Kerala High Court
Narayana Pillai vs State Of Kerala on 3 February, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935
Crl.MC.No. 3826 of 2012
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CRL.APPEAL NO.225/2010 OF ADDL.SESSIONS COURT, KOLLAM
.....
CC NO.1168/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
SASTHAMCOTTA
...
CRIME NO.197/CR/2001 OF CRIME BRANCH CBCID UNIT, KOLLAM.
....
PETITIONER(S)/ACCUSED NO.5:
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NARAYANA PILLAI, AGED 52 YEARS,
S/O. RAMAKRISHNA PILLAI,
PULLELI VEETIL, PADINJARENADA MURI,
MAVELIKKARA VILLAGE, MAVELIKKARA TALUK.
BY ADVS.SRI.B.RAMAN PILLAI
SRI.R.ANIL
SRI.M.SUNILKUMAR
SRI.ANIL K.MOHAMMED
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
RESPONDENT(S)/COMPLAINANT:
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1. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
*ADDL.R2 IMPLEADED:
R2. ANNIE RAJAN,
W/O.RAJAN,
KUMMEL HOUSE,
MANJAKKALA,ADOOR,
PATHANAMTHITTA.
(*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 19/12/2012 IN
CRL.M.A.NKO.8248/2012)
R1 BY PUBLIC PROSECUTOR SMT. M.T. SHEEBA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 03-02-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
Crl.M.C.No.3826/2012
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX.A: COPY OF THE CHARGE SHEET FILED BEFORE THE HON'BLE
CHIEF JUDICIAL MAGISTRATE, KOLLAM DTD. 14/07/2003.
ANNEX.B: COPY OF THE JUDGMENT IN CC NO.201/2006 OF THE HON'BLE
CHIEF JUDICIAL MAGISTRATE, KOLLAM DTD. 9/06/2010.
ANNEX.C: COPY OF THE FIR IN CRIME NO.761 OF 2000 OF ADOOR POLICE
STATION DTD. 24/12/2000.
ANNEX.D: COPY OF THE REPORT DTD. 12/08/2002 OF THE DEPUTY
SUPERINTENDENT OF POLICE CBCID POLICE, KOLLAM.
ANNEX.E: COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT
OF POLICE, CBCID, DTD. 23/07/2003.
ANNEX.F: COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT
OF POLICE, CBCID, KOLLAM DTD. 3/11/2003.
ANNEX.F1: COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT
OF POLICE, CBCID, KOLLAM DTD. 3/11/2003.
ANNEX.G: COPY OF THE FINAL REPORT IN CARIME NO.197/CR/2001 OF
CBCID UNIT, KOLLAM DTD. 19/05/2004.
ANNEX.H: COPY OF THE COURT CHARGE IN CC NO.168 OF 2004 ON THE
FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,
SASTHAMKOTTA DTD. 6/09/2007.
RESPONDENT'S ANNEXURES: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
"C.R."
P.D. RAJAN, J.
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Crl.M.C. No.3826 of 2012
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Dated this the 3rd day of February, 2014
ORDER
This petition is preferred by the 5th accused in Crime 761/2000 of Adoor Police Station, which was registered for offences punishable U/Ss.323, 341 420 r/w 34 IPC and re- registered by CBCID, Kollam as Crime 197/CR/2001 Crime Branch CID Unit, Kollam, praying that Annexure G final report and Annexure-H charge framed in C.C.No.1168/2004 by the Judicial First Class Magistrate Court, Sasthamkotta under S 120
(b), 119, 420 r/w 34 may be quashed by invoking the inherent jurisdiction u/s.482 Cr.P.C. The petitioner contended that if the trial is continued in this case, it amounts to double jeopardy which is an abuse of process of Court.
