Orissa High Court
Tarini Prasad Mohanty & Another vs State Of Odisha .... Opposite Party on 28 October, 2024
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.473 of 2023
Tarini Prasad Mohanty & Another .... Petitioners
Mr. S.P. Mishra, Senior Advocate
Mr. D. Mohanty, Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. H.K. Panigrahi, ASC
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:28.10.2024
1.Instant revision in terms of Section 397 read with 401 of the Code of Criminal Procedure (shortly as 'the Cr.P.C.') is at the behest of the petitioners challenging the impugned order under Annexure-5 passed in connection with G.R. Case No.210 of 2017 by learned JMFC, Barbil and further to discharge them from the offences for which both are chargesheeted on the grounds stated.
2. The petitioners have questioned the legality and judicial propriety of the impugned decision of learned court below, whereby, an application under Section 239 Cr.P.C. filed by them seeking discharge vis-à-vis G.R. Case No.210 of 2017 corresponding to Joda P.S. Case No.56 dated 27th April, 2017 was rejected. The contention of the petitioners is that learned court below fell into serious error and committed illegality in passing the impugned order dated 26th July, 2023 under Annexure-5 notwithstanding the fact that they were prosecuted earlier for the self-same incident in respect of which Joda P.S. Case No.55 dated 27th April, 2017 was registered and for the CRLREV No.473 of 2023 Page 1 of 10 alleged offences corresponding to G.R. Case No.209 of 2017 (T.C. Case No.750 of 2017). It is pleaded that the petitioners cannot be subjected to trial once again for the same incident in respect of which there is an order of acquittal vide Annexure-6 and in case, any such exercise is undertaken with the framing of charges with respect to G.R. Case No.210 of 2017, it would amount to double jeopardy. With the above plea, the impugned order under Annexure-5 is challenged seeking discharge of the petitioners for the offences involved in G.R. Case No.210 of 2017.
3. Heard Mr. Mishra, learned Senior Advocate and Mr. Mohanty, learned counsel for the petitioners and Mr. Panigrahi, learned ASC for the State.
4. According to Mr. Mishra, learned Senior Advocate and Mr. Mohanty, learned counsel for the petitioners, the impugned order under Annexure-5 is not legally tenable and any such framing of charges and trial in connection with G.R. Case No.210 of 2017 would tantamount to double jeopardy, which is impermissible in view of Article 20(2) of the Constitution of India and Section 300 Cr.P.C., the fact which has been lost sight of by learned Court below while rejecting the application filed under Section 239 Cr.P.C. It is contended that as per Section 300 Cr.P.C., a person once tried by a the Court of competent jurisdiction for an offence and convicted or acquitted and while such conviction or acquittal remains in force, he cannot be tried again for the same offence nor on the same facts for any such offences, for which a different charge from the one made against him, might have been framed by virtue of Section 221(1) Cr.P.C or which he might have been convicted under Sub-section (2) thereof and besides that Article CRLREV No.473 of 2023 Page 2 of 10 20(2) of the Constitution of India mandates that there shall be no prosecution and punishment for the same offence more than once and since the petitioners for the alleged incident were tried and it resulted in an order of acquittal in G.R. Case No.209 of 2017 by judgment dated 22nd February, 2023 corresponding to T.C. Case No.750 of 2017, in view of the provisions referred to herein above, learned court below taking judicial notice of the same, was to discharge them instead and instead application under Section 239 Cr.P.C. was rejected which is illegal, hence, therefore, in the exercise of the revisional jurisdiction, it is required to be set aside.
5. Mr. Panigrahi, learned ASC for the State, however, justifies the impugned order under Annexure-5 for the reasons assigned by the learned Court below. The further contention is that learned Court below was to confine itself to the chargesheet and connected materials to consider, whether, a prima facie case is made out on the charges levelled against the petitioners. Considering the materials on record, Mr. Panigrahi, learned ASC further submits that since a case against the petitioners have been found established for the purpose of trial, rightly, therefore, learned Court below declined to discharge them followed by the decision under Annexure-5 and hence, committed no wrong or illegality. The principal contention is that any such trial of the petitioners would result in double jeopardy.
6. The meaning of double jeopardy and its principle can be traced back to the maxim 'nemo debet bis vexari pro una et eadem causa' which means that a man should not be vexed twice for the same offences. Such principle helps to uphold justice by preventing hardship being caused to the offenders, CRLREV No.473 of 2023 Page 3 of 10 who once have been tried earlier. According to black law's dictionary, double jeopardy means the fact of being prosecuted or sentenced twice for substantially the same offence. The above principle has also been incorporated in Article 20(2) of the Constitution of India and Section 300 Cr.P.C. which essentially prohibit multiple convictions for a single offender for the same offence.
