Gujarat High Court
Gulabbhai Dhaklubhai Bhoya vs State Of Gujarat on 12 June, 2025
NEUTRAL CITATION
R/SCR.A/2334/2017 ORDER DATED: 12/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2334 of 2017
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GULABBHAI DHAKLUBHAI BHOYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RUSHABH SHAH for MR HARDIK H DAVE(6295) for the Applicant
NOTICE SERVED for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/06/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed to quash and set aside the order passed by the learned JMFC, Dharampur in Criminal Case No.323/2014 vide Exh.:11 dated 23.08.2016 and also to quash and set aside the order passed by the learned Second Ad-hoc Additional and Sessions Judge, Dharampur in Criminal Application No.92/2016 Revision dated 31.01.2017 and quash and set aside entire proceedings of Criminal Case No.323/2014 pending in the Court of learned JMFC, Dharampur.
2. Brief facts of the case are as under:-
2.1 The petitioner came to be arrested with respect to one complaint registered with Dharampur Police Station vide Page 1 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined Complaint No.2/2013 for the offence under Section 124 of the Gujarat Police Act. The brief fact of that complaint was that during regular police patrolling, Police Officer received confidential information that the petitioner was doing business of illegal selling of petrol, diesel and kerosene without requisite permission. On the basis of the said confidential information, two panch-witnesses were called and the premises of the petitioner were raided. During the raid, 335 liters of diesel, 160 liters of petrol and 80 liters of kerosene was confiscated which amounted to Rs.31,495/- and the petitioner was arrested under the offence of Section 124 of the Gujarat Police Act. The petitioner was chargesheeted and he had accepted the charge of Section 124 of the Gujarat Police Act in Criminal Case No.351/2013.
2.2 The petitioner was convicted and a fine of Rs.100/- was imposed on him and the same was paid.
2.3 That subsequently, another FIR against the present petitioner came to be filed with respect to the same raid which was conducted on 15.03.2013. The second FIR was registered as C.R.No.II-3062/2013 under Section 3 of the Essential Commodities Act, 1955 (in short "the Act"). On completion of investigation, the petitioner was chargesheeted and Criminal Case No.323/2014 was registered against the present petitioner.
Pending the trial, the petitioner had given an application vide Exh.:11 to drop the proceedings against the present petitioner as according to the petitioner, the second FIR under Essential Commodities Act is in violation of Article 20(2) of the Constitution of India r/w Section 300 of the Code of Criminal Page 2 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined Procedure, 1973. The said application came to be rejected and the petitioner had preferred a revision application. The said revision application was also rejected.
2.4 Hence, present petition.
3. Learned advocate, Mr. Rushabh Shah appearing for the petitioner, while assailing the concurrent findings arrived at by both the learned courts below would mainly argue that for the same fact, the prosecution has registered two different offences. In the first offence, the accused upon admission, had been convicted and that conviction was in force, and yet another offence on the same fact was registered as Criminal Case No. 323 of 2014 and again, the petitioner was sought to be prosecuted for the same facts. He would further submit that the principle of double jeopardy as well as law enshrined in Article 20 of the Constitution of India so also provisions of section 300 (1) of the CRPC is attracted in the present case.
3.1 Highlighting the facts of the case, learned advocate Mr. Shah would submit that on 15th March 2015, the police has raided the premises of the accused person and found illegal possession of petrol worth 160 litre, diesel worth 335 litre and kerosene worth 80 litre and therefore, offence under section 124 of the Gujarat Police Act was registered against the petitioner. The said offence was registered as Criminal Case No. 351 of 2013 and pursuant to issuance of the process, the petitioner remained present before the concerned court and admitted his guilt. The petitioner was convicted in the offence and was ordered to pay penalty of Rs.100/-. He would further submit Page 3 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined that then, on the same facts of the case, another offence was registered under Section 3 of the Act. Thus, he would submit that so long the order of conviction in first criminal case is in in force against the petitioner, he cannot be sent for trial by registering second offence on the same fact. Learned advocate Mr. Shah would further submit that the provisions of offence under section 300 of the CRPC is squarely applicable to the facts of the present case and the principle of double jeopardy would cover and clinch the issue. However, both the learned courts below have declined to accept the same and dismissed the plea raised by the petitioner for closing and dropping the case and thereby, committed serious but gross error of understanding the principle of double jeopardy and provision of Article 20 of the Constitution of India having due reflection in section 300 of the Code. By making aforesaid submission, learned advocate Mr. Shah would submit that the petition may be allowed.