2. The allegation against the accused in the above case is that between September 1999 and 11.8.2000, A1 to A4 obtained Rs.22 lakhs from 2nd respondent making her believe that the Crl.M.C.No.3826/12 2 2nd accused is having gold treasure including a gold yam which could be sold to her for a lesser price and collected Rs.8,50,000 and Rs.2,75,000/-, from Cws 2 and 3, total Rs.33,00,000/- and accused neither give the gold treasure as promised nor returned the money and thereby committed the offence. Petitioner being a Police officer did not prevent the commission of offence by accused 2 to 4, in spite of the information. For this second respondent filed a complaint before the Judicial First Class Magistrate Court, Adoor, which was sent over to Adoor Police for investigation u/s.156(3) Cr.P.C., accordingly Crime 761/2000 of Adoor Police Station was registered for offence u/s.420,323, 341 r/w 34 IPC. Subsequently, the investigation was entrusted to Crime Branch CID Unit, Kollam, they re-registered it as Crime 197/CR/2001 CBCID, Kollam and after completing investigation, they filed Annexure-G final report.
3. The learned counsel for the petitioner contended that the case pending before JFMC, Sasthamcotta is barred by S.300 of Cr.P.C and under Sect.26 of the General Clauses Act 1897 (herein after referred to as 'Act' for short) as the Crl.M.C.No.3826/12 3 petitioner was tried in crime 261/CR/2000 of CBCID, Kollam (Crime 484/2000 of Adoor Police Station) relates to C.C.No.201/2006 for offence punishable U/Ss.143, 149, 119, 120B and 420 IPC r/w 34 IPC for the same act and after trial, he was acquitted for offences U/Ss.119, 143 & 149, but convicted U/Ss.420 & 120B by the CJM Court, Kollam and on appeal he was acquitted by the Sessions Court. If he is tried in the second case, it amounts to double jeopardy, which is against the mandatory provisions contained under Section 300 of Cr.P.C.
4. The learned Public Prosecutor contended that earlier case, C.C.No.201/2006 was tried and disposed of by CJM, Kollam, in which the defacto complainant was one Akbar. In C.C.No.1168/2004 of JFCM Sasthamkotta, one Annie Rajan is the defacto complainant and both cases were charge sheeted for different offences. The petitioner was a responsible officer to take action against the accused, knowing it to be likely that they are committing the above offence, he did not take action and helped them. Therefore, these two incidents are distinct offences and committed at two Crl.M.C.No.3826/12 4 times. The application to club these two cases was dismissed by the Hon'ble High Court in Crl.M.C.2372/2004. Therefore, Section 300 of Cr.P.C is not applicable in this case and both cases are to be tried separately and any interference at this stage will affect the credibility of the prosecution case.
4. The Apex Court in Sangeetaben Mahendrabhai patel v. State of Gujarat and another [(2012) 7 SCC 621] held as follows:
"The fundamental right which is guaranteed under Article 20(2) enunciates the principle of 'autrefois convict' or 'double jeopardy' i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.
13. In Maqbool Hussain v. State of Bombay, [AIR 1953 SC 325: 1953 Crl. LJ 1432] the Constitution Bench of this Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the Customs Authorities and the gold seized from his possession was confiscated. Later on, a prosecution was Crl.M.C.No.3826/12 5 launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947 (hereinafter called "the FERA") read with the relevant notification. In the background of these facts, the plea of 'autrefois acquit' was raised seeking protection under Article 20(2) of the Constitution of India, 1950 (hereinafter called "the Constitution").
14. This Court in Maqbool Hussain held that the fundamental right which is guaranteed under Article 20(2) enunciates the principle of "autrefois convict" or "double Jeopardy" i.e,, a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim nemo debet bis pnire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.
15. The Constitution Bench of this Court in S.A. Venkataraman v. Union of India [AIR 1954 SC 375] explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20(2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted" and "punished" are to be Crl.M.C.No.3826/12 6 taken not distributively so as to mean prosecuted or punished. Both the factors must coexist in order that the operation of the clause may be attracted.
17. In Leo Roy Frey v. Supt. District Jail [AIR 1958 SC 119] proceedings were taken against certain persons in the first instance before the Customs Authorities under Section 167(8) of the Sea Customs Act and heavy personal penalties were imposed on them. Thereafter, they were charged for an offence under Section 120B IPC. This Court held that an offence under Section 120B IPC is not the same offence as that under the Sea Customs Act: (AIR p.121 para 4).
"4. ....... The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."
18. In State of Bombay v. S.L. Apte [AIR 1961 SC 578] the Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2) of the Constitution, held:
(AIR pp.581 & 583, paras 13 & 16) "13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for 'the same offence.' The crucial requirement therefore for attracting the article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, Crl.M.C.No.3826/12 7 necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out........
