Patna High Court
Ishodanand Biswas And Ors. vs The State on 19 January, 1955
Equivalent citations: AIR1955PAT396, 1955(3)BLJR219, 1955CRILJ1277, AIR 1955 PATNA 396
JUDGMENT
1. These two applications in revision have been heard together and arise out of facts of one common transaction in the following circumstances:
2. On 20-9-1951, an armed dacoity was committed by a number of persons involving the loss of a huge amount of cash from the United Commercial Bank at Deoghar. The raiders were alleged to have been armed with pistols and revolvers. The petitioners in Criminal Revision No. 911 of 1953, namely, Mihir Kumar Das, Sukhranjan Choudhry, Bimal Dutt and Kunjlal Chatterji, were arrested by the police in that connection and were sent up for the offence of dacoity. Petitioner Ishodanand Biswas, hpwever, of Criminal Revision No. 909 of 1953 was charged under Section 412 and Section 120-B, Penal Code. On 22-3-1952, the proceedings for commitment in respect of these charges and that under Section 19(f), Arms Act were transferred to the same Magistrate who on 9-6-1952, committed the accused persons to the Court of Session in respect of the two charges, one relating to dacoity, criminal conspiracy and receiving property, stolen in course of dacoity, and the other commitment was in respect of the accused persons being in illegal possession of fire-arms, thus having committed an offence punishable under Section 19(f) of the Arms Act.
On 26-7-1952, the two trials, one under the Arms Act and the other for dacoity, were ordered by the learned Sessions Judge, Santhal Parganas, to be taken up as analogous, but on 18-11-1952, an application was filed by the Public Prosecutor to split up the two trials. The learned Sessions Judge accordingly proceeded to take up Sessions Trial No. 17 of 1952 in which the petitioners in Criminal Revision No. 911 of 1953 were convicted of the offence of dacoity and sentenced to undergo rigorous imprisonment for a period of ten years each. Ishodanand Biswas, however, was acquitted of the charge of having received stolen property, removed in course of dacoity, and also of the charge of having entered into a conspiracy with the other accused persons to commit the dacoity.
The learned Sessions Judge, who tried the accused persons on the charge of dacoity, also passed an order in respect of Sessions Trial No. 16 of 1952 making reference to this Court that commitment in Sessions Trial No. 16 of 1952 be quashed. This Court heard the reference but was not satisfied that it was a fit case in which commitment in respect of the offence disclosed under Section 19(f) of the Arms Act be quashed. The reference was accordingly discharged. These two applications were thereafter filed in this Court by the accused persons, Criminal Revision No. 909 of 1953 having been filed on behalf of Ishodanand Biswas and Criminal Revision No. 911 of 1953 having been filed by the remaining four persons. The accused persons, as I have said above, pray that the commitment of the petitioners for the offence' under Section 19(f) of the Arms Act be quashed by this Court
3. Learned Counsel for the petitioners has contended that the commitment of the petitioners for the offence under the Arms Act is illegal inasmuch as all of them would be put up on trial in respect of facts and allegations which would constitute the offence under Section 19(f) of the Arms Act and these were the identical facts which were also pressed by the prosecution in Sessions Trial No. 17 of 1952. Ishodanand Biswas was acquitted and other petitioners were, no doubt, convicted of dacoity but whether acquittal or conviction, the trial of the petitioners on the identical set of facts is not sustainable in view of Section 403, Criminal P. C. He has also drawn our attention to a finding of the learned Sessions Judge in Sessions Trial No. 17 of 1952 in which he made certain observations with regard to whether Ishodanand Biswas could be held liable for being in possession of stolen properties kept in the room of a house which did not belong 'to him and was, in fact, the house of an' organization known as Deoghar Satsang run by Sri Anukul Chandra Thakur. Section 403, Criminal P. C., no doubt, provides in Sub-section (1) as follows :
"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 Section 236, or for which he might have been convicted under Section 237."
