Himachal Pradesh High Court
District Una vs State Of Gujarat And Another on 28 October, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 28th DAY OF OCTOBER, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
CRIMINAL MISC. PETITION (MAIN) U/S 482 CR.P.C. No. 269 of 2022
Between:-
SH. MAN MOHAN SHARMA, S/O
SH. SAT PAL SHARMA, AGED
ABOUT 62 YEARS, NEAR PRIMARY
SCHOOL, FIRST FLOOR, VILLAGE
BHADOLIAN KHURD, TEHSIL &
DISTRICT UNA, H.P., R/O OPPOSITE
NANDA HOSPITAL, HAMIRPUR
ROAD, UNA, H.P.
...PETITIONER/ACCUSED
(BY MS. LEENA GULERIA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
THROUGH DRUGS INSPECTOR H.Q.
AT C.M.O. OFFICE UNA, H.P.-
174303
...RESPONDENT/COMPLAINANT
(SH. ASHOK SHARMA, A.G. WITH
SH. SHIV PAL MANHANS, ADDL.
A.G., SH. BHUPINDER THAKUR, DY.
A.G. AND SH. RAJAT CHAUHAN,
LAW OFFICER)
This petition coming on for orders this day, the Court passed the
following:-
ORDER
This is the second petition at the instance of the petitioner seeking quashing of charges framed against him on 05.01.2021 in a complaint under Sections 18(C) and 18-A of Drugs ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 2 and Cosmetic Act, by the learned Additional Sessions Judge (I) Una, H.P. .
2. In the earlier petition filed by the petitioner being Cr.MMO No. 497 of 2018, he had sought quashing of criminal complaint only on the ground that the complaint itself emanates out of FIR No. 249, dated 10.08.2013, that was registered against him under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act (for short the NDPS Act), in which the petitioner was ultimately acquitted by the learned Division Bench of this Court and the said acquittal stands affirmed by the Hon'ble Supreme Court with the dismissal of the SLP vide judgment dated 21.12.2015.
3. It needs to be observed that the earlier petition was dismissed by according the following reasons:-
3. What appears from the record is that on the basis of the disclosure made by the petitioner in FIR No. 249 of 2013, the Drug Inspector alongwith SHO, P.S. Una and Health Staff visited the rented premises hired by the petitioner and recovered huge quantity of allopathic drugs, which was stored there without any valid drug licence and on the basis of the said recovery, the aforesaid complaint came to be filed.
4. Now, adverting to the FIR No. 249 of 2013, the facts therein were that the police team headed by SI Krishan Lal Berri was present at Una-Mehatpur Road near Railway Bridge, Shani Mandi, where they laid nakka and at about 10:30 a.m. one motorcycle, black in colour, bearing registration No. 20D-8788 came from Mehatpur side having bags on both handles of the motorcycle was stopped for checking. The motorcyle was being driven by ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 3 the petitioner Man Mohan Sharma and on checking the bag was found to be containing drugs/injections viz. 18 .
bottles of Rexcof syrup, 9 Corex syrup, 20 tablets of Nitrazepam, 290 tablets of Alzolom, 780 tablets of Spas Parvon, 1560 tablets Spasmo Proxyvon Plus, 120 tablets of Spasmo Proxyvon, 120 tablets of Proxyvon, 190 tablets of Pantose and 360 injection, one strip each of Parvon Spas, Proxyvon, Spasmo Proxyvon Plus capsules and 10 injection Avil, 2 bottles of Rexcof syrup, one bottle corex and 10 tablets of Alprazolam.
5. Thus, it is evidently clear that the prosecution launched in both these cases emanates not only out of two separate and distinct incidents but also arise under different Act i.e. ND & PS Act and Drugs and Cosmetics Act.
