Karnataka High Court
Sri Shivaprasad S @ Shivu vs State Of Karnataka on 30 March, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH, 2022 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.853 OF 2022
BETWEEN:
SRI SHIVAPRASAD S. @ SHIVU
S/O SHIVAMADAIAH,
AGED ABOUT 32 YEARS,
R/AT NO.386,
NARAYANAPPA LAYOUT,
PILLE KALAMMA TEMPLE ROAD,
THALAGATTAPURA,
KANAKAPURA MAIN ROAD,
BENGALURU - 560 062.
... PETITIONER
(BY SRI VEERANNA G.TIGADI, ADVOCATE (PHYSICAL HEARING))
AND:
STATE OF KARNATAKA
BY J.P.NAGAR POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI SHANKAR H.S., HCGP (PHYSICAL HEARING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE CHARGE SHEET IN
C.C.NO.30720/2014 REGISTERED BY THE J.P. NAGAR POLICE IN
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CR.NO.780/2013 FOR THE ALLEGED OFFENCES P/U/S 465, 471,
419, 420 R/W 34 OF IPC ON THE FILE OF THE XXX A.C.M.M.
COURT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.30720 of 2014 pending before the XXX Additional Chief Metropolitan Magistrate, Bangalore, arising out of Crime No.780 of 2013, registered for offences punishable under Sections 465, 471, 419, 420 read with Section 34 of the IPC.
2. Heard Sri Veeranna G. Tigadi, learned counsel appearing for the petitioner and Sri H.S.Shankar, learned High Court Government Pleader appearing for the respondent.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioner was accused No.1 in Sessions Case No.216 of 2014, registered for offences punishable under Sections 143, 3 144, 147, 148, 150, 120B, 114 & 302 of the IPC read with Section 149 of the IPC. The petitioner is a practicing Advocate.
The allegation against the petitioner is that, during 2007-08, he was pursuing his law study in the University College of Law, Bangalore and during that period, one Sangeetha was also pursuing her studies at B.M.S. College, as a commerce student.
It is alleged that accused No.1 had fallen in love with the lady, but the lady was not interested in accused No.1. On several incidents unfolding accused No.1 is said to have made several proposals of marrying the said lady. Due to caste barriers, the same did not take place.
4. Marriage between the said lady was fixed with one P.G. Deepak who belonged to the same community as that of the lady, to be performed on 28.04.2013. The petitioner is alleged to have made several attempts to convince the lady but in vain and finally, it is alleged to have hatched a conspiracy to eliminate P.G.Deepak. This led to the aforesaid allegation against the petitioner on the score that the petitioner had assaulted 4 P.G.Deepak from backside of the head, which had caused fatal injuries. The learned Sessions Judge by judgment dated 27th May 2020, acquitted the petitioner of the offences punishable as afore-quoted, since the prosecution had failed to prove its case beyond all reasonable doubt. Therefore, the accused became entitled to acquittal on benefit of doubt. This order of acquittal is said to have become final.
5. Based on the same incident, another crime was registered against the petitioner in Crime No.344 of 2013 for offences punishable under Sections 143, 144, 147, 148, 150, 120B, 302 of the IPC read with Section 149 of the IPC, in which, the Police after investigation had filed a charge sheet and the case later becomes C.C.No.30720/2014. The allegation against the petitioner in the said criminal case was that he had purchased a Vodafone sim card in order to communicate with his friend Lokesh in the name of Shivaraj. The allegation was thus cheating, falsification of records and production of false documents for the purpose of cheating. These allegations also 5 arose out of the very same incident which led to registration of Sessions Case No.216 of 2014 against the petitioner along with others. The petitioner having been acquitted of the offences in Sessions Case No.216 of 2014 has now approached this Court in the subject petition contending that continuation of trial in the subject C.C.No.30720 of 2014 is hit by Section 300 of the Cr.P.C. and Article 20(2) of the Constitution of India.
6. The learned counsel appearing for the petitioner would submit that the aforesaid offences in S.C.No.216 of 2014 and in the subject C.C.No.30720 of 2014, arose out of the very same incident and the very same complaint registered on 14-11-2013. In the Sessions case what was added was offence punishable under Section 302 of the IPC and in the subject case what is alleged is falsification of documents and cheating for the purpose of securing a sim card. Therefore, the foundation of both the Sessions case and the present case is one and the same and the petitioner having been acquitted of the offences in 6 S.C.No.216 of 2014, the subject case cannot be continued any further as it would hit by Section 300 of the Cr.P.C.