Learned counsel, accordingly, has pressed that in the case of Ishydanand Biswas there having been a trial and he having been acquitted, and likewise in the case of the other petitioners there having been a trial by the Sessions Judge and they having been convicted, such conviction and acquittal still remain in force, and as such they are not liable to be tried again on the same set of facts for any other offence. It has, however, been urged on behalf of the State that while considering Sub-section (1) of Section 403, one has to keep in mind Sub-section (2) of that section which puts the question involved in this case in the proper perspective. Subsection (2) of Section 403 runs thus:
"A person, acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1)."
To decide the question raised on behalf of the petitioners one has to turn back to the provisions of Sections 235 and 236, Cr. P. C. Section 235(1) refers to the fact that, where in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial, for every such offence. Section 236 provides that 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. In terms, therefore, Section 235(1) covers the case of more offences than one having been committed which are distinct offences, whereas Section 236 provides for a case where the act or series of acts constituting the offence is of such a nature that it is doubtful which one of several offences will be made out on the basis of those facts. Section 236, therefore, refers to the case of an offence or offences which are so connected that the same facts may fall within the ambit either of one offence or another, the shades of distinction between them being so fine as to make it doubtful which of the offence or offences really are made out by the facts alleged on behalf or the prosecution. The illustrations appended to the two sections make the position clear.
The distinction, therefore, between Section 235 and Section 236 is a tangible one, and in such a case where the question is one of conviction or acquittal, in so far as the principle thereof has been incorporated in Section 403, Criminal P. C., it can be easily answered with reference to whether the offence, which has once been the subject-matter of trial, rests on facts which are covered by Section 236 of the Code or the offence in respect of which a second trial is sought to be launched rests on the principle of Section 235(1) of the Code.
Where, therefore, it appears that the second trial sought to be started against the accused is in respect of a distinct offence -- an offence of a character which cannot be said to be cognate to the offence which was the subject-matter of the charge in the first trial -- it is clearly a case where Sub-section (2) of Section 403 of the Code will apply and they may afterwards be tried for that offence. It is no doubt true that the facts giving rise to more than one trial may also be connected with the same series of acts in such a manner as to form the same transaction; even as the single act or series of acts in respect of which the exact nature of the offence is doubtful may also form part of the same transaction, and in practice will form part of the transaction. But apart from this superficial resemblance between a situation contemplated under Section 235 and that under Section 236, of the Code, the underlying difference between the two is unmistakable. If, therefore, in respect of a second trial sought to be launched, it can be found that it relates to a distinct offence which may have been committed in course of the same transaction and yet is a distinct offence, Section 235(1) will apply, Learned, counsel for the petitioners has not been able to make put that the second trial in the present case is barred because the facts which give rise to the present trial under Section 19(f) of the Arms Act also happened to be considered or put in evidence in the trial of these accused persons for dacoity, conspiracy or receiving stolen property and the offence of illegal possession of a fire-arm is of a cognate nature to that of dacoity.
4. Learned counsel, however, referred to certain decisions in support of his argument that if the same state of Facts were involved in a trial which has come to a completion ending in acquittal or conviction, and a second trial is sought to be launched, the second trial must be barred inasmuch as there might be danger of the accused person being harassed twice over in respect of an offence with which he could have been charged in the previous trial. The first decision relied upon is in the case of -- 'Gauri Shankar Rai v. Emperor' AIR 1947 Pat 290 (A) wherein a single Judge of this Court held that where the accused persons were tried under Sections 147 and 323, Penal Code, and acquitted by a competent Magistrate, they could not be tried again under Section 188, Penal Code, for disobeying an order under Section 144, Criminal P. C., on the same facts and the same occurrence, Learned counsel lays emphasis upon this observation of Ray J. :
"Except some observation in -- 'Rangachariar v. Venkataswami Chetti', AIR 1935 Mad 56(2) at pp. 57-58 (B) and -- 'Fatten Mahomed v. Em peror', AIR 1926 Lah 639 (1) (C), the other cases might not be strictly in point but they illustrate the view that I am making out, namely, that the intention of the Legislature in enacting Section 403 is that an accused should not be vexed with more than one trial on the same facts."
