Orissa High Court
Santosh Kumar Sahu vs State Of Orissa And Others on 30 November, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV NO. 164 of 2016
From the order dated 21.10.2011 passed by the Additional
Sessions Judge -cum- Special Judge, Nuapada in S.A. Case
No.11 of 2011.
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Santosh Kumar Sahu ......... Petitioner
-Versus-
State of Orissa
and others ......... Opp. parties
For Petitioner: - Mr. Bijaya Kumar Behera-1
Prabodh Kumar Dash
For Opp. party No.1: - Mr. Jyoti Prakash Patra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment- 30.11.2016
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S. K. Sahoo, J.The petitioner Santosh Kumar Sahu has filed this revision petition challenging the impugned order dated 21.10.2011 passed by the learned Additional Sessions Judge - cum- Special Judge, Nuapada in S.A. Case No.11 of 2011 in framing charge under section 376 of the Indian Penal Code. 2 It appears that on 05.05.2010 on the basis of the First Information Report submitted by one Chunilal Sabar, father of the victim before the Inspector in charge, Nuapada Police Station, Nuapada P.S. Case No. 37 of 2010 was registered under section 363 of the Indian Penal Code and section 3(1)(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter "1989 Act").
After completion of investigation, charge sheet was submitted on 28.07.2010 under section 363 of the Indian Penal Code and section 3(1)(xv) of the 1989 Act. The victim was not rescued by the time investigating agency submitted charge sheet.
The petitioner faced trial for offences punishable under section 363 of the Indian Penal Code and section 3(1)(xv) of the 1989 Act in the Court of learned Addl. Sessions Judge, Nuapada in S.A. Case No. 11 of 2010. During course of trial, the victim returned to her house on 11.10.2010 and on 03.12.2010 the statement of the victim was recorded by police. Her statement was also recorded under section 164 of Cr.P.C. She was also examined before the learned Trial Court as P.W.6 on 03.12.2010. After examination of the victim, on 07.02.2011 the investigating officer submitted supplementary charge sheet in 3 Nuapada P.S. Case No. 37 of 2010 under sections 363/376/372/373 of the Indian Penal Code and section 3(1)(xv)/2(v) of the 1989 Act. On the prayer made by the prosecution, vide order dated 21.07.2011, charge was altered to one under section 366 of the Indian Penal Code.
The learned Trial Court vide judgment and order dated 08.08.2011 held the petitioner guilty under section 366 of the Indian Penal Code so also under section 3(1)(xv) of the 1989 Act and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.20,000/- (rupees twenty thousand), in default of payment of fine, to undergo R.I. for one year for the offence under section 366 of the Indian Penal Code and further sentenced to undergo R.I. for three years and to pay a fine of Rs.5,000/- (rupees five thousand), in default of payment of fine, to undergo R.I. for three months for offence under section 3(1)(xv) of the 1989 Act and both the substantive sentences were directed to run concurrently.
The petitioner preferred an appeal before this Court in Criminal Appeal No. 507 of 2011 and vide judgment and order dated 23.12.2015, the appeal was allowed and the judgment and order of conviction passed by the learned Trial Court in S.A. Case No. 11 of 2010 was set aside.
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2. The learned Trial Court after convicting the petitioner vide judgment and order dated 08.08.2011 in S.A. Case No. 11 of 2010, passed the impugned order dated 21.10.2011 in S.A. Case No. 11 of 2011 holding that there was ground for presuming that the petitioner has committed an offence under section 376 of the Indian Penal Code and accordingly, framed charge against the petitioner.
3. Mr. Bijaya Kumar Behera-1, learned counsel for the petitioner challenging the impugned order dated 21.10.2011 contended that since relating to the self same facts, the petitioner has already faced trial for the offences under section 366 of the Indian Penal Code as well as section 3(1)(xv) of the 1989 Act and he was first convicted by the learned Trial Court and then acquitted by this Court in Criminal Appeal No. 507 of 2011, asking the petitioner to face another trial for the offence under section 376 of the Indian Penal Code is not permissible in the eye of law. It is further contended that by the time the victim was examined in the earlier trial, her statements under section 161 as well as 164 Cr.P.C. were already been recorded and she narrated the incident in details being examined as P.W.6 and thereafter, the supplementary charge sheet was submitted and then the prosecution filed an application for alteration of the 5 charge which was allowed and charge was altered to one under section 366 of the Indian Penal Code and therefore, in view of section 300 of the Cr.P.C., the learned Trial Court should not have proceeded with another trial and framed charge against the petitioner under section 376 of the Indian Penal Code only on the ground that there was no charge under section 376 of the Indian Penal Code in the first trial and it is a distinct offence for which separate charge has been framed. He further submitted that after the victim returned back to her house on 11.10.2010, no further incident has taken place and at the time of her examination before the learned Trial Court in the earlier trial as P.W.6 on 03.12.2010, the victim in her evidence did not whisper anything against the petitioner to have committed an offence under section 376 of the Indian Penal Code.
Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel for the State on the other hand contended that the victim has stated that in her 161 as well as 164 Cr.P.C. statements that the petitioner committed an offence under section 376 of the Indian Penal Code. He further submitted that even though the victim has not stated about the said facts during her deposition as P.W.6, there was no bar for the Court to take cognizance of the offence under section 376 of the Indian Penal 6 Code on the basis of supplementary charge sheet and also to try the petitioner under such offence. He further contended that there is no illegality or infirmity in the impugned order and therefore, the revision petition should be dismissed.
4. Section 300 of the Cr.P.C. states that a person once been convicted and acquitted after facing trial in the Court of competent jurisdiction shall not be tried again for the same offence.
Article 20(2) of the Constitution of India lays down that no person shall be prosecuted and punished for the same offence more than once. The principle underlying this clause is called double jeopardy.
Section 300 of the Cr.P.C. further indicates that when the conviction or acquittal of the accused is in force, he is not liable to be tried again either 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. Thus section 300 of the Cr.P.C. is a bar not only for the same offence but also for any other offence on the same facts, even on fresh evidence. Whether having been prosecuted once on a certain facts, a man 7 can be prosecuted again depends entirely on whether, at the earlier trial, he was in jeopardy of being convicted of the offence, for which he is tried or sought to be tried at the later trial. If he was not, the subsequent trial may proceed, and any evidence admissible in law to support the charge may be led, even if the identical evidence has been laid at the earlier trial.
In the present case, there is no dispute that in the earlier trial, the victim was examined as P.W.6 before the learned Trial Court on 03.12.2010. Her statements under section 161 as well as 164 of Cr.P.C. were by then recorded by the investigating officer and at that time, the trial was under progress. It is also not disputed that by the time of alteration of the charge by the learned Trial Court on the prayer of the prosecution on 21.07.2011 to one under section 366 of the Indian Penal Code, the supplementary charge sheet dated 07.02.2011 under sections 363/376/372/373 of the Indian Penal Code and section 3(i)(xv)/2(v) of the S.C. and S.T. (P.A.) Act has already been filed. The victim has narrated the incident in detail starting from the date when the petitioner gave a proposal for marriage to her and then she left her house with the petitioner till she returned back to village Shakatora. Therefore, in spite of the statements of the victim recorded under sections 161 and 164 Cr.P.C. as well as 8 submission of supplementary charge sheet dated 07.02.2011 and the evidence of the victim as P.W.6, a prayer was made for alteration of the charge to one under section 366 of the Indian Penal Code which was accepted by the learned Trial Court and accordingly, the charge was altered vide order dated 21.07.2011. The reason for not making a prayer by the prosecution to frame charge under section 376 of the Indian Penal Code was perhaps for the reason that the victim had not stated that the petitioner raped her or committed any sexual intercourse with her. While prosecuting an accused on the same facts, the prosecution cannot be permitted to bring accusations in a piecemeal manner. It will not only cause serious prejudice to the accused but also bring multiplicity of proceedings. Nothing prevented the victim to bring accusations against the petitioner for commission of offence under section 376 of the Indian Penal Code in the previous trial, in the event of which the prosecution could have taken steps for alteration of charge to one under section 376 of the Indian Penal Code. Therefore, I am of the view that this is a case which comes within the purview of "on the same facts for any other offence for which a different charge from the one made against him might have been made" as appears under section 300(1) of the Cr.P.C. 9
Learned counsel for the petitioner placed reliance in the case of Mitra Sankar Nanda -Vrs.- State of Orissa reported in (2010) 46 Orissa Criminal Reports 849, wherein this Court has held that relating to the same occurrence, the petitioner has already been tried for the offences and acquitted thereof on the same fact on the basis of which the second case was registered and nature of allegations made in the second case as well as in the earlier case reveals that in the earlier case also charge under section 506(II) of the Indian Penal Code could have been made against the petitioner and therefore, on the same fact when another G.R. Case was registered, the subsequent case was held to be barred under section 300(1) of the Cr.P.C. Learned counsel for the petitioner placed further reliance in the case of Kolla Veera Raghav Rao -Vrs.- Gorantla Venkateswara Rao reported in 2011 (I) Orissa Law Reviws (SC) 898, where it was held that section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', section 300(1) of 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. It was further held that 10 although the offences are different but the facts are the same. Hence, section 300(1) of Cr.P.C. applies.
In view of the above discussions, I am of the view that the order of framing charge by the learned Trial Court under section 376 of the Indian Penal Code against the petitioner is not sustainable in the eye of law. Accordingly, the impugned order dated 21.10.2011 and the entire criminal proceedings in S.A. Case No.11 of 2011 pending in the Court of learned Additional Sessions Judge -cum- Special Judge, Nuapada stands quashed.
In the result, the revision petition is allowed.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 30th November, 2016/Sukanta