6. It needs to be mentioned that the object of the ND & PS Act is to prohibit use and/or import, export or dealing with such prohibited substances and, therefore, the legislature has specifically provided in Section 8 carving out the exception that in some cases, some substance could be utilized for medicinal purposes, then only to that extent, it would be permissible depending upon the compliance with safeguard. On the other hand, the object of the Drugs and Cosmetics Act is totally different, which provided for regulating the manufacturer and use of the drugs and cosmetics with regard to use of substance for the purpose of manufacture of the said drugs and safeguard which has to be adhered to.
7. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings which are relevant for the present purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 4 taken at their face value and accepted in their entirety, do not prima facie constitute any offence or .
make out th case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as and when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 5 civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different .
from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings.
8. The case of the petitioner is not covered under any of the aforesaid principles, therefore, the mere fact that the petitioner has been acquitted of the offence under the ND & PS Act cannot be a ground to seek quashing of the criminal complaint which, as mentioned above, emanates from an entirely different incident under a different Act.
4. This petition can be dismissed solely on the ground that the instant petition is not maintainable after the dismissal of the Cr.MMO No. 497 of 2018 (supra) for the reasons already recorded therein.
5. In addition to that the petitioner has no occasion to complain as it is not a case of double jeopardy as portrayed by the petitioner, as the acquittal of the petitioner was under
Sections 21 and 22 of the NDPS Act and not under Sections 18(C) and 18-A of the Drugs and Cosmetics Act.
6. The ingredients of offence for which the petitioner was earlier charged were entirely different and the second trial envisages different fact situation and the facts constituting offence under the Drugs and Cosmetic Act in the second trial is ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 6 of a different nature. Also, the second trial has been initiated by filing a complaint by the Drugs Inspector, as the prosecution .
alleged. The ingredients of the offence in the previous and second trial are different, accordingly the second trial cannot be held to be barred under Section 403 Cr.P.C. of 1898 or Article 20 of the Constitution of India and for that matter even Section 26 of General Clauses Act, 1897 and Section 71 of the IPC as is otherwise contended by the learned counsel for the petitioner.
7. To attract Article 20(2) i.e. Doctrine of Autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of offence in the earlier case as well as in the latter case must be the same and not different.
Both Section 300 Cr.P.C. and Section 26 of General Clauses Act employ the expression "same offence". For attracting Article 20(2) there must be identity of ingredients as distinguished from identity of allegations.
8. In taking this view, I am duly fortified and supported by the judgment of the Hon'ble Supreme Court in Sangeetaben Mahendrabhai Patel vs. State of Gujarat and another (2012) 7 SCC 621. It is apt to reproduce relevant observations as contained in paras 9 to 33 which read as under:-
9. The sole issue raised in this appeal is regarding the scope and application of doctrine of double jeopardy. The rule against double jeopardy provides foundation for the ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 7 pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained .
in Section 300 Cr.P.C; Section 26 of the General Clauses Act;
and Section 71 I.P.C.
10. Section 300(1) Cr.P.C. reads:
"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."
11. Section 26 of the General Clauses Act, 1897 reads:
"Provision as to offences punishable under two or more enactments. - 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."
12. Section 71 of I.P.C. reads:
1 "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 his offences, unless it be so expressly provided."::: Downloaded on - 29/10/2022 20:32:27 :::CIS 8
13. In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, 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 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 `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 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 punire pro uno delicto", that is to say that no one ought to be twice punished 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 ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 9 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 & Anr., 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 taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive.
16. In Om Prakash Gupta v. State of U.P., AIR 1957 SC 458;
and State of Madhya Pradesh v. Veereshwar Rao Agnihotri, AIR 1957 SC 592, this Court has held that prosecution and conviction or acquittal under Section 409 IPC do not debar trial of the accused on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content.
17. In Leo Roy Frey v. Superintendent, District Jail, Amritsar & Anr., 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 120- B IPC. This Court held that an offence under Section 120-B is not the same offence as that under the Sea Customs Act:
"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 ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 10 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." (Emphasis added)
18. In The State of Bombay v. S.L. Apte and Anr. AIR 1961 SC 578, the Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2), held:
"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, 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 ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 11 offence". If the offences are not the same but are distinct, the ban imposed by this provision also .
cannot be invoked." (Emphasis added)
19. In Roshan Lal & Ors. 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, though it would be appropriate not to pass two separate sentences. A similar view has been reiterated by this Court in Kharkan & Ors. v. State of U.P., AIR 1965 SC 83.
