Kerala High Court
Jaimol Jisam vs State Of Kerala on 30 October, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936
Crl.MC.No. 1670 of 2011 ( )
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AGAINST THE ORDER/JUDGMENT IN CC 1654/2008 of JUDICIAL FIRST CLASS
MAGISTRATYE-I, CHERTHALA DATED 30-10-2010
PETITIONER(S):
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JAIMOL JISAM, GALAXY HOUSE,
PANAYAPPALLY, HOUSE NO.XII/1217, KOCHI-2.
BY ADV. SRI.T.RAJESH
RESPONDENT(S):
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STATE OF KERALA, REP.BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R2 IMPLEADED
ADDL. R2 K.BABU, S/O.KESAVAN, GRANT VILLA, PRAYAR P.O,
VADAKKUMURI, VAIKOM IMPLEADED AS ADDL.R2 AS PER ORDER DATED
15.06.2011 IN CRL.M.A.3568/11 IN CRL.M.C.1670/2011.
R,R2 BY ADV. SRI.A.T.ANILKUMAR
R,R2 BY ADV. SMT.V.SHYLAJA
R BY PUBLIC PROSECUTOR SRI REJI JOSEPH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-
04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CR
P.D.RAJAN, J.
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Crl.M.C. NO.1670 of 2011
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Dated this the 1st day of April, 2014
ORDER
This is a petition filed u/s.482 Cr.P.C. to quash Annexure IV complaint and Annexure V FIR in Crime No.177/2011 of Vaikom Police Station pending before the Judicial First Class Magistrate Court, Vaikkom by invoking inherent jurisdiction. Petitioner is the accused in the above crime which is registered for offence punishable under Section 420 IPC, which was filed by 2nd respondent in the Judicial First Class Magistrate Court, Vaikkom. Petitioner contended that by using the same cheque an earlier case was filed by the complainant u/s. 138 of the Negotiable Instruments Act, before Judicial First Class Magistrate, Cherthala in which he was acquitted. After the acquittal, 2nd respondent preferred the present complaint for offence punishable under Section 420 2 IPC before the Judicial First Class Magistrate Court, Vaikkom and the complaint was forwarded to Vaikkom Police Station for investigation u/s. 156 (3) Cr.P.C. Therefore a second case by using the same cheque for offence u/s.420 IPC is a mere abuse of the process of court which is barred u/s.300 Code of Criminal Procedure.
2. The allegation of 2nd respondent in Annexure IV was that petitioner borrowed a sum of Rs.7,00,000/- from the 2nd respondent on 17.9.2008 and in discharge of that debt, he issued a cheque drawn on Lord Krishna Bank, Mattanchery Branch. When the cheque was presented for encashment, it was dishonoured for insufficiency of funds. A statutory notice was issued and after receipt of that notice there was no repayment. Hence petitioner cheated the 2nd respondent and committed the offence. In the circumstance, he filed Annexure IV complaint before the Judicial First Class Magistrate Court, Vaikkom. Hence, petitioner approached this court with this petition. 3
3. Before adverting to the facts in this case I may refer S.300 of the Code of Criminal Procedure Code which reads as follows:
(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 or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged 4 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.
(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.
4. In a criminal trial the pleas of autrifois acquit and Autrefois convict are taken as a bar to any criminal trial for the reason that the accused had been earlier tried for the same alleged offence and he was either acquitted or convicted. An analysis of the Section 300(1) will bring out a person, who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, 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 5 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. Therefore, in order to apply the principle of autrefois acquit it is necessary that the court which acquitted the accused in the first trial had power and jurisdiction to try the case. If the court passed the order of acquittal has no jurisdiction to take cognizance or try the case, that order of acquittal is a nullity and no bar for subsequent trial.
5. Autrefois acquit and autrefois convict is a bar to criminal trial on the ground that the accused person once been charged and tried for the same alleged offence and while such acquittal or conviction is in force cannot be again tried for the same offence. The law explained under Article 20(2) of the Constitution of India admit it as a fundamental right which ensures the principle of "Autrefois convict" or "double jeopardy", i.e no person shall be prosecuted and punished for the same offence more than once or a person must not be put in peril twice for the same 6 offence. But the law with regard to previous acquittal is not explained in art.20(2) of the Constitution of India. But under S.300 of the Code it fully consolidate the principle of previous conviction or acquittal and describe in detail the expression same offence.
6. The Constitution Bench of the Apex court in Maqbool Hussain V State of Bombay (AIR 1953 SC 325) explained the plea of Autrefois convict or Autrefois acquit and held in paras 8,9,10,11 and 12 as follows:
(8).This is the principle on which the party pursued has available to him the plea of "autrefois convict" or "autrefois acquit".
"The plea of 'autrefois convict' or 'autrefois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is araigned........The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. 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, not that the facts relied on by the Crown 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".