At another place his Lordship observed:
"This also inferentially leads one to think that what section aims at, is that no accused should be vexed with more than one trial for offences' constituted by the same set of facts."
It appears, however, from the facts of the case that there was an order against the petitioners passed by a Magistrate under Section 144, Criminal P. C., and in violation of that order they went upon the land which they were asked not to go upon. They were tried for being members of an unlawful assembly and the charge against them was that they entered upon the land in disobedience of the order of the Magistrate and as such they were members of an unlawful assembly. It is clear, therefore, from the facts pf the case that the petitioners were tried not only upon the same facts but for the same offence in substance for which they were put on trial in respect of the offence under Section 188, Penal Code. That case, therefore, is clearly distinguishable on facts. The observation of his Lordship Ray J. must be construed and be confined to the facts in the context of which the observations were made.
The same learned Judge took the same view in the case of -- 'Ramautar Lal v. Emperor', AIR 1948 Pat 32 (D) in which the accused was prosecuted for contravention of Central Cloth and Yarn Control Order. That case, however, could not end in conviction inasmuch as sanction of the Provincial Government as required by Clause 23 of the order had not been obtained. The accused was thereafter prosecuted on the same facts for an offence consisting in contravention of Clause 3 of the Bihar Cloth and Yam Control Order, 1945. Ray J. held that a second trial was barred under Section 403, Criminal P. C., as the offence for which the accused was being tried in the subsequent prosecution was within the competence of the previous Court to try though the other offence with which he had been charged in that case, namely, under Central Cloth and Yarn Control Order, 1944 could not' be tried for want of sanction. That also, therefore, is a case of a cognate offence and not of a distinct offence. That is how the decision is to be construed. If his Lordship really intended to go beyond the facts of the case as is sought to be made out on behalf of the petitioners, with great respect, it is difficult for us to agree with the view.
What this Court has to see is as to whether Sub-section (1) or Sub-section (2) of Section 403 of the Code will apply. If, therefore, the offence is one of a distinct nature from the one which was tried, Sub-section (2) of Section 403 of the Code will be applicable which, in terms, allows a subsequent trial, and no question of the same state of facts being involved in both , the cases seems to have only relevance. If the Legislature in so many words laid it down that in the case of distinct offence, contemplated under Section 235(1) a subsequent trial may afterwards take place, it is not for a court of law to say whether it is just or unjust, expedient or otherwise that the second trial should or should not take place. The court of law has to give effect to the plain words of the statute. Since, however, we are satisfied that the observations of Ray J, in the above two cases are based upon the facts of those cases, there is no warrant for stretching them beyond the context.
5. Learned Counsel for the petitioners also referred to the case of -- 'Emperor v. Anant Narayan', AIR 1945 Bom 413 (E). That was a case where the accused was charged once under Sections 409 and 466, Penal Code, for having misappropriated certain sums of money. There was a second complaint in which he was charged tinder Section 409 with criminal, breach of, trust in respect of certain sums on two different dates. In the trial for the first two offences, the accused was acquitted. There was a second trial for the second offence for misappropriation of certain sums of money, as I have said, upon two different dates. Their Lordships of the Bombay High Court in the circumstances of the case, expressed the opinion that even though the plea of asteroids acquit under Section 403 was not technically available to the accused, the principle of it was available to him in the interest of justice and that the accused should not be tried again in respect of the third offence and should be acquitted. The facts of the case make it clear that the two offences committed also were of the same nature. They were not distinct offences except in, the sense that they were committed on different dates. It was in that view of the matter that their Lordships held that it would be unjust to try the accused person in respect of the latter offence and should be acquitted.
In that case the Bombay High Court adopted that view on a reference made by the Sessions Judge of Belagaun who was in seizing of the case committed to his court under Section 409, Penal Code. The learned Sessions Judge held that there having been a previous trial in respect of the same set of facts, the accused persons could have been charged in that trial for the same offence except that the misappropriations or criminal breach of trust were made on two different dates.