16. The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to 'the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence.' If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked."
19. In Roshan Lal v. State of Punjab [AIR 1965 SC 1413] the accused had caused disappearance of the evidence of two offences under Sections 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences under Section 201 IPC. It was held that neither Section 71 IPC nor Section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences under Section 201 IPC, t hough it would be appropriate not to pass two separate sentences. A similar view has been reiterated by this Court in Kharkan v. State of U.P.[AIR 1965 SC 83].
5. The main challenge in this petition is with regard to the application of doctrine of double jeopardy. This maxim guarantees the basic pleas of "autrefois acquit and autrefois Crl.M.C.No.3826/12 8 convict.", which is guaranteed U/s.300 of the Code of Criminal Procedure. Section 300(1) reads as follows:
"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."
An analysis of Section 300 (1) will bring out that '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 to be tried again for the same offence. The above section fully combines the principle and explains in detail the impacts of the expression "same offence". Six illustrations accompany this section explaining in concrete terms the different situations which the courts may have to deal with. In the explanation portion "acquittal" has been explained in negative sense Crl.M.C.No.3826/12 9 by saying that the dismissal of a complaint, or the discharge of an accused is not "acquittal" because both are not considered as the final decisions regarding the innocence of the accused person. The word "tried" in Section 300(1) does not necessarily mean tried on the merits. Compounding of an offence under Section 320, or a withdrawal from the prosecution by the Public Prosecutor under Section 321, would result in an acquittal of the accused even though the accused is not tried on merits. Such an acquittal would bar the trial of the accused on the same facts on a subsequent complaint.
6. The plea of autrefois acquit and autrefois convict are taken as a bar to criminal trial on the ground that the accused person had been once already charged and tried for the same alleged offence and was either acquitted or convicted. These rules or pleas are based on the principle that "a man may not be put twice in jeopardy for the same offence." Article 20(2) of the Constitution recognises the Crl.M.C.No.3826/12 10 principle as a fundamental right. It says, "no person shall be prosecuted and punished for the same offence more than once." The revelation of this direction is found in Section 26 of the General Clauses Act, 1897 and in S.71 of IPC as follows:
"26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes and 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."
Section 71 IPC reads as follows:
"71. Limit of punishment of offence made up of several offences- Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of is offences, unless it be so expressly provided."
7. Therefore a second prosecution after a full fledged first trial for the same offence is barred under Art 20(2) of the Constitution. The fundamental right guaranteed under Art.20(2) propound the principle of Crl.M.C.No.3826/12 11 'Autrefois convict' or 'double jeopardy' ie no person shall be punished for the same offence more than once. This doctrine is based on the ancient maxim Nemo debet bis puniri pro uno delicto, that is, no one should be punished twice for one fault. The fifth amendment of the American Constitution provides inter alia "nor shall any person be subjected for the same offence to be put twice in jeopardy of life and limb." But the principle provided in another maxim Nemo debet bit vexari pro eaden causa that is no person should be vexed twice for the same offence or same cause of action. The plea of Autrifois convict or Autrefois acquit asserts that the previous conviction or acquittal of a person on a charge is a bar for a second trial for the same offence. Therefore, no person shall be prosecuted or punished for the same offence more than once.