3.2 To buttress his submission, learned advocate Mr. Rushabh Shah read upon the judgement in case of Manik Hiru Jhangiani Vs. State of MP, 2023 (16) SCR 551 and in case of P. Manikandan Vs. CBI, 2025 (0) AIR(SC) 237 so also in case of T.P. Gopalkrishnan Vs. State of Kerala, 2022 (14) SCC 323.
3.3 Upon such submission, learned advocate Mr. Rushabh Shah prays to allow this petition.
4. Per contra, learned APP appearing for the State would submit that the first offence was registered under section 124 of the Gujarat Police Act, whereby since the petitioner was failed to offer satisfactory explanation in accordance with the possession Page 4 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined of the property, the offence was registered. However, during the investigation, it was found that petrol, diesel and kerosene kept by the petitioner in his premises is in violation of provisions of the Act as well as provisions of the the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order and the Gujarat Essential Articles Dealers (Regulation) Order, 1977 and therefore, another FIR was registered under section 3 of the Act. Ultimately, charge sheet was filed. He would further submit that in the subsequent trial, the learned trial court has already framed charge at Exh.3, also examine three witnesses and at present, the case is at the stage of recording further evidence. He would further submit that both the offences may arise from the same facts, but have different repercussions and are operating in different spears as well as different accusations are levelled and therefore consequences are different. The petitioner, who has admitted the offence registered under section 124 of the Gujarat Police Act cannot claim that the trial against him under section 3 of the Act on same fact would be double jeopardy. Learned advocate Mr. Shah would submit that if both the offences are entirely different, then the subsequent case is not barred by any of the provisions of section 300 of CRPC. Therefore, learned APP prays to dismiss this petition.
4.1 In addition to above submission, learned APP would submit that the Hon'ble Apex Court in case of Chandi Puliya Vs. State of West Bengal, (2023) 12 SCC 735, held that appropriate stage for considering the plea of double jeopardy is the stage of discharge i.e. prior to framing of the charge. He would further submit that the Hon'ble Apex Court in this case has clarified the Page 5 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined position of law. In the present case, since the trial has substantially progressed, and three witnesses have already been examined, the stage of raising plea of double jeopardy has already gone, and therefore, the learned trial court has rightly rejected the application and said order is rightly confirmed by the learned Sessions Court under revisional jurisdiction.
4.2 Lastly, learning APP would submit that the petition is filed under Article 227 of the Constitution of India. The concurrent findings of both the courts below are under challenge and in view of limited jurisdiction and scope of interference available under Article 227 of the Construction of India, this court should not interfere with the impugned order until finds the order erroneous and palpably illegal.
4.3 Upon such submission, learned APP prays to dismiss this petition.
5. Heard learned advocates for both the sides and perused the impugned order and other material placed on records.
6. At the outset, let refer the nature of scope of the supervisory jurisdiction under Article 227 of the Constitution of India, which is enlightened in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the Hon'ble Apex Court in para 15 and 16, held as under:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction Page 6 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Page 7 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
7. With profit, I may also refer to the judgment of the Hon'ble Apex Court in case of Sameer Suresh Gupta Through power of attorney Holder Versus Rahul Kumar Agarwal, 2013 (9) SCC 374, considering the nature of scope of the supervisory jurisdiction under Article 227 of the Constitution of India, the Hon'ble Apex Court has held as under:-
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that article were considered by the two-Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai. After considering various facets of the issue, the two-Judge Bench culled out the following principles: (SCC pp. 694-96, para 38) "(1)Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Page 8 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the subordinate court has chosen to take one Page 9 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the Page 10 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
8. The court, therefore, ordinarily should not interfere with the concurrent findings arrived at by the learned Court below under Article 227 of the Construction of India until it is established by the person assailing concurrent finding that there is miscarriage of justice and the findings arrived by the learned Court below could not have been the findings of ordinary prudence or findings are unjust and illegal. Keeping in mind the limited scope of interference with the concurrent findings and examining the facts of the case in context of the submission canvassed by learned advocate Mr. Rushabh Shah, it appears that main thrust of argument is that the second trial against the petitioner is barred under the principle of double jeopardy as well as under section 300(1) of the CRPC.