7. On the other hand, the learned High Court Government Pleader would submit that the allegations though arose out of the same incident but are different and distinct. It is for the petitioner to come out clean in the trial for the alleged offences. The petitioner cannot contend that he is absolved of these offences or it would amount to double jeopardy on the plea that he has been acquitted in the Sessions case. He would seek dismissal of the subject petition.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
9. Before embarking upon consideration of submissions made by the learned counsel appearing for the petitioner, I deem it appropriate to notice Section 300 of the Cr.P.C. Section 300 of the Cr.P.C reads as follows:
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"300. Person once convicted or acquitted not to be tried for same offence.--(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.8
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation.--The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section."
(Emphasis supplied) Section 300 of the Cr.P.C. mandates that once a person is convicted or acquitted not to be tried for the same offence. A person who has been tried by a Court for an offence and is convicted or acquitted of such offence shall, while such conviction or acquittal remains in force would not be liable to be tried again for the same offence or 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. It is therefore necessary to notice 9 Section 221 of the Cr.P.C. Section 221 of the Cr.P.C., reads as follows:
"221. Where it is doubtful what offence has been committed.--(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."
Section 221 of Cr.P.C. mandates that if a single act or series of acts is of such a nature that it is doubtful which of several offences, which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of charges may be tried at once. In the event, the accused is charged with one offence and it appears in evidence that he has committed a different offence for which, he might have been charged, he may be convicted of the offence 10 which he is shown to have committed though he was not charged with it.
10. On a conjoint reading of Section 300 and Section 221 of the Cr.P.C. what would emerge is that, the charges for offences of Sections 465, 471, 419 and 420 IPC arose out of the same incident. The petitioner could have been charged with those offences in the aforesaid Sessions case itself. Though it arose out of the same incident, a separate complaint and a separate criminal case is registered for the aforesaid offences against the petitioner.
11. The trial has concluded with the acquittal of the petitioner in Sessions case No.216 of 2014. Till such conclusion of trial happened, Section 300 of the Cr.P.C. will not spring into action. It is either on conviction or acquittal and in the subsistence of such conviction or acquittal, Section 300 of the Cr.P.C. would become applicable, if an accused is being tried for different offences on the same incident, this is the purport of Section 300 and Section 221 of the Cr.P.C.
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12. The aforesaid is not in dispute, what facts were gathered for registration of an offence against the petitioner punishable under Section 302 of the IPC along with other offences in S.C.No.216 of 2014, were the very same and was arising out of the very same incident that led to filing of Criminal Case No.30720 of 2014, albeit for different offence. The substratum of both the proceedings are the same. If substratum of both the proceedings are same, acquittal in one would enure to the benefit of the accused in the subsequent proceedings; if he is convicted or acquitted in the earlier case and that conviction or acquittal subsists during the period in which the petitioner/accused is sought to be tried in a subsequent criminal case. Splitting the incident into different cases for different offences and the accused being tried is acquitted, is what is hit by Section 300 of the Cr.P.C. The plea of autrefois acquit would arise when a person is tried yet again for the same offence or on the same facts for any other offence in terms of what is mandated under Section 221 of the Cr.P.C. The 12 protection is by usage of words 'nor on the same facts for any other offence' would mean that it would extend to different offences only when they are based on same facts. It is this that would fall within Section 221 of the Cr.P.C. Therefore, the test would become whether the acquittal in the Sessions case would necessarily involve an acquittal in the second case, the answer would be an unequivocal 'yes' for the reason that both the cases have arisen on the same set of facts. If the facts and incidents were totally different Section 300 or Section 221 of the Cr.P.C. would not get attracted. Usage of the word 'distinct' offence in sub-section (2) of Section 300 of the Cr.P.C., would only mean that an offence arising out of different set of facts, which is entirely unconnected with the former charge.
13. The allegation against the petitioner in the criminal case is one of falsification of documents for securing a sim card, by producing documents belonging to one Shivaraj. The sim card was used to communicate with one Lokesh. It is the very same fact that led to murder of one P.G.Deepak, which was the 13 subject matter of Sessions case No.216 of 2014. Therefore, being the same incident narrated in different complaints they are completely intertwined and the petitioner cannot be made to face trial in C.C.No.30720 of 2014 for the offences punishable as afore-quoted as it would hit by Section 300 of the Cr.P.C.
