Madhya Pradesh High Court
Mathuralal Parmar vs Subhash Mewada on 23 July, 2019
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
M.Cr.C. No.14035 of 2019
Mathuralal Parmar and others Vs. Subhash Mewada
Miscellaneous Criminal Case No.14035 of 2019
Indore, Dated:- 23/07/2019
Shri Vibhor Khandelwal, learned Counsel for the
petitioners.
1. This is a petition under Section 482 of Cr.P.C. for
quashing Criminal Case No.753 of 2017 pending before the
Judicial Magistrate First Class, Shujalpur, District--Shajapur
under Sections 294, 307, 323, 324, 506/34 of the IPC and
Section 25 of the Arms Act, 1959.
2. Learned Counsel for the petitioners vehemently argued
that against the well settled principle of double jeopardy, the
petitioners are being forced to face two trial for the same
incident, which is against the spirit of Article 20(2) of the
Constitution of India.
3. Learned Counsel placed reliance on Sangeetaben
Mahendrabhai Patel Versus State of Gujarat and
another reported in (2012) 7 SCC 621.
4. Facts of the case reveal that there was a clash between the
families of the complainant Subhash Mewada and the
petitioner--Hariom. Counter FIR Nos. 399/2016 and 400/2016
were filed by Subhash and Hariom against each other at the
same Police Station--Shujalpur, District--Shajapur. FIR filed
by Subhash (No.399/16) was registered under Sections 323,
294, 506/34 of IPC and Section 25 of the Arms Act, 1959
against son and father Hariom and Mathuralal, while FIR filed
by Hariom (No. 400/16) was registered under Sections 324,
323, 294, 506/34 of the IPC against Subhash, his brother
Rajaram and all threee sons of Rajaram namely Vinod, Ajay
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
M.Cr.C. No.14035 of 2019
Mathuralal Parmar and others Vs. Subhash Mewada
and Sandeep. Later, at the time of filing of charge-sheet in the
FIR No.399/2016 of Subhash, Section 324 IPC was also added.
Subhash was not satisfied with the investigation done by the
police. After resorting other remedies, he filed a private
complaint against the petitioners alleging commission of
offence under Section 307 IPC along with some other offences.
Following the due process of law, the Judicial Magistrate
registered this complaint under Section 294, 307, 323, 324,
506/34 of IPC and issued arrest warrant to secure presence of
the petitioners.
5. Registration of this private complaint is being termed by
the petitioners as their second prosecution for the same offence
and, therefore, they pleaded that their this prosecution is
against the principle of double jeopardy and on this ground
quashment of this alleged second prosecution is sought for.
6. Hon'ble the Supreme Court in Sangeeta Ben case
(supra) referred by the petitioners themselves has made it clear
that Article 20(2) of the Constitution, Section 300 Cr.P.C.,
Section 71 IPC or Section 26 of General Clauses Act are
applicable only in that condition when ingredients of offences
in the earlier case as well as in the latter case are the same and
not different. Relevant paras 14, 15, 22 to 24 and 30 to 33 reads
as under:-
14. This court in Maqbool Hussain 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
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
M.Cr.C. No.14035 of 2019
Mathuralal Parmar and others Vs. Subhash Mewada
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
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 attracted.
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 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 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.14035 of 2019 Mathuralal Parmar and others Vs. Subhash Mewada 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 Act') and subsequently under Gold (Control) Act, 1968, [hereinafter called as `Gold (Control) Act'] it was held that : (SCC p.474, para7) "7......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.
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.
32. 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 5 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.14035 of 2019 Mathuralal Parmar and others Vs. Subhash Mewada 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 26 of 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.
7. In the present case, as is clear from the facts the subsequent proceedings that is to say the private complaint was registered for a different and distinct offence, therefore, as made it clear by Hon'ble Apex Court, principles of Double Jeopardy is not applicable in the present case. Otherwise also the petitioners have other remedies in the situation put forth by them before this Court and they can resort for the same to redress their grievances.
8. In view of the foregoing discussion, proceedings of the private complaint filed by the respondent, which is pending before the Judicial Magistrate First Class, as criminal case No.753 of 2017 cannot be quashed on the ground raised by the learned Counsel for the petitioners, therefore, admission is declined and the petition is dismissed.
(Virender Singh) Judge pp/ Digitally signed by Pankaj Pandey Date: 2019.07.25 10:08:02 +05'30'