Criminal Miscellaneous No.19657 OF 1998
In the matter of an application under
Section 482 of the Code of Criminal
Procedure
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Jagdish Tiwari, Son of Late Kamta Nath
Tiwari, resident of Village-Atarwalia, Post
Office and Police Station-Mohania,
District-Kaimur(Bhabhua)
—–Petitioner
Versus
1 THE STATE OF BIHAR
2. Ram Bilas Paswan, Block Development
Officer, Mohania, District-Kaimur
— Opp.Parties.
For the petitioner :S/Sri.K.N.Choubey,
Sr.Advocate.
Nagendra Dubey,Adv.
For the State : Mr.A.M.P.Mehta, A.P.P.
————
P R E S E N T
THE HON’BLE SHRI JUSTICE RAKESH KUMAR
Rakesh Kumar, J The sole petitioner, while invoking
inherent jurisdiction of this Hon’ble Court under
Section 482 of the Code of Criminal Procedure,
has virtually prayed for quashing of the F.I.R.
i.e. Mohania P.S. Case No.53 of 1998.
2. Sri K.N.Choubey, learned Senior
counsel appearing on behalf of the petitioner
submits that on same allegation, two F.I.Rs were
lodged as per the information given by one Ram
Bilas Paswan, Block Development Officer, Mohania,
District-Kaimur i.e. Mohania P.S. Case No.53 of
1998 and Mohania P.S. Case No.54 of 1998. Learned
Senior Counsel further submits that almost on
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similar allegation a case vide Mohania P.S. Case
No.54 of 1998 was registered. In the second case,
i.e. Mohania P.S. Case No.54 of 1998, the police
after investigation submitted chargesheet under
Section 409 of the Indian Penal Code against co-
accused, namely, Dharmu Ram, who was Panchayat
Sewak at the relevant time showing him as an
absconder. So far the petitioner’s case is
concerned, the police had not find sufficient
evidence for forwarding him to face trial. The
final report was submitted by the police on
31.5.1999.Subsequently, by order dated 30.6.1999,
the learned Chief Judicial Magistrate took
cognizance of offence under Section 409 of the
Indian Penal Code against accused Dharmu Ram.
Learned Sr. Counsel submits that in view of
taking cognizance against accused Dharmu Ram by
necessary implication, it is evident that the
learned Chief Judicial Magistrate accepted the
final form submitted by the police in respect of
this petitioner. Of course, the order does speak
the same in the clear term.
3. Learned Senior counsel for the
petitioner has referred to column-4 of Annexure-
1, i.e. F.I.R. of Mohania P.S. Case No.53 of
1998. In Column-4, the name of the informant,i.e.
Ram Bilas Paswan was mentioned. The learned
counsel has also referred to Column-4 of
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Annexure-2, i.e. F.I.R. of Mohania P.S. Case
No.54 of 1998. In column-4 of the two F.I.Rs.,
name of Ram Bilas Paswan appears as the
informant. Learned counsel for the petitioner
tried to impress upon the Court that since in
both cases informants are same, it can be assume
that for the same allegation two F.I.Rs were
lodged. Learned counsel further submits that
since in one case i.e. Mohania P.S. Case No.54 of
1998, the petitioner was exonerated by the police
after completion of the investigation, which was
also accepted by the learned Chief Judicial
Magistrate, the petitioner may not be compelled
to face prosecution in Mohania P.S. Case No.53 of
1998. He submits that in Mohania P.S. Case No.53
of 1998 there is same and similar allegation, as
alleged in Mohania P.S. Case No.54 of 1998. He
further submits that in view of Section 300 of
the Code of Criminal Procedure as well as
Article-20(2) of the Constitution of India, the
petitioner can not be twice prosecuted for the
same offence. On these grounds, learned Senior
Counsel has virtually prayed that F.I.R. of
Mohania P.S. Case No.53 of 1998 be quashed and
the petitioner may not be compelled to face
prosecution in Mohania P.S. Case No.53 of 1998.
4. Sri A.M.P.Mehta, learned A.P.P.
for the State has opposed the prayer of the
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petitioner. First of all, he submits that at the
initial stage of investigation that too only on
the basis of perusal of the F.I.R. it would be
difficult for this Court to examine as to whether
the petitioner was proceeded on same and similar
accusation in two cases or not. He further
submits that these things can be looked by the
concerned court and not by this Court while
exercising power under Section 482 of the Code of
Criminal Procedure.
5. I have also minutely examined two
F.I.Rs , which have been annexed as Annexures 1
and 2 to the petition. The first F.I.R.,i.e.
Mohania P.s. Case No.53 of 2998 was registered
against one accused , who was Panchayat Sewak of
the Gram Panchayat-Bhitty. The name of sole
accused in the said F.I.R. is Dharmu Ram. In the
said F.I.R. the specific allegation against
Dharmu Ram was regarding dereliction of duty and
non-production of official records despite
repeated direction. There was also an allegation
that Dharmu Ram had misappropriated the
Government fund relating to Jawahar Rojgar Yojna.