It was held to, be unjust to try the accused persons piecemeal and harass them by a series of trials. In substance, therefore, this decision also rests upon the principle of cognate offence. Moreover, their Lordships in coming to that conclusion stated thus:
"But the material considerations in this case are: That the jury have unanimously held the accused not guilty in the earlier trial and the accused has once been acquitted; that the accused has in fact 'paid the whole amount involved in the two trials'; and that it is undesirable that in the second trial there should be any risk of the jury's taking a view different from that taken by the jury in the first trial. In these circumstances, we think the principle enunciated by Subramania J. in -- 'Emperor v. Chinna Kaliappa', 29 Mad 126 (El) applies to the facts of this case and that second trial of the accused should be prevented."
It was in these circumstances that the reference was accepted and the commitment order was quashed. That is no authority, therefore, for the proposition that where a case is covered under Section 235(1) of the Code and the second trial is in respect of a distinct offence even then the principle of 'autrefois acquit' or convict should apply. In any case, their Lordships clearly set forth the circumstances in which they were inclined to adopt the view that the principle of Section 403(1), Cr. P. C., should apply.
The next case relied upon is a decision at the Calcutta High Court in the case of -- 'Sidh, Nath v. Emperor', AIR 1929 Cal 457 (F) wherein their Lordships took the view that there might be cases in which though Section 403, Cr. P. C. does not strictly apply yet on the principle underlying that section a second trial should not be allowed to proceed. In that case a challan was submitted against the accused that he had committed criminal breach of trust in respect of a gross sum but the trial was held with respect to only three particular items out of it, a second trial with respect to three other items included in the gross sum was held to be not proper and the principle of Section 403(1) was thus applied.
That, too therefore, was a case where the question was only one of items. The second trial sought to be launched against the accused was for the same offence except that certain other items were sought to be included. It is not a case of distinct offence except in a very technical sense and in that view their Lordships expressed the opinion that it would be vexatious to allow the prosecution to proceed piecemeal against ant accused persons by different trials where the substance of the charge is the same, the items constituting the offences alone being different.
6. Learned Counsel for the State has relied upon a decision of the Bombay High Court in the case of -- 'Ibrahim Iboo v. Emperor', AIR 1945 Bom 65 (G) in which a Division Bench of that court took the view that a second trial was not barred in the following circumstances. In, that case at person was charged with being in possession of illicit liquor but was acquitted. Subsequently, he was charged in a different trial with loitering" on the road under Section 112(d) of the Bombay City Police Act, and convicted. One of the arguments advanced in the case was that there having been a trial already on the same set of facts ending in the acquittal of the accused person on the charge of being in possession of illicit liquor, the second trial on the same facts was barred.
Their Lordships, however, took the view that the case before them under Sub-section (2) of Section 403, Cr. P. C. and although a separate charge against the accused persons might have been framed in the original trial under Section 112(d) of the Bombay City Police Act that, however, was no ground for holding that a second trial could not proceed in law because it was for a distinct offence and as such the case fell under Section 235(i) of the Code and, therefore, following another decision of that court in -- 'In re, Ochhavlal Bhikhabhai', AIR 1933 Bom 447 (II) their Lordships held that the trial was not barred.
It is clear from a discussion of the cases referred to above that the view of the Bombay High Court expressed in the case of Ibrahim Iboo (G) governs the present case as well. It is consistent with the clear words of Sections 403 and 235(1) and the decisions relied upon by learned counsel for the petitioners do not assist his clients. We are, therefore, satisfied that on this ground the petition cannot succeed and the trial of the petitioners must proceed to completion,
7. Learned counsel for the petitioners, however, sought to support his contention from a different point of view. He has argued that assuming that in terms of Sections 403 and 235 the present trial is not illegal, it should still be held that it is not fit to proceed on, inasmuch as the learned Sessions Judge in terms acquitted petitioner Ishodanand Biswas of being in possession of anything found in any of the rooms occupied by the petitioners or in the room of other persons in the house. It is no doubt true that the learned Sessions Judge observed as follows :
"It is likely therefore that accused Kunjalal Chatterjee and Bimal Dutt, both of whom belong to East Bengal, came in the house of accused Ishadanand. Biswas and to his knowledge as casual visitors. In this background it is difficult to infer that accused Ishadanand Biswas was in criminal conspiracy with them either to commit dacoity or to commit an offence punishable under Section 412, I. P. C,"
8. It is contended that in this view it should fee held that if the revolvers and pistols were found in the room, Ishodanand Biswas cannot be held liable for being in illegal possession of these weapons exposing him to penalty under Section 19(f) of the Arms Act. This contention of learned counsel is in respect of Ishodanand Biswas alone, who is petitioner in Criminal Revision No. 909 of 1953. He was referred in this connection to a decision of their Lordships of the Judicial Committee in the ease of -- "Sambasivam v. Public Prosecutor, Fedration of Malaya', 54 Cal WN 695 (PC) (I).