14. The Apex Court in the case of PREM CHAND SINGH v. STATE OF UTTAR PRADESH AND ANOTHER - (2020) 3 SCC 54, considered the very fact whether subsequent proceedings could be continued when the substrum of two proceedings/FIR was common and mere addition of charges under different Sections in the subsequent FIR cannot justify continuance of trial. The facts before the Apex Court were as follows:
"4. The appellant filed an application for discharge referring to his acquittal dated 7-8-1998 under Section 419 or 420 CrPC pleading that he could not be tried for the same offence twice and that the FIR was based on concealment of facts with regard to the earlier acquittal. The Judicial Magistrate Class II, Gonda rejected the discharge application simpliciter on the ground that the order of acquittal dated 7-8-1998 had not been brought on record. Revision against the same was dismissed holding that the grounds urged on behalf of the appellant can more appropriately be urged at the time of framing of the charges.14
5. Mr Pradeep Kant, learned Senior Counsel appearing for the appellant, submitted that the order of acquittal dated 7- 8-1998 and the subsequent institution of Civil Suit No. 353 of 2007 for the cancellation of the general power of attorney executed by the respondent is not in dispute. The subsequent FIR on 9-10-2008 itself refers to the general power of attorney which was the subject-matter of FIR No. 160 of 1989 but conceals the order of acquittal of the appellant. It is submitted that in the facts of the case, the institution of the FIR on 9-10-2008 long years after execution of general power of attorney dated 2-5-1985 is, therefore, a complete abuse of the process of law and the proceedings are fit to be quashed. Referring to Section 300 CrPC it is submitted that the appellant could not have been tried for the same offence twice at the behest of the respondent who is the complainant himself in both the FIRs.
6. Mr Amit Yadav, learned counsel for the respondent complainant, submits that the High Court has declined [Prem Chand Singh v. State of U.P., 2017 SCC OnLine All 1264] interference since the ingredients of the two FIRs were different. While FIR No. 160 of 1989 was under
Section 419 or 420 IPC the second FIR was under Sections 467, 468 and 471 also. Furthermore, the second FIR contains allegations that the appellant put up an imposter in place of the respondent before the registration authorities and collusively executed sale deed in respect of his lands along with Sushil Kumar Singh and Arvind in pursuance of a general power of attorney which the respondent had never executed. The discharge application was, therefore, rightly rejected and interference declined in revision.
Answering the aforesaid facts, the Apex Court holds as follows:
"8. FIR No. 160 of 1989 alleges that the respondent on account of his job invariably stayed outside. The appellant 15 had created a forged general power of attorney from the respondent in his name with regard to his lands bearing Gata No. 77/0.87 decimal and sold it on the basis of the forged general power of attorney which the respondent became aware of on 25-7-1989. The respondent denied having ever executed any general power of attorney in favour of the appellant. The respondent does not dispute that the appellant was acquitted of the charge by judgment dated 7-8-1998. The fact that the judgment may not have been made available is therefore inconsequential.
9. The institution of Civil Suit No. 353 of 2007 by the respondent for cancellation of the general power of attorney, after the acquittal of the appellant, is nothing but an acknowledgment of the genuineness of the general power of attorney executed by the respondent which he now wished to revoke.
10. The respondent then filed an application under Section 156(3) CrPC which was forwarded by the Magistrate to the police leading to registration of FIR dated 9-10-2008. The allegations are similar that the appellant put up an imposter in place of the respondent and along with one Sushil Kumar Singh and Arvind on the basis of a general power of attorney, which the respondent had never executed, sold his lands. The FIR itself recites that earlier also the appellant had sold the lands of the respondent on the basis of same general power of attorney, but conceals the order of acquittal dated 7-8-1998, and also the institution of Civil Suit No. 353 of 2007 for annulment of the same.
11. It is, therefore, apparent that the subject-matter of both the FIRs is the same general power of attorney dated 2-5-1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different 16 ingredients to justify the latter FIR as being based on different materials, allegations and grounds.
12. Section 300 CrPC provides 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."
13. In view of the conclusion that the substratum of the two FIRs are the same and that the appellant has already stood acquitted on 7-8-1998 of the charge with regard to forging any general power of attorney of the respondent, we are of the considered opinion that the subsequent prosecution of the appellant in FIR No. 114 of 2008 dated 9-10-2008 is completely unsustainable. In the result, the FIR dated 9-10-2008, the orders dated 18-12-2015, 31-5- 2016 and the impugned order dated 1-3-2017 [Prem Chand Singh v. State of U.P., 2017 SCC OnLine All 1264] are set aside. The appeal is allowed."
(Emphasis supplied) In the light of the afore-quoted facts, if proceedings are permitted to continue, it would amount to abuse of the process of the law and result in miscarriage of justice. 17
15. Therefore, in the light of the preceding reasons and the law laid down by the Apex Court (supra), I pass the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings in C.C. No.30720 of 2014 pending before the XXX Additional Chief Metropolitan Magistrate, Bangalore, stand quashed qua the petitioner.
I.A.No.1/2022 is disposed as a consequence.
Sd/-
JUDGE nvj CT:MJ