. 6 of that statute, the State Government was authorised to appoint a Special Judge for the trial of an offence under sub-section (2) of S.5 of the Prevention of Corruption Act, 1947. Section 7 of the same statute laid down that notwithstanding anything contained in the Criminal Procedure Code, or any other law for the time being in force, an offence under S. 5(2) of the Prevention of Corruption Act could be tried only by a Special Judge appointed under S. 6 of the Criminal Law Amendment Act. Sub-clause (b) of S. 7 laid down that when trying a case, tribal exclusively by a Special Judge under this statute, he may also try any other offence with which this accused may under the Code of Criminal Procedure be charged at the same trial. The last section of the Criminal Law Amendment Act aforesaid provided that all cases triable by a Special Judge under S. 7 which immediately before the commencement of the Act were pending before any Magistrate shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases.
In accordance with the above-mentioned provisions, the respondents cases pending before the City Magistrate and Additional District Magistrate, Lashkar, were transferred to a Special Judge constituted for the purpose. By separate judgments dated June 5, 1953, the Special Judge found the respondent guilty of an offence under S. 409 of Indian Penal Code and sentenced him to rigorous imprisonment for three years. He, however, passed on order of acquittal under Ss. 468 and 477-A, I.P.C. As regards the charge under S. 5(2) of the Prevention of Corruption Act 1947, he was of the view that since the provisions of sub-section (4) of S. 5 of the Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub-section (2) of S. 5 of the Act without an order of a 1st Class Magistrate, had not been complied with, the foundation for preferring a complaint had not been established and, therefore, there was an illegality which affected the jurisdiction of the court to try the case, the result being that the accused could not be tried for that offence. Such being the case, no formal order of acquittal was passed by the trial court.
Aggrieved by the convictions under S. 409, I.P.C., the respondent preferred two appeals to the High Court of Madhya Bharat which were consolidated by that court, and by a common judgment that court applying the doctrine of autrefois acquit held that when once on the same facts I the trial Judge found that the respondent could not be found guilty of an offence under S. 5 (2) of the Prevention of Corruption Act, it was tantamount to an acquittal for that offence in which case no conviction could be had under section 409 of the Indian Penal Code. The respondent was, therefore, acquitted. The State was granted special leave to appeal to the Supreme Court against the order of acquittal.
Held (allowing the appeal): (1) The offence of criminal misconduct punishable under section 5 (2) of the Prevention of Corruption Act, 1947, is not identical in essence, import and content with an offence under section 409 of the Indian Penal Code. The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate section 409 of the Indian Penal Code. It has been held that the offence created under .section 5 (1) (c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 of the Indian Penal Code and therefore there can be no question of section 5 (I) (c) repealing section 405 I.P.C.1 In view of the above pronouncement the view taken by the learned Judge of the High Court that the two offences are the one and the same is wrong, and if that is so, there can be no objection to a trial and conviction under section 409 of the Indian Penal Code even if the respondent has been acquitted of an offence under section 5 (2) of the Prevention of Corruption Act, 1947. Section 403 (1) of the Criminal Procedure Code only prohibits a subsequent trial for the same offence, or on the same facts for any other offence for which a different charge from the one made against the accused person might have been made under section 236 of the Criminal Procedure Code, or for which he might have been convicted under section 237 when the earlier conviction or acquittal for such an offence remains in force. It is obvious that section 403 (I) has no application to the facts of the present case where there was only one trial for several offences of some of which the accused person was acquitted while being convicted of one. On this ground alone the order of the High Court is liable to be set aside. This High Court also relied on Art. 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the well-known maxim "Nemo debet bis vexari, si constat curice quod sit pro una et eadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause)" embodied in Art. 20 cannot apply.
1. Om Prakash v. State of D.P., A.I.R. 1957 S.C. 458.
(2) The argument on behalf of the appellant that where there are two alternate charges in the same trial, the fact that the accused is acquitted of one of them will not prevent the conviction on the other, is also well founded. Section 26 of the General Clauses Act can be called in aid in support of this proposition. There is no question of double jeopardy.
Two alternate changes in the same trial-Acquittal of the accused in one will not prevent the conviction on the other General Clauses Act, Section 26.