20. In Bhagwan Swarup Lal Bishan Lal v. The State of Maharashtra, AIR 1965 SC 682, while dealing with the issue, held:
"11......The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar v. State of Bombay, AIR 1957 SC 747. Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour. The present case relates to a different conspiracy altogether. The conspiracy in question was to lift the funds of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter. Therefore, it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones.::: Downloaded on - 29/10/2022 20:32:27 :::CIS 12
Some accused may be common to both of them, some of the facts proved to establish the Jupiter .
conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence....
12......The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive ris not an ingredient of an offence. The proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of Article 20(2) of the Constitution and, therefore, that Article has no relevance to the present case." (Emphasis added)
21. In The State of A.P. v. Kokkiligada Meeraiah & Anr., AIR 1970 SC 771, this Court while having regard to Section 403 Cr.P.C., 1898, held:
"6.The following important rules emerge from the terms of Section 403 of the Code of Criminal Procedure:
(1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 13 may have committed, if the court trying the first offence was incompetent to try that other offence.
.
(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made.
r any (3) If a person is convicted of any offence constituted by act, and that act together consequences which resulted therefrom constituted with the a different offence, he may again be tried for that different offence arising out of the consequences, 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 who has once been tried by a Court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure." (Emphasis added)
22. The Constitution Bench of this Court in The Assistant Collector of the Customs, Bombay & Anr. v. L. R. Melwani & Anr. AIR 1970 SC 962, repelled the contention of the respondents therein that their criminal prosecution for alleged smuggling was barred because proceedings were earlier instituted against them before Collector of Customs. It ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 14 was observed that neither the adjudication before the Collector of Customs was a prosecution, nor the Collector .
of Customs was a Court. Therefore, neither the rule of autrefois acquit can be invoked, nor the issue estoppel rule was attracted. The issue estoppel rule is a facet of doctrine of autrefois acquit.
23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. (Vide: Pritam Singh & Anr. v. The State of Punjab, AIR 1956 SC 415; Manipur Administration, Manipur v. Thokchom Bira Singh, AIR 1965 SC 87; Workmen of the Gujarat Electricity Board, Baroda v. Gujarat Electricity Board, Baroda, AIR 1970 SC 87; and Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC
626).
24. In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia & Ors., AIR 1988 SC 1106, wherein the accused were prosecuted under Customs Act, 1962 (hereinafter referred to as `Customs ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 15 Act') and subsequently under Gold (Control) Act, 1968, (hereinafter called as `Gold (Control) Act') it was held:-
.
"7......that the ingredients of the two offences are different in scope and content. The facts constituting the offence under the Customs Act are different and are not sufficient to justify the conviction under the Gold (Control) Act.
It was held that what was necessary is to analyse the ingredients of the two offences and not the allegations made in the two complaints.
25. In M/s. P.V. Mohammad Barmay Sons v. Director of Enforcement AIR 1993 SC 1188, it was held:
"11.The further contention that under the Sea Custom Act for the self same contravention, the penalty proceedings terminated in favour of the appellant, is of little avail to the appellant for the reasons that two Acts operate in different fields, one for contravention of FERA and the second for evasion of excise duty. The mere fact that the penalty proceedings for evasion of the excise duty had ended in favour of the appellant, does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application." (See also: State of Bihar v. Murad Ali Khan & Ors., AIR 1989 SC 1;Union of India etc. etc. v. K.V. Jankiraman etc. etc., AIR 1991 SC 2010; State of Tamil Nadu v. Thiru K.S. Murugesan & Ors., (1995) 3 SCC 273; and State of Punjab & Anr. v. Dalbir Singh & Ors., (2001) 9 SCC 212).
