B.K.PATEL, J.
Criminal Revision No.252 of 2002 (Decided on 5.5.2010).
MITRA SANKAR NANDA ............. Petitioner.
.Vrs.
STATE OF ORISSA & ANR. .............. Opp.Parties.
CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) – SEC.300(1)
For Petitioner – M/s. D.K.Mishra, R.P.Mohapatra, D.Panda,
S.K.Ratha & R.K.Parida.
M/s. A.K.nanda & G.N.Sahoo.
For Opp.Parties – Addl. Standing counsel
M/s. G.Pr.Mohanty, H.K.Kar, N.K.Das
& M.K.Maharana (for O.P.2).
B.K.PATEL, J. This revision is directed against judgment dated
31.8.2002 passed by learned Sessions Judge, Sundargarh in Criminal
Appeal No.1/21 of 2000 confirming the judgment and order dated
29.2.2000 passed by the learned S.D.J.M., Bonai in G.R. Case No.384 of
1993, corresponding to Gurundia P.S. Case No.25 of 1993, by which the
petitioner was convicted under Sections 341, 323 and 506(II) of the I.P.C.
and sentenced to undergo simple imprisonment for one month under
Section 341 of the I.P.C., for three months under Section 323 of the
I.P.C. and for six months under Section 506(II) of the I.P.C.
2. Informant-P.W.3 was the Block Development Officer (B.D.O.), Gurundia and the
petitioner was working as Police Constable in Gurundia Police Station during the period
of occurrence. Prosecution case is that on 23.11.1993 at about 9.30 P.M. P.W.3 heard
that the petitioner was abusing him in a drunken state in filthy and obscene language
near his home. When P.W.3 came out from the house and went near the Block Office
gate, the petitioner dragged him to the road, assaulted him, threw him on the road and
tried to throttle his neck. The petitioner also was asking for a Tangia. Some of the Block
personnel intervened to bring the occurrence to an end. Finding the Officer-In-Charge
absent from the Gurundia Police Station, P.W.3 submitted F.I.R. Ext.1 to Sub-Divisional
Police Officer (S.D.P.O.), Bonai. On being directed by the S.D.P.O., Bonai, Circle
Inspector of Police, Bonai took up investigation and submitted final report stating the
case to be mistake of law. In response to protest petition filed by P.W.3, enquiry under
Section 202 of the Cr.P.C. was conducted by the learned S.D.J.M., Bonai and
cognizance of offences under Sections 323, 294 and 506 of the I.P.C. was taken.
Petitioner took the plea of complete denial. In order to substantiate the case,
prosecution examined three witnesses and relied upon F.I.R. Ext.1. P.Ws.1 and 2 were
occurrence witnesses. On appraisal of evidence on record, learned S.D.J.M. convicted
and sentenced the petitioner as stated supra.
3. It was submitted by the learned counsel for the petitioner that from the very
beginning the petitioner assailed his prosecution in the present case on the ground of
bar under Section 300 of the Cr.P.C. on the assertion that trial in the present case
amounted to double jeopardy. It was submitted that on the basis of allegations arising
out of the self-same occurrence, the petitioner was tried for alleged commission of
offences under Sections 160, 341, 323, 324 and 294 of the I.P.C. and acquitted in G.R.
Case No.383 of 1993 in the court of learned S.D.J.M., Bonai. It was strenuously argued
that both the learned Courts below failed to appreciate the embargo under Section 300
of the Cr.P.C. It was categorically admitted by the informant-P.W.3 himself in course of
his cross-examination that G.R. Case No.383 of 1993 was also registered for the self-
same occurrence. It was further argued that non-examination of the Investigating
Police Officer gravely prejudiced the petitioner. On completion of investigation, final
report stating the case to be mistake of law was filed by the Investigating Police Officer
on the ground that on the basis of allegations arising out of self-same occurrence
Gurundia P.S. Case No.24 of 1993 had been registered prior to registration of the
present case as Gurundia P.S. Case No.25 of 1993. Confusion, if any, which arose in
the mind of both the learned Courts below regarding the cases to have arisen out of the
self-same occurrence would have been clarified by the Investigating Police Officer.
4. In reply, it was submitted by the learned counsel for the State and learned counsel
for the opposite party no.2-informant that both the learned Courts below have assigned
cogent reasons in support of their findings to the effect that facts and circumstances of
the case do not attract application of provision under Section 300 of the Cr.P.C. It has
also been concluded that non-examination of the Investigating Police Officer has not
been prejudicial to the petitioner.
5. The vital question raised in this revision is the applicability of bar under the
provision under Section 300 of the Cr.P.C. against the proceeding in G.R. Case No.384
of 1993 in view of earlier judgment in G.R. Case No.383 of 1993. Section 300 of the
Cr.P.C. reads:-
“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) 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,
and 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.”
6. Provision under Article 20 of the Constitution of India provides that no person
shall be prosecuted and punished for the self-same offence more than once. But
provision under Sub-section (1) of Section 300 of the Cr.P.C. lays down that a person
once convicted or acquitted cannot be tried for the same offence subject to exceptions
under Sub-section (2) to (6) thereof.