The respondent was a Tax-Collector in the Municipal Committee of Lashkar, Gwalior, and was prosecuted in the Court of the City Magistrate and Additional District Magistrate Lashkar, firstly by means of a challan dated October 23, 1951, for offences under Ss. 468, 477-A and 409 of the Indian Penal Code and S. 5 (2) of the Prevention of Corruption Act, 1947, in that he misappropriated a sum of more than Rs. 7,000, entrusted to him in the capacity of Tax-Collector, and during the course of the said transaction committed various offences. On July 4, 1952 a second complaint was filed against him, in the same Court under the identical sections for having misappropriated in 1950 a sum of Rs. 3,500 in all under similar circumstances. While these two complaints were pending in the trial Court, on July 23, 1952, the Criminal Law Amendment Act, 1952 came into force and by S. 6 of that statute, the State Government was authorised to appoint a Special Judge for the trial of an offence under sub-section (2) of S.5 of the Prevention of Corruption Act, 1947. Section 7 of the same statute laid down that notwithstanding anything contained in the Criminal Procedure Code, or any other law for the time being in force, an offence under S. 5(2) of the Prevention of Corruption Act could be tried only by a Special Judge appointed under S. 6 of the Criminal Law Amendment Act. Sub-clause (b) of S. 7 laid down that when trying a case, tribal exclusively by a Special Judge under this statute, he may also try any other offence with which this accused may under the Code of Criminal Procedure be charged at the same trial. The last section of the Criminal Law Amendment Act aforesaid provided that all cases triable by a Special Judge under S. 7 which immediately before the commencement of the Act were pending before any Magistrate shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases.
In accordance with the above-mentioned provisions, the respondents cases pending before the City Magistrate and Additional District Magistrate, Lashkar, were transferred to a Special Judge constituted for the purpose. By separate judgments dated June 5, 1953, the Special Judge found the respondent guilty of an offence under S. 409 of Indian Penal Code and sentenced him to rigorous imprisonment for three years. He, however, passed on order of acquittal under Ss. 468 and 477-A, I.P.C. As regards the charge under S. 5(2) of the Prevention of Corruption Act 1947, he was of the view that since the provisions of sub-section (4) of S. 5 of the Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub-section (2) of S. 5 of the Act without an order of a 1st Class Magistrate, had not been complied with, the foundation for preferring a complaint had not been established and, therefore, there was an illegality which affected the jurisdiction of the court to try the case, the result being that the accused could not be tried for that offence. Such being the case, no formal order of acquittal was passed by the trial court.
Aggrieved by the convictions under S. 409, I.P.C., the respondent preferred two appeals to the High Court of Madhya Bharat which were consolidated by that court, and by a common judgment that court applying the doctrine of autrefois acquit held that when once on the same facts I the trial Judge found that the respondent could not be found guilty of an offence under S. 5 (2) of the Prevention of Corruption Act, it was tantamount to an acquittal for that offence in which case no conviction could be had under section 409 of the Indian Penal Code. The respondent was, therefore, acquitted. The State was granted special leave to appeal to the Supreme Court against the order of acquittal.
Held (allowing the appeal): (1) The offence of criminal misconduct punishable under section 5 (2) of the Prevention of Corruption Act, 1947, is not identical in essence, import and content with an offence under section 409 of the Indian Penal Code. The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate section 409 of the Indian Penal Code. It has been held that the offence created under .section 5 (1) (c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 of the Indian Penal Code and therefore there can be no question of section 5 (I) (c) repealing section 405 I.P.C.1 In view of the above pronouncement the view taken by the learned Judge of the High Court that the two offences are the one and the same is wrong, and if that is so, there can be no objection to a trial and conviction under section 409 of the Indian Penal Code even if the respondent has been acquitted of an offence under section 5 (2) of the Prevention of Corruption Act, 1947. Section 403 (1) of the Criminal Procedure Code only prohibits a subsequent trial for the same offence, or on the same facts for any other offence for which a different charge from the one made against the accused person might have been made under section 236 of the Criminal Procedure Code, or for which he might have been convicted under section 237 when the earlier conviction or acquittal for such an offence remains in force. It is obvious that section 403 (I) has no application to the facts of the present case where there was only one trial for several offences of some of which the accused person was acquitted while being convicted of one. On this ground alone the order of the High Court is liable to be set aside. This High Court also relied on Art. 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the well-known maxim "Nemo debet bis vexari, si constat curice quod sit pro una et eadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause)" embodied in Art. 20 cannot apply.