7. Briefly stated, the principle of double jeopardy dates back to 12th century AD and during that period, there were two Courts- Royal and Ecclesiastical and it led to be a conflict between Henry II and Arch Bishop as the King wanted the clergy to be punished in the Royal Court even after the Ecclesiastical Court punished him, however, it was claimed that the act of the king would be against the principle laid down in the maxim as 'nimo bis in idipsum' which means that no man can be punished once again for the same offence and as a result, the concession that was granted by the King laid the foundation for the principle of double jeopardy. The above principle can also be found in Article 360 of the Napoleonic Code known as the code d'instruction criminelle which stipulates that no person legally acquitted can be arrested for the same offence committed by him for the second time. References to the principle of double jeopardy can also be found in the Spanish law of 13th century. But then, the first judicial pronouncement on the principle was delivered in UK (United Kingdom) in the case of Connelly Vrs. Director of Public Prosecutions in 1964, in which, it was held that to apply the doctrine of double jeopardy, the accused must be put in peril of conviction for the same offences for which he has already been punished. The principle of double jeopardy existed in India even before the CRLREV No.473 of 2023 Page 4 of 10 Constitution came into force, however, it received the constitutional validity, hence, no longer a mere statutory obligation. In fact, the following conditions are to be fulfilled for applying the principle of double jeopardy as a valid defence, such as, (a) case must be filed before a competent Court and the proceedings have taken place thereafter; (b) the decision should be delivered by the court with either the person convicted or acquitted for an offence; and finally, (c) subsequent trial of the person must be the same as the one for which he was previously prosecuted and ultimately, convicted or acquitted. In other words, the principle refers to autrefois acquit and autrefois convict which are derived from the French language and mean previously acquitted and convicted respectively. The above principles can be inferred from Article 20(2) of the Constitution of India and Section 300 Cr.P.C. The essential feature is, therefore, once a trial is concluded with a result for the same incident and offence either ended in conviction or acquittal, there can be no further prosecution and the same is prohibited, a doctrine which is embedded in the principle of double jeopardy. Keeping in view the settled legal position and the principles discussed herein before, the Court is to consider, whether, the petitioners can be discharged from the alleged offences instead of being subjected to trial being involved in G.R. Case No.210 of 2017.
8. A decision of the Apex Court in T.P. Gopalakrishnan Vrs. State of Kerala (Criminal Appeal Nos.187-188 of 2017) deals with the principles of double jeopardy, where, the appellants were tried by the Court of 1st instance and convicted, a decision which was confirmed by the High Court, however, while entertaining the appeals, applying the principles of double CRLREV No.473 of 2023 Page 5 of 10 jeopardy with reference to Article 20(2) of the Constitution of India and Section 300 Cr.P.C., they were set free. The appeals were allowed with the proceedings pending against the appellants being quashed. On a reading of the decision (supra), it is noticed that the Apex Court has taken cognizance of earlier decisions in Vijayalakshmi Vrs. Vasudevan (1994) 4 SCC 656; Thakur Ram Vrs. State of Bihar AIR 1966 SC 911 on Section 300 Cr.P.C. and S.A. Venkataraman Vrs. Union of India AIR 1954 SC 375 besides Maqbool Hussain Vrs. State of Bombay AIR 1953 SC 325 including State (N.C.T. of Delhi) Vrs. Navjot Sandhu (2005) 11 SCC 600 with respect to Article 20(2) of the Constitution of India and concluded the concept of double jeopardy can also be understood in terms of Article 21 of the Constitution of India, as according to which, no person shall be deprived of his life or personal liberty except as per the procedure established by law and with a reference to the celebrated judgment in the case of Maneka Gandhi Vrs. Union of India AIR 1978 SC 597. Having regard to the decision in T.P. Gopalakrishnan (supra) and catena of decisions of the Apex Court, reiterated time and again, the conclusion is that no trial is permissible for the same incident and offences for which a person has been tried earlier. A reference may be had to the following decisions, such as, Sangeeta Ben Mahendrabhai Patel Vrs. State of Gujarat and another 2011 and Thomas Dana Vrs. State of Punjab 1959; Union of India Vrs. Sunil Kumar Sarkar (2001); Satwant Singh Vrs. State of Punjab 1960 on the principle of double jeopardy. For the sake of brevity, the Court refrains itself to burden the judgment with other authorities besides the above. So, therefore, in case, the petitioners, in the case at hand, has suffered trial, the point is, whether, it would be justified to subject them to a trial for the second time.