9. I may refer to section 300 (1)as under:
"SECTION 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, hot 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-Page 11 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025
NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof."
10. Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of "autrefois acquit" (previously acquitted) and autrefois convict (previously convicted). Sub- section (1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal with the exceptions. Accordingly, till an order of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt in with under sub-sections (2) to (5) of section 300 of the Code. The Hon'ble Apex Court in case of T.P. Gopalkrishnan (supra), has vividly discussed and explain import of section 300 of the Code of Criminal Procedure, 1973 in para 22 to 29, which reads as under:-
"22. Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). Sub-section (1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal with the exceptions. Accordingly, so long as an order of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt in with under sub-sections (2) to (5) of the section.
23. Section 300 of the CrPC is based on the maxim nemo deber bis vexari, si costest curiae quod sit pro una et eadem causa which means that a person cannot be tried a second time for an offence which is involved in an offence with which he was previously charged. As Page 12 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined per the decision of this Court in Vijayalakshmi vs. Vasudevan (1994) 4 SCC 656 in order to bar the trial of any person already tried, it must be shown that:
(i) he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at a trial, on the same facts,
(ii) he has been convicted or acquitted at the trial, and
(iii) such conviction or acquittal is in force.
24. The whole basis for this provision is that the first trial should have been before court of competent jurisdiction. There must have been a trial of the accused, that is to say, that there should have been a hearing and determination or adjudication of the case on merits. Where the accused has not been tried and as such convicted or acquitted, Section 300(1) shall not be applicable.
25. Section 300 of the CrPC bars the trial of a person not only for the same offence but also for any other offence on the same facts, vide Thakur Ram vs. State of Bihar AIR 1966 SC 911.
Article 20 of the Constitution:
26. Under clause (2) of Article 20, no person shall be prosecuted and punished for the same offence more than once. Article 20(2) of the Constitution of India incorporates within its scope, the plea of autrefois convict, meaning, previously convicted as known to British jurisprudence, or the plea of double jeopardy known to the American Constitution. However, the said concepts are circumscribed in Article 20(2) which provides that there should be not only a prosecution but also punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. On a plain reading the of sub clause (2) of Article 20, it is clear that the said provision bars a second prosecution only where the accused has been both prosecuted and punished for the same offence previously vide S.A. Venkataraman vs. Union of India AIR 1954 SC 375 ("S.A. Venkataraman"). But this clause does not bar Page 13 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined subsequent trial if the ingredients of the offences in the previous and subsequent trials are distinct. In Maqbool Hussain vs. State of Bombay AIR 1953 SC 325, this Court has held that clause (2) is not applicable unless the person has been both prosecuted and punished.
27. There are three conditions for the application of the clause. Firstly, there must have been previous proceeding before a court of law or a judicial tribunal of competent jurisdiction in which the person must have been prosecuted. The said prosecution must be valid and not null and void or abortive. Secondly, the conviction or acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and same set of facts, for which he was prosecuted and punished in the first proceeding. Thirdly, the subsequent proceeding must be a fresh proceeding, where he is, for the second time, sought to be prosecuted and punished for the same offence and same set of facts. In other words, the clause has no application when the subsequent proceeding is a mere continuation of the previous proceeding, for example, where an appeal arises out of such acquittal or conviction. In order to sustain a plea of double jeopardy, it must be shown that all the aforesaid conditions of this clause are satisfied, vide S.A. Venkataraman.
28. What is to be noted here is that both these provisions, i.e., Section 300 of the CrPC and Article 20 of the Constitution of India use the term 'same offence'. Before dealing with the issue at hand, it is necessary to understand what the term 'same offence' means and includes. The term 'same offence' in simple language means, where the offences are not distinct and the ingredients of the offences are identical. Where there are two distinct offences made up of different ingredients, the embargo under Article 20 of the Constitution of India, has no application, though the offences may have some overlapping features. The crucial requirement of Article 20 is that the offences are the same and identical in all respects, vide State (N.C.T. of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.