That was a case from Malaya. An Indian clerk in this case was prosecuted on the allegations that in co'urse of a fight in the street he fired upon and killed a Malayan with a loaded revolver. He was tried on two charges, one relating to the carrying of a firearm and the other relating to the possession of ammunition. The learned Judge acquitted the accused on the charge relating to possession of ammunition but ordered a retrial of the accused person in respect of the first charge, namely, with regard to carrying of a firearm.
This course was adopted by him because he accepted the verdict of the assessors so far as the second charge was concerned, but disagreed with the assessors in respect of the first charge relating to the carrying of a firearm. The accused person thereafter was retried and convicted. He went to the Privy Council against the conviction. Their Lordships of the Judicial Committee took the view that the "maxim res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings, and accordingly the prosecution in the above case was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the retrial on the first charge and the accused was equally entitled to rely on his acquittal, in his defence at the retrial, since the facts proved in support of one charge were clearly relevant to the other.
The same view was expressed by the Calcutta High Court in the case of 'Manick Chand Agarwalla v. The State', AIR 1952 Cal 730 (J). It appears, however, from the facts of both these cases that their Lordships both of the Judicial Committee and the Calcutta High Court, were not considering the propriety of the retrial but the propriety of the conviction at the retrial after an acquittal was recorded on the same set of facts in another trial. The question of 'res judicata proveritate accipitur' was considered in that context.
The contention of learned counsel for the petitioner Ishodanand Biswas based upon these two decisions, therefore, has no substance. In what way, however Ishodanand Biswas can take advantage of the observation of the learned Sessions Judge made in Sessions Trial No. 17 of 1952 is for him to consider on proper advice at the proper stage. As it is however, these two decisions are of no avail so far as the present trial is concerned.
9. Learned Counsel also relied upon Article 20 of the Constitution of India Clause (2) of that Article, no doubt, lays down that no person shall be prosecuted and punished for the same offence more than once. In the present case, however, what we are concerned with is not the same offence but prosecution for a distinct offence. As I have said above, possession, of firearm without license is an offence independent of the offence of the dacoity and in that view it is a case of a distinct offence and Clause (2) of Article 20 of the Constitution of India does not bar the present trial.
We may also state here that not only on facts the offence of illegal possession of firearms is independent of the offence of dacoity, but that in certain circumstances, the trial in respect of an offence committed by a person in illegal possession of arms against the Arms Act, is an offence which cannot conveniently be tried with some other substantive offence committed with it inasmuch as Section 29 of the Arms Act provides that before a prosecution under Section 19(f) of the Arms Act can take place, sanction of the District Magistrate is necessary, That may take time, or the District Magistrate in certain circumstances may not think it expedient to order the prosecution although the offence committed by a person in possession of Arms without license, with such weapon will be subject-matter of a trial in the ordinary course of law. This is an additional reason why there is nothing unjust in a separate trial under Section 19(f) of the Arms Act although the accused persons were in possession of firearms without license and, in fact, used those firearms for the purpose of committing dacoity which offence was the subject-matter of another trial.
For this reason also, apart from other considerations, there is no substance in the argument on behalf of the petitioners that it is unjust that the petitioners should be harassed in a second trial on the same set of facts for which they were tried before on another charge.
10. For the reasons given above, it must be held that there is no merit in the petitions and they are accordingly dismissed.