26. In A.A. Mulla & Ors. v. State of Maharashtra & Anr., AIR 1997 SC 1441, the appellants were charged under Section 409 IPC and Section 5 of the Prevention of Corruption Act, 1947 for ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 16 making false panchnama disclosing recovery of 90 gold biscuits on 21-9-1969 although according to the .
prosecution case the appellants had recovered 99 gold biscuits. The appellants were tried for the same and acquitted. The appellants were also tried for offence under Section 120-B IPC, Sections 135 and136 of the Customs Act, Section 85 of the Gold (Control) Act and Section 23(1-A) of FERA and Section 5 of Import and Export (Control) Act, 1947. The appellants filed an application before the Judicial Magistrate contending that on the selfsame facts they could not be tried for the second time in view of Section 403 of the Code of Criminal Procedure, 1898 (corresponding to Section 300 Cr.P.C.).
27. This Court held:
"22.After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the respective parties, it appears to us that the ingredients of the offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact-situation and the enquiry for finding out facts constituting offences under theCustoms Act and the Gold (Control) Act in the second trial is of a different nature....... Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC of 1898 as alleged by the appellants." (Emphasis added)
28. In Union of India & Ors. v. Sunil Kumar Sarkar, AIR 2001 SC 1092, this Court considered the argument that if the ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 17 punishment had already been imposed for Court Martial proceedings, the proceedings under the Central Rules .
dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20 (2) of the Constitution. The Court explained that the Court Martial proceedings deal with penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not over- lap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the court placed reliance upon its earlier judgment in R. Viswan & Ors. v. Union of India & Ors., AIR 1983 SC 658.
29. In Union of India & Anr. v. P.D. Yadav, (2002) 1 SCC 405, this Court dealt with the issue of double jeopardy in a case where the pension of the official, who stood convicted by a Court-Martial, had been forfeited. The Court held:
"25....This principle is embodied in the well-known maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem causa, meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others..... Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise to prosecution on criminal side and also for action in civil court/ other forum for recovery of money by way of damages etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an offence of misconduct and ::: Downloaded on - 29/10/2022 20:32:27 :::CIS 18 whereas in passing order under Regulation 16 (a) for forfeiting pension, a person is not tried for the same .
offence of misconduct after the punishment is imposed for a proven misconduct by the General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16 (a) in relation to forfeiture of pension. Thus, punishing a person underSection 71 of the Army Act and making order under Regulation 16
(a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the rpresent cases."
30. In State of Rajasthan v. Hat Singh & Ors. AIR 2003 SC 791, this Court held that as the offence of glorification of Sati under Section 5 of the Rajasthan Sati (Prevention) Act, 1987, is different from the offence of violation of prohibitory order issued under Section 6 thereof, the doctrine of double jeopardy was not attracted for the reason that even if prohibitory order is promulgated, a subsequent criminal act even if falls under Section 5 could not be covered under Section 6(3) of the said Act. Doctrine of double jeopardy is enshrined in Section 300 Cr.P.C. and Section 26 of the General Clauses Act. Both the provisions employ the expression "same offence".
31. Similar view has been reiterated by this Court in State of Haryana v. Balwant Singh, AIR 2003 SC 1253, observing that there may be cases of misappropriation, cheating, defamation etc. which may give rise to prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc. Therefore, it is not always necessary that in every such case the provision of Article 20(2) of the Constitution may be attracted.
::: Downloaded on - 29/10/2022 20:32:27 :::CIS 1932. In Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi, AIR 2003 SC 2545, this Court while considering the case for quashing .
the criminal prosecution for evading the customs duty, where the matter stood settled under the Kar Vivad Samadhan Scheme 1988, observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy.
33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26of 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 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.
9. In view of the reasons stated hereinabove, I find no merit in this petition and the same is accordingly dismissed.
(Tarlok Singh Chauhan) Judge 28th October, 2022 (sanjeev) ::: Downloaded on - 29/10/2022 20:32:27 :::CIS