(9) This principle found recognition in Section 26 of the General Clauses Act, 1897- 7
"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence", and also in S.403(1), Criminal P.C., 1898- "A person who has 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 S.236 or for which he might have been convicted under S.237".
(10) The Fifth Amendment of the American Constitution enunicated this principle in the manner following-
"....... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself...............".
Willis in his Constitutional Law, at page 528 observes that the phrase 'jeopardy of life or limb' indicates that the immunity is restricted to crimes of the highest grade, and this is the way Blackstone states the rule. Yet, by a gradual process of liberal construction the Courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanours"..............."Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a Court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impaneled and sworn. It is not necessary to have a verdict. The protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned".
(11) These were the materials which formed the background of the guarantee of fundamental right given in Art.20(2). It incorporated within its scope the 8 plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.
(12) The words "before a Court of law or judicial tribunal" are not be found in Art.20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of Art.20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Art.20 and the words used therein:-
"convicted", "commission of the act charged as an offence","be subjected to a penalty", "commission of the offence", "prosecuted and punished", "accused of any offence", would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
7. Apex court in Sangeethaben Mahendrabhai Patel v. State of Gujarat and Another (AIR 2012 SC 2844) 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 9 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.
8. Learned Counsel for the petitioner contended that for the same set of facts the 2nd respondent filed a complaint in the Judicial First Class Magistrate -I, Cherthala and he withdrew that complaint with the permission of the court. In the circumstance, learned Magistrate acquitted the petitioner under Section 257 Cr.P.C and 2nd respondent cannot again approach the court with a second complaint u/s.420 IPC which will be a bar u/s.300(1) of Cr.P.C. He relied on the decision of the Apex Court reported in Kolla veera Raghav Rao v. Gorantla Venkateswara Rao and another 2011(1) KLD 271 (SC).
9. The learned counsel appearing for the 2nd respondent contended that Annexure-A1 constitutes a different offence on a different set of allegation. Therefore, bar u/s.300(1) is not attracted in this case. Moreover, acquittal u/s.257 Cr.P.C. will not come within the purview of 10 Section 300(1) Cr.P.C and any interference at this stage by invoking the inherent jurisdiction will cause injustice to the defacto complainant.
10. Now the question for consideration is whether a person once been tried by a court of competent jurisdiction for an offence and acquitted thereunder while such acquittal remains in force, he is liable to be tried for the 'same offence' or on the same set of facts for any other offence ? The implication of the expression 'same offence' mentioned u/s.300 of Cr.P.C has been explained by the Madras High Court in Natarajan v. The State [1991 Crl.LJ 2329] in which it is held as follows:
The second limb of the sub-section deals with the same facts for any other offence for which a different charge from the one made against him might have been made under sub-sec(1) of S.221 or for which he might have been convicted under sub-sec.(2) thereof. The principle of this limb of the section is that whether an accused can be tried at one trial for several offences and if he has not been so tried for all the offence, but only for a few, whether he should not be put again in jeopardy for the offences for which he might have been tried at that time; but had not been 11 tried. The expression "might have been made" means "might have been lawfully made". In the case on hand, as already stated, the facts in the earlier prosecution are exactly the same and identical to the facts in the present prosecution. The sordid fact is that the petitioner had been tried in the earlier case for the offence under Ss.457 and 380 IPC and he had been acquitted thereof. The verdict of acquittal so rendered was not at all further agitated and still remains in force. In such state of affairs, on the same set of facts, he cannot be charged for the offences u/s.404 and 408 IPC in as much as the second limb of the sub-sec.(11) of S.300, Cri.P.C, stares at the face of the investigating agency. In this view of the matter, the petition deserves to be allowed.
11. The Illustration (a) mentioned u/s.300 Cr.P.C. explains the position more clear which reads as follows:
"(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or upon the same facts, with theft simply, or with criminal breach of trust."
Explanation portion of Section 300 says that, the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section, which says that the word 'acquittal' has been explained in a negative sense. Under the Code, the Magistrate and other subordinate Courts are given power to acquit the accused. In Section 12 256 Cr.P.C., there is a provision for acquittal of the accused on the ground of non-appearance or death of complainant. Under Section 257, if a complainant, at any time before a final order is passed in any case, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused against whom the complaint is so withdrawn. Here, the 2nd respondent preferred a complaint u/s.138 of the Negotiable Instruments Act in the Judicial First Class Magistrate Court, Cherthala and subsequently by virtue of Annexure-III, he withdrew that complaint. In Annexure-III, the learned Magistrate recorded his satisfaction and the 2nd respondent was permitted to withdraw the complaint. Subsequently the accused was acquitted as per Section 257 Cr.P.C. Now the 2nd respondent preferred Annexure-IV complaint before the Judicial First Class Magistrate Court, Vaikkom, which was forwarded to Vaikkom Police for investigation u/s.156(3) 13 Cr.P.C. and FIR was registered by the Police officer. Apex Court in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao and another [2011(1) KLD 271 (SC)] held that even though offences are different, a second conviction is not possible on the same set of facts.