8. It is clear from the facts of both cases that Crime No.484/2000 of Adoor Police Station was registered on Crl.M.C.No.3826/12 12 11.8.2000 under Section 420 r/w 34 IPC against six persons on a complaint filed by Akbar. Subsequently, the investigation was entrusted to CBCID, Kollam and reregistered it as Crime No.261/CR/2000 of CBCID, Kollam. The 3rd accused Annie Rajan became an approver on 19.6.2000. After this on 18.9.2001, the petitioner was arrayed as Accused No.11 for offence punishable under Section 119 of Cr.P.C. After investigation, CBCID, Kollam filed final report on 14.11.2002 before the Judicial First Class Magistrate, Adoor, which was numbered as C.C.No.785/2002. In the meantime, the case was made over to Chief Judicial Magistrate, Pathanamthitta and the case was numbered as C.C.No.473/2002. Again 4th accused was included as approver and A3 and A4 in the above case were deleted and they were declared as accomplice in the above case. The CJM, Pathanamthitta subsequently made over the case to JFMC Thiruvalla and numbered as C.C.No..188/1996. From there, the case was transferred to CJM, Kollam as per order dated 1.8.2006, in Crl.M.C.No.573/2008 of the Hon'ble High Court, which was renumbered as C.C.No.201/2006 of CJM, Kollam. Crl.M.C.No.3826/12 13
9. In C.C.No.1168/04 of JFCM Sasthamkotta, Smt. Annie Rajan filed a complaint before JFCM, Adoor on 24.12.2000 against 8 persons, which was forwarded to Adoor Police for investigation and Adoor Police registered Crime No.761/2000 under Section 323,341, 420 r/w 34 IPC. This case was also transferred to CBCID, Kollam, which was renumbered as Crime No.197/CR/2001. During investigation, offence under Section 323, 341 were deleted and Section 120B included by virtue of Annexure-E report. After investigation, the petitioner was arrayed as A5 and final report was filed before JFCM, Adoor, which was numbered as C.C.No.514/20024. C.M.P.No.5001/2004 was filed for joint trial and for clubbing the charges in both the cases, which was rejected by CJM, Pathanamthitta. Against that order, Crl.M.C.No.2372/2004 was preferred before this Court and that request was rejected by this Court. Subsequently, by virtue of order in Crl.M.C.No.78/2004 the case C.C.No.514/2004 pending before JFCM, Adoor was transferred to JFCM, Sasthamkotta. The facts and allegations in both cases show that there are two different Crl.M.C.No.3826/12 14 incidents in two cases. The allegation in the second case was that the petitioner had financial transaction with A2 in the second crime and he participated in the criminal conspiracy and thus committed the offence. There is no allegation in the previous case that he received any amount from anybody.
8. Now the short question is whether the two sets of acts stated by the petitioner is different or the same. In the first case, he was tried and convicted by the trial court but later acquitted by the appellate court. In the second case, which is pending before JFCM, Sasthamcotta, the allegation is that the petitioner had financial transaction with the 2nd accused, even after knowledge about the commission of offence, he did not take any action against it but in the former case there is no such allegations. Analysing the facts in two cases, it is clear that Section 300 of Cr.P.C. is attracted only when one person 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 Crl.M.C.No.3826/12 15 the same offence, nor on the same facts for any other offence for which a different charge from the one made under sub- Section (1) of Section 221 or for which he might have been convicted under sub-section (2) thereof. If such a trial was conducted, it will come within Section 300 of Cr.P.C. There is no difficulty for trying the same accused for the offence for which a different charge from the one made against him. The principle discussed in Vijayalakshmi v. Vasudevan [1994(4) SCC 656] and State of Rajasthan v. Hat Singh and others [2003 (2) SCC 152] are relevant. The crucial requirement for attracting the basic rule is that the offences are the same and they should be identical. Therefore, it is necessary to dissect and compare not only the averments in the two complaints but also the ingredients of the two offences and see whether their identity is made out. Therefore, analysing the facts in this case, it is clear that the facts alleged are different and distinct.
9. The inherent power under Section 482 Cr.P.C. cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the Crl.M.C.No.3826/12 16 matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned therein. The inherent powers of the High Court contemplated u/s 482 Cr.P.C. has to be exercised only for those grounds mentioned in the Section, which cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Inherent jurisdiction can be invoked to make such orders necessary to "give effect to any order" under the code or to prevent "abuse of the process" of any court or to secure "the ends of justice". The Apex Court in the State of Haryana v. Bhajanlal, [1992 SCC (Crl) 426] pointed out that: "where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceed against the accused, the proceedings are liable to be quashed". Apex Court in Talab Haji Hussain v. Madhukar Purushotham Mondker (AIR 1958 SC 376) held that the inherent power contemplated under Section 482 Cr.P.Chas to be exercised sparingly, carefully and with caution and only where Crl.M.C.No.3826/12 17 such exercise is justified by the test specifically laid down in the section itself. Therefore, this is not a fit case for invoking inherent powers under Section 482 Cr.P.C.
Hence, this Crl.M.C. is dismissed. The petitioner is at liberty to take all defence in the trial court, untrammelled by any observations made in this order.
P.D. RAJAN, JUDGE.
acd Crl.M.C.No.3826/12 18