CRLREV No.473 of 2023 Page 6 of 109. As per the FIR dated 27th April, 2017, the incident took place with the involvement of the petitioners related to each other as father and son with the allegation that both prevented the informant, namely, IIC Joda PS, Keonjhar from discharging public duty with other overt acts being committed. As a result, Joda P.S. Case No.56 was registered which correspondence to G.R. Case No.210 of 2017. Incidentally, at the instance of a Security Guard engaged by a company and on duty near the spot at the relevant point of time, another report was lodged, consequent upon which, Joda P.S. case No.55 dated 27th April, 2017 under Sections 341, 323, 353, 332, 294, 504 and 506 read with 34 IPC was registered which culminated in the order of acquittal, which corresponds to G.R. Case No.209 of 2017. It is further to notice that the informant in G.R. Case No.210 of 2017 was examined as P.W. 19, who while under examination during and in course of trial in G.R. case No.209 of 2017 deposed regarding a plain paper FIR being drawn by him in respect to the same incident leading to the registration of Joda P.S. Case No.56 dated 27th April, 2017 under Sections 341,353 and 504 read with 34 IPC. The other police officials present at the spot, who have also been examined and as according to Mr. Mishra, learned Senior Advocate for the petitioners, when for the self-same occurrence, a report was lodged and trial was held and concluded, learned court below was required to discharge the petitioners, which it utterly failed to do so. The offences are more or less similar as made to appear from the chargesheet i.e. Annexure-1 and the order of acquittal is at Annexure-6. The petitioners have been prosecuted in G.R. Case No.209 of 2017 with the same allegations that both picked up quarrel, assaulted the Security Guard and others and committed mischief even against the IIC Joda PS, Keonjhar. Both the cases CRLREV No.473 of 2023 Page 7 of 10 could have been tried by learned court below analogously, however, the same did not materialize. In G.R. Case No.209 of 2017 with the evidence adduced by the prosecution, learned JMFC, Barbil concluded that the allegations are not proved, hence, could not be substantiated. The facts narrated in the body of the judgment i.e. Annexure-6 relate to the same incident for which report was lodged in connection with Joda P.S. Case No.56 leading to the filing of chargesheet corresponding to G.R. Case No.210 of 2017. As earlier stated, the informant of G.R. Case No.210 of 2017 was examined as a prosecution witness with other officials and it was in respect of the self-same occurrence dated 27th April, 2017. In fact, the petitioners have been tried for additional offences in G.R. Case No.209 of 2017 as the chargesheet in G.R. Case No.210 of 2017 was for offences under Sections 341, 353 and 504 read with 34 IPC only. In any case, the incident is the same and the offences alleged against the petitioners and in G.R. Case No. 209 of 2017, evidence was received by the same Court during trial with the examination of the I.O. of both the cases including the informant, namely, P.W.19. It is, therefore, to be held that the petitioners having been tried once before cannot be subjected to trial again in respect of the same incident and the offences so to say. Regard being had to the principles of double jeopardy discussed earlier, the Court has no hesitation to reach at a definite conclusion that the petitioners, if subjected to trial for the alleged incident dated 27th April, 2017, it would result in persecution and travesty of justice. Hence, a case of double jeopardy is made out vis-à-vis the petitioners.
10. As the learned Court below declined to intervene at the stage of enquiry and rejected the application filed under CRLREV No.473 of 2023 Page 8 of 10 Section 239 Cr.P.C. which is under challenge by way of revision, the Court, though, at the first blush thought it proper to uphold the impugned decision and instead to exercise inherent jurisdiction to deal with the situation, however, after giving anxious consideration to the plea advanced, it has formed an opinion that it ought to have been taken cognizance of. If such a fact is brought to the notice of a Court, the same is to be examined because the further proceeding with enquiry and trial despite earlier prosecution having been concluded would be in gross violation of the statutory and constitutional law, which cannot be avoided with a conclusion that the chargesheet and connected materials do make out a case. In the humble view of the Court, such an approach would be like shutting eyes to the facts glaringly apparent and visible and still to proceed with the enquiry and trial fully knowing that it would result in double jeopardy. In fact, a Court is not helpless, as its decision on any such plea shall be backed by and in confirmity with the procedure and provisions of law in place. The approach of a Court, like in the present case, would be too hyper-technical. Of course, a Court is to look at and fall back upon the materials available, while considering a plea of discharge but to deny the same despite being made aware of the earlier trial and result therein is incomprehensible and devoid of any rationality fully conscious of the interdiction against double prosecution. In fact, learned Court below treated the contention of the petitioner as a defence plea being based on extraneous material but such a view is wholly misconceived. The demand seeking discharge of the petitioners stands over a foundation of double jeopardy, which can never be treated as a defence plea. In the light of the discussions held herein above, the Court is inclined to exercise its jurisdiction to CRLREV No.473 of 2023 Page 9 of 10 do away with the impugned decision, otherwise, it would amount to a prosecution and trial of the petitioners for the same incident and offences once more, which is opposed to the principle of double jeopardy.
11. Hence, it is ordered.
12. In the result, the revision stands allowed. As a necessary corollary, the impugned order under Annexure-5 passed in connection with G.R. Case No.210 of 2017 by learned JMFC, Barbil is hereby set aside with the petitioners being discharged in connection with G.R. Case No.210 of 2017 corresponding to Joda P.S. Case No.56 dated 27th April, 2017 for the reasons stated.
13. In the circumstances, however, there is no order as to costs.
(R.K. Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 30-Oct-2024 18:03:29 CRLREV No.473 of 2023 Page 10 of 10