12. This view was taken earlier by this Court in Executive Officer Karukutty Panchayat v. Devassy Joseph [1972 Crl.L.J. 801] in which it is held as follows:
"5. It is clear that in the former case the respondent not only appeared before the Magistrate, but also the Magistrate had commenced the trial. It was then that the withdrawal of the prosecution was effected and the Magistrate by virtue of Section 248 Cr.P.C. had also passed an order of acquittal in favour of the accused. The relevant provision of Section 248 Cr.P.C. reads as follows:
'If a complainant at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint, the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused.
6. It is seen from the above section that it speaks of a "complaint" and speaks of an "accused" and also speaks of an "acquittal". It is clear that there has been a complaint and the respondent herein was involved as an accused in that case. There was also an order of acquittal. In such circumstances, it is clear from the terms in which Section 248 is worded that the withdrawal of the complaint does not by itself operate as an acquittal but an order of acquittal by the Magistrate is further necessary. In this case such an order of acquittal has been passed and so the order was in compliance with the provisions contained in Section 248 Cr.P.C. Reading the Section 248 in conjunction with Section 403 Cr.P.C. , it is clear that there had been an acquittal of the accused in the prior case. If there was an acquittal after trial, it could not be contended that there was no bar for 14 prosecution of the respondent over again in respect of the same charge. It is relevant to point out the Explanation to Section 403 Cr.P.C. It reads s follows:
'The dismissal of a complaint, the stopping of proceeding under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section.' Section 248 Cr.P.C. does not come within the ambit of this Explanation. It appears to me that if the intention of the Legislature was to exclude acquittals under Sections 247 and 248 for the purview of Section 403 Cr.P.C. that could have been specifically provided as stopping of proceeding under Section 249 or the discharge of the accused or any entry made upon a charge under Section 273 as has been done in that Explanation. On this aspect, the observation in Haveli Ram v. Delhi Municipality AIR 1966 Punj 82 at p.85 may be seen.
'An order of acquittal either under Section 247 or under Section 248, until set aside, holds good, and if as stated the Legislature intended that it should not have an effect like any other acquittal under the Code, i could well have explained this way in the explanation as has been pointed out.'
7. In the circumstances of the case, therefore, it has to be said that the second prosecution launched by the revision petitioner against the respondent is not sustainable and it is barred by Section 403 Cr.P.C. The order of the court below is, therefore, correct, and no interference is called for."
13. Apex Court in State of Bombay v. S.L. Apte and another [AIR 1961 SC 578] held that 'to operate as a bar the second prosecution and the consequential punishment thereunder must be for the 'same offence'. The crucial requirement for attracting a basic rule is that the offences are the same, i.e. they should be identical. But in Kolla 15 Veer Raghav Rao V Gorantla Venkateswara Rao and Another (2011) 2 Supreme Court Cases 703, it was held as follows:
5. Thus, it can be seen that Section 300(1) Cr.P.C is wider than Article 20(2) of the Constitution.
While Article 20(2) of the Constitution only states that "no person shall be prosecuted and punished for the same offence more than once". Section 300(1) Cr.P.C states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.
6. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) Cr.P.C applies. Consequently, the prosecution under Section 420 IPC was barred by Section 300(1) Cr.P.C.
14. The inherent powers of the High Court can be invoked to make such orders as may be necessary to give effect to any order under the code of Criminal Procedure or to prevent abuse of the process of any court or to secure the ends of justice. While exercising such jurisdiction this court would not ordinarily conduct an enquiry whether the evidence furnished is reliable for a conviction or not. Therefore, this jurisdiction has to be exercised carefully and with caution. Apex Court in R.P. Kapur v. State of Punjab, 16 [AIR 1960 SC 866] and in State of Haryana v. Bhajanlal (1992 SCC (Crl.) 426) elucidated the circumstances in which the High Court can invoke its inherent powers, to quash criminal proceedings of a subordinate criminal court. In Bhajanlal's case (supra). The Supreme Court observed thus:
"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 proceeding against the accused, the proceedings are liable to be quashed".
It is therefore, necessary to analyse and compare not only the allegations in the two complaints, but also the ingredients of the two offences and see whether the facts are identical. Analysing the two cases I feel that the facts are the same even though the offences pleaded are different. I am of the view that the prosecution under S.420 IPC is barred under Section 300(1) of Code of Criminal Procedure. The second complaint was filed on the basis of the same set of facts alleged in the earlier complaint. Even though the 2nd respondent contended that the facts are 17 different, I cannot agree with those contentions. Hence, Annexure-IV and V pending before Judicial First Class Magistrate Court, Vaikkom has to be quashed by invoking Section 482 of the code of Criminal Procedure and I do so.
Crl.M.C. is allowed as above.
P.D. RAJAN, JUDGE.
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