1. Om Prakash v. State of D.P., A.I.R. 1957 S.C. 458.
(2) The argument on behalf of the appellant that where there are two alternate charges in the same trial, the fact that the accused is acquitted of one of them will not prevent the conviction on the other, is also well founded. Section 26 of the General Clauses Act can be called in aid in support of this proposition. There is no question of double jeopardy.
B.C.MISHRA, R.H.Dhebar, SHIV DAYAL SHRIVASTAVA
Judgement
GOVINDA MENON, J. :- The State of Madhya Bharat, which after 1st November 1956, had become merged in the present State of Madhya Pradesh, had obtained special leave from this Court on 11th April 1954, to appeal against the judgment and order of acquittal passed in favour of the respondent herein, by the High Court of Judicature of Madhya Bharat on 11th September 1953, in two consolidated Criminal Appeals Nos. 42 and 48 of 1953, by the identical appellant before that Court. The question for decision in these appeals is how far the High Court was justified in ordering the acquittal.
2. The respondent herein was a Tax-Collector in the Muncipal Committee of Lashkar, Gwalior, and was prosecuted in the Court of the City Magistrate and Additional District Magistrate, Lashkar firstly by means of a challan dated 23rd October 1951, for offences under Ss. 468, 477-A and 409 of the Indian Penal Code and S. 5 (2) of the Prevention of Corruption Act II of 1947, in that he misappropriated a sum of more than Rs. 7, 000, entrusted to him in the capacity of Tax-Collector, and during the course of the said transaction committed various offences. On 4th July 1952, a second complaint was filed against him in the same Court under the identical sections for having misappropriated in 1950 a sum of Rs. 3,500, in all under similar circumstances. While these two complaints were pending in the trial Court, on 28th July, 1952 the Criminal Law Amendment Act (Act No.46 of l952) came into force and by S.6 of that statute, the State Government was authorised to appoint a Special Judge for the trial of an offence under sub-s. (2) of S. 5 of the Prevention of Corruption Act II of 1947. Section 7 of the same statute laid down that notwithstanding anything contained in the Criminal Procedure Code, or any other law for the time being in force, an offence under S. 5 (2) of the Prevention of corruption Act could be tried only by a Special Judge, appointed under S. 6 of the Criminal Law Amendment Act. Sub-cl. (b) of S. 7 laid down that when trying a case, triable exclusively by a Special Judge under this statute, he may also try any other offence with which the accused may under the Code of Criminal Procedure, be charged at the same trial. The last section of the Criminal Law Amendment Act aforesaid provided that all cases triable by a Special Judge under S.7 which immediately before the commencement of the Act were pending before any Magistrate, shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases. In accordance with the above mentioned provisions of the statute, the cases pending before the City Magistrate and Additional District Magistrate, Lashkar, were transferred to a Special Judge constituted for the purpose before whom they were numbered as Case No.3 of 1953 and No.6 of 1953. After the prosecution evidence was over, on 10th March 1953, the Special Judge framed charges under all the sections complained against. By separate judgments dated 5th June 1953 the Special Judge found the respondent guilty of an offence under S. 409 of the Indian Penal Code and sentenced him to rigorous imprisonment for three years. He, however, passed an order of acquittal under Ss. 468 and 477-A of the Indian Penal Code. As regards the charge under S. 5 (2) of Act II of 1947 the learned Special Judge was of the view that since the provisions of sub-s. (4) of S. 5 of the Prevention of Corruption Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub-s.(2) of S. 5 of the Prevention of Corruption Act without an order of a 1st Class, Magistrate, had not been complied with, the foundation for preferring a complaint had not been established and, therefore, there was an illegality which affected the jurisdiction of the Court to try the case, the result being that the accused could not be tried for that offence. Such being the case, no formal order of acquittal was passed by the trial Court.