29. The concept of double jeopardy can also be Page 14 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined understood in terms of Article 21 of the Constitution of India which states that no person shall be deprived of his life or personal liberty except according to procedure established by law. 'Life' under Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider connotation; it includes the right to live with human dignity. In the celebrated judgment in the case of Maneka Gandhi vs. Union of India 1978 AIR 597, this Court gave a new dimension to Article 21, wherein it stated that the right to live includes within its ambit the right to live with dignity. Under the umbrella of Article 21, various rights like right to free legal aid, right to speedy trial, right to fair trial, etc. have been included. Similarly, protection against double jeopardy is also included under the scope of Article 21 of the Constitution of India. Prosecuting a person for the same offence in same series of facts, for which he has previously either been acquitted or has been convicted and undergone the punishment, affects the person's right to live with dignity."
11. Useful reference can also be taken from the judgement of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and another, (2012) 7 SCC 621, whereby the Hon'ble Apex Court examined the series of previous decision on plea of autrefois acquit and autrefois convict. In para 33, the Hon'ble Apex Court held as under:-
"33. In view of the above, the law is well settled that in order to attract the provisions of Art. 20(2) of the Constitution i.e. doctrine of autrefois acquit or Sec. 300 Cr.P.C. or Sec. 71 IPC or Sec. 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for Page 15 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge."
12. Before this court, the petitioner has vehemently contended that since he has admitted guilt in the offence punishable under section 124 of Gujarat Police Act, which was registered as Criminal Case No. 315 of 2013 and had been convicted, order of which is in force, filing of second FIR under the provisions of the Essential Commodities Act on the same fact being Criminal Case No. 323 2014 and trying the petitioner second time for the same fact / offence is against the principle of double jeopardy.
13. Notably, when the premises of the petitioner was raided, he was in exclusive possession of petrol, diesel and kerosene for which he could not offer satisfactory explanation and therefore offence u/s 124 of the Gujarat Police Act was registered against the petitioner. However, subsequently, another offence was also found, as the petitioner has violated the provision of Essential Commodities Act as well as the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order and the Gujarat Essential Articles Dealers (Regulation) Order, 1977. Facts of both the cases may be similar, but both the offences are different and distinct having different consequence and thus, the petitioner cannot claim that once he has been convicted in the first offence, he cannot be tried for another offence arise from the said fact. Trying him in second offence is amount to double jeopardy. Initiation of both the offences and their ingredients are separate and distinct and Page 16 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025 NEUTRAL CITATION R/SCR.A/2334/2017 ORDER DATED: 12/06/2025 undefined therefore, they can be legitimately tried. The principle of double jeopardy, by no reason, is attracted in the present case. The term "same offence" does not attract in the present case. As stated above, when two different and distinct offences are made up on different ingredients, embargo under Article 20 of the Constitution of India has no application, though both the offences have overlapping features.
14. What also can be noticed that the accused has not been tried in first offence, but he went to the court in the first offence and admitted his guilt and upon such, he was convicted and punished knowing fully well that he has committed the offence, even under the provisions of the Essential Commodities Act, however, to escape of facing trial in the offence under the Essential Commodities Act, the petitioner purposefully admitted his guilt in first offence having lesser punishment or rather punishment limited to fine only. A person having such feigned mindset cannot claim that his second and subsequent offence cannot be tried as it attracts the embargo of Article 20 of the Constitution of India.
15. In Chandi Puliya (supra), the Hon'ble Apex Court while clarifying position of law, held that plea of double jeopardy should be in consistent with the stage of discharge under section 227 of the CRPC or a stage prior to framing up the charge u/s 228 of the CRPC. Undisputedly, in case on hand, an application was filed before the learned trial Court at the stage where charge was already framed and three witnesses have already been examined. In the aforesaid situation, the petition's claim is bereft of merit.
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16. Perusal of the concurrent findings arrived at by both the courts below, I see no palpable illegality or gross error leading to miscarriage of justice, which could permit the court to exercise extraordinary and supervisory jurisdiction under Article 227 of the Constitution of India.
17. As far as judgment relied upon by learned advocate, Mr. Rushabh Shah is concerned, they are on different facts and would not assist the case of the petitioner.
18. For the foregoing reasons, the petition fails and stands dismissed. Notice discharged. Interim relief, if any, granted earlier stands vacated.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 18 of 18 Uploaded by SHEKHAR P. BARVE(HC00200) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:26:09 IST 2025