6. In the second F.I.R. i.e. Mohania
P.S. Case No.54 of 1998, of course, the informant
was the same, but in the said F.I.R. two persons
were named as accused. Those are Dharmu Ram,
Panchayat Sewak and this petitioner, who was at
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the relevant time Mukhiya of the Gram Panchayat.
In the second F.I.R., i.e. Mohania P.S. Case
No.54 of 1998, there was specific allegation of
misappropriate of fund under the Jawahar Rojgar
Yojna. Specifically the amount of
misappropriation and dates of misappropriation
were mentioned in the said F.I.R.
7. On perusal of both the F.I.Rs.,
prima facie I am of the view that one cannot
come to the conclusion that in both the F.I.Rs
allegations are same and similar.Moreover, in the
second F.I.R.i.e. Mohania P.S. Case No.54 of 1998
after investigation the police did not find
sufficient materials for sending the petitioner
for trial . Only on the ground of non-sending of
the petitioner for facing the trial, this plea
cannot be taken that the petitioner cannot be
asked to face prosecution twice for such
allegation. It is evident that only after
investigation, final form was submitted by the
police and the petitioner was never put on trial.
Accordingly, I am of the view that in such a
situation, the petitioner may not be allowed to
take the protection under Section 300 of the Code
of Criminal Procedure. It would be appropriate to
quote the provisions contained in Section 300 of
the Code of Criminal Procedure , which is as
follows:
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“300.Person once convicted or acquitted
not to be tried for same offence–
(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) (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 with,
7and 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.
8. So far as violation of fundamental
right in view of Article 20(2) of the
Constitution is concerned, merely on perusal of
definition of said Article, one can come to the
conclusion that this provision shows that one
cannot be prosecuted and punished twice for the
same offence. It is also necessary to quote the
provisions contained in Article-20 of the
Constitution of India.
“20. Protection in respect of conviction
for offences–(1) No person shall be convicted of
any offence except for violation of a law in
force at the time of the commission of the act as
an offence, nor be subjected to a penalty greater
than that which might have been inflicted under
the law in force at the time of the commission of
the offence.
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(2) No person shall be prosecuted and
punished for the same offence more than once.
(3) No person accused of any offence
shall be compelled to be a witness against
himself.”
9. On perusal of the provision contained in Clause 2 of Article 20 of the
Constitution of India, it is evident that this
protection is given to a citizen that he cannot
be prosecuted and punished for the same offence
more than once. In the present case, it is not a
case that the petitioner was prosecuted and
punished. Even in one case only police had
conducted investigation and thereafter he was
exonerated. The petitioner was neither prosecuted
nor punished for the same offence. Accordingly, I
am of the view that in the facts and
circumstances of the present case, both
provisions i.e. provision under Article 20(2) of
the Constitution of India or Section 300 Cr.P.C.
are not applicable.
10. So far as the allegation made in
the first F.I.R. i.e. Mohania P.s. Case No.53 of
1998 is concerned, on perusal of the F.I.R. it is
evident that the petitioner was not named in the
said F.I.R.This F.I.R. was lodged only against
Dharmu Ram, who was Panchayat Sewak. Moreover,
after lodging the F.I.R. while the case was at
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the initial stage of the investigation, the
petitioner rushed to this Court while invoking
inherent jurisdiction of this Court under Section
482 of the Code of Criminal Procedure by filing
the present case. In this case, by the order
dated 16.9.1998 while admitting the case , this
Court had directed that during the pendency of
this application, further proceeding in Mohania
P.S. Case No.53 of 1998 appertaining to G.R.Case
No.361 of 1998 shall remain stayed. The order of
stay is still continuing.
11. In the facts and circumstances
of the case,I am of the view that at the initial
stage of investigation, it would not be
appropriate for this Court to interfere in such
cases. Unless a report is submitted by the police
before the Magistrate, it cannot be said that a
proceeding was pending. In absence of pendency of
a proceeding before the Court below, one has got
no right to invoke inherent jurisdiction under
Section 482 of the Code of Criminal Procedure.
Accordingly, on the ground of maintainability
itself, the petition is liable to be rejected.
However, without recording my opinion on the
point of maintainability of the present case, in
the peculiar facts and circumstances of the case,
I am of the view that only on perusal of two
F.I.Rs, it is difficult for this Court to come to
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a definite conclusion that the petitioner was
made accused twice for the same and similar
allegation. Moreover, perusal of the F.I.R.
indicates that the allegations are not exactly
similar in two F.I.Rs.
12. Accordingly, I do not find any
merit in this petition and the petition stands
rejected.
13. In view of rejection of the
present petition the interim order of stay, which
was granted on 16.9.1998, stands automatically
vacated.
Let this order be communicated to the
court below forthwith.
( Rakesh Kumar, J)
Patna High Court,Patna
Dated : the 2nd April,2010
Nawal Kishore Singh/N.A.F.R.