3. Aggrieved by the convictions under S. 409 of the Indian Penal Code, the respondent preferred two appeals to the High Court of Madhya Bharat which were consolidated by that Court, and by a common judgment that Court applying the doctrine of autrefois acquit held that when once on the same facts the trial Judge found that the respondent could not be found guilty of an offence under S. 5 (2) of the Prevention of Corruption Act, it was tantamount to an acquittal for that offence in which case no conviction could be had under S. 409 of the Indian Penal Code. The respondent was, therefore, acquitted. As mentioned already, the State has been granted special leave to appeal against the orders of acquittal.
4. The correctness of the conclusion of the High Court has been challenged in more ways than one by the appellant s counsel. Firstly, it is argued that the offence under S. 5 (2) of the Prevention of corruption Act and that under S. 409 of the Indian Penal Code, are not the same and such being the case, granting that the order of the Special Judge amounted to an acquittal under S. 5 (2) of the Prevention of Corruption Act, still that would not bar the conviction of the respondent under S. 409 of the Indian Penal Code. Secondly, it is pointed out that when at the same trial there are two alternative charges like those with which we are now concerned, acquittal of the accused under one charge is no impediment to his conviction on the other; and lastly it is contended that any defect in the investigation would not amount to an illegality which would invalidate the trial and conviction if the proceedings culminate that way.
5. This Court has recently held in Om Parkash Gupta v. State of U.P., Criminal Appeals Nos. 42 of 1954 and 3 and 97 of 1955, that the offence of criminal misconduct punishable under S. 5 (2) of the Prevention of Corruption Act 11 of 1947 is not identical in essence, import and content with an offence under S. 409 of the Indian Penal Code. The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate S. 409 of the Indian Penal Code. In the common judgement in those appeals the conclusion has been expressed in the following words:
"Our conclusion, therefore is that the offence created under S. 5 (1) (c) of the Prevention of Corruption Act is distinct and separate from the one under S.405 I.P.C. and, therefore, there can be no question of S.51. (c) repealing S. 405, I.P.C."
6. In view of the above pronouncement, the view taken by the learned Judge of the High Court that the two offences are one and the same, is wrong, and if that is so, there can be no objection to a trial and conviction under S. 409 of the Indian Penal Code even if the respondent has been acquitted of an offence under S. 5 (2) of the Prevention of Corruption Act 2 of 1947. Section 403 (1) of the Criminal Procedure Code only prohibits a subsequent trial for the same offence or on the same facts for any other offence for which a different charge from the one made against an accused person might have been made under S. 236 of the Criminal Procedure Code, or for which he might have been convicted under S. 237 when the earlier conviction or acquittal for such an offence remains in force. It is obvious that S.403 (1) has no application to the facts of the present case, where there was only one trial for several offences, of some of which the accused person was acquitted while being convicted of one. On this ground alone the order of the High Court is liable to be set aside. The High Court also relied on Art. 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the well-known maxim "Nemo debit bis vexari, si constat curice quod sit pro una et cadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause) embodied in Art. 20 cannot apply.
7. The next argument on behalf of the appellant is that where there are two alternate charges in the same trial. The fact that the accused is acquitted of one of them, will not prevent the conviction on the other, is also well-founded. Section 26 of the General Clauses Act can be called in aid in support of this proposition. There is no question of double jeopardy. Section 26 runs as follows:
"Provisions as to offences punishable under two or more enactments: 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 twice for the same."
We are, therefore, of the opinion that the learned Judge s view on this aspect of the case is also unsound.
8. In view of what has been stated above, it is unnecessary to deal with the last contention of the learned counsel for the appellant except merely to state that the Special Judge had jurisdiction to try the accused person under S. 7 of the Prevention of Corruption Act, 1947.
9. The result is that the appeals succeed, the order of the High Court acquitting the respondent of an offence under S.409 of the Indian Penal Code is set aside and the appeals are remanded to the High Court of Madhya Pradesh for re-hearing on the merits.
Appeals allowed.
For Citation : AIR 1957 SC 592