7. In Maqbool Hussain -vrs.- State of Bombay : AIR 1953 SC 325, it was
observed by the Hon’ble Supreme Court :
“(7) The fundamental right which is guaranteed in Art.20(2) enunciates the
principle of “autrefois convict” or “double jeopardy”. The roots of that principle
are to be found in the well established rule of the common law of England “that
where a person has been convicted of an offence by a Court of competent
jurisdiction the conviction is a bar to all further criminal proceedings for the same
offence”. (Per Charles J. in Reg. v. Miles (1890) 24 Q. B. D. 423 (A)). To the
same effect is the ancient maxim “Nimo Bis Debet Puniri Pro Uno Delicto”, that
is to say that no one ought to be twice punished for one offence or as it is
sometimes written “Pro Eadem Causa” that is for the same cause.
(8) This is the principle on which the party pursued has available to him the
plea of “autrefois convict” or “autrefois acquit”.
“The plea of ‘autrefois convict’ or “autrefois acquit” avers that the defendant has
been previously convicted or acquitted on a charge for the same offence as that in
respect of which he is arraigned…….The question for the jury on the issue is whether
the defendant has previously been in jeopardy in respect of the charge on which he is
arraigned, for the rule of law is that a person must not be put in peril twice for the same
offence. 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, not that the facts relied on by the Crown 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”. (Vide
Halsbury’s Laws of England-Hailsham Edition-Vol.9, Pages 152 & 153, Para.212.)
(9). This principle found recognition in section 26 of the General Clauses Act,
1897-
“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”,
and also in S.403 (1), Criminal P.C., 1898-
“A person who has 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 S.236, or for which he
might have been convicted under S.237″.”
8. In Khartan and others -vrs.- State of Uttar Pradesh : AIR 1965 SC 83, it has
been held by the Hon’ble Supreme Court that a plea of autrefois acquit which is
statutorily recognized in India under Section 403 of the Cr.P.C. (Section 300 of the new
Cr.P.C.) arises when a person is tried again 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 Section 236 (Section 221(1) of the new Cr.P.C.) or for which he
might have been convicted under Section 237 (Section 221 (2) of the new Cr.P.C.).
9. In Mohammad Safi -vrs.- The State of West Bengal : AIR 1966 SC 69, it has
been held by the Hon’ble Supreme Court that the provisions of Section 403 are based
upon the general principle of autrefois acquit recognized by the English Courts. The
principle upon which the right to plead autrefois acquit depends is that a man may not
be put twice in jeopardy for the same offence. This principle is incorporated in Article 20
of the Constitution. In order that the bar in Section 403 (1) of the Cr.P.C. may apply it
must be shown that a person has once been actually tried by a competent court for
same offence charged in the second trial, or though not actually tried for he same
offence charged in the second trial, he could have been on the same facts charged with
it under Section 236 or convicted of it under Section 237 of the Cr.P.C.
10. In Thakur Ram and others -vrs.- The State of Bihar : AIR
1966 SC 911, it has been held that the provisions under Section 403 (1)
of the old Cr.P.C. bars the trial of the person again not only for the same
offence but also for any other offence based on the same facts.
11. In Mukhtiar Ahmed Ansari -v.- State (N.C.T. of Delhi) : 2005 Crl.L.J. 2569 the
appellant and two others had earlier been charged for kidnapping in Sessions Case and
acquitted by Additional Sessions Judge. It was held by the Hon’ble Supreme Curt that
once the appellant was acquitted in kidnapping case, the doctrine of autrefois acquit gets
attracted against his trial for kidnapping in the Designated Court under the Terrorists and
Disruptive Activities (Prevention) Act, 1987.
12. There is also rule of issue estoppel in a criminal trial. In Manipur
Administration, Manipur -v.- Thokchom Bira Singh : AIR 1965 SC 87 it was held
that the rule of issue estoppel in a criminal trial is that where an issue of fact has been
tried by a competent court on a former occasion and a finding has been reached in
favour of an accused, such a finding would constitute an estoppel or res judicata against
the prosecution, precluding the reception of evidence to disturb that finding of fact when
the accused is tried subsequently even for a different offence which might be permitted
by the terms of Section 403 (2) of the Cr.P.C. (Section 300 (2) of the new Cr.P.C.). The
rule thus relates only to the admissibility of evidence which is designed to upset a
finding of fact recorded by a competent court at a previous trial. The rule is not the same
as the plea of double jeopardy or autrefois acquit, but Section 403 of the Cr.P.C. does
not preclude the applicability of this rule of issue estoppel.
13. In Ravinder Singh -vrs.- State of Haryana : AIR 1975 SC 856, it has been
pointed out by the Hon’ble Supreme Court :
“In order to invoke the rule of issue estoppel in a criminal trial, there is an issue
estoppel, if it appears that the same point was determined in favour of an
accused in a previous criminal trial which is brought in issue on a second
criminal trial of the same accused. In order to invoke the rule of issue estoppel
not only the parties in the two trials must be the same but also the fact-in-issue
proved or not in the earlier trial must be identical with what is sought to be
reagitated in the subsequent trial.”
14. There is no dispute with regard to legal proposition that a person cannot be
exposed to double jeopardy in view of provision under Section 300 of the Cr.P.C.
However, it appears that both the Courts below came to a conclusion that allegations in
the present case, i.e., in G.R. Case No.384 of 1993 and earlier G.R. Case No.383 of
1993 arose out of two occurrences. On perusal of materials on record it is found that the
finding is contrary to evidence on record. P.W.3-informant has categorically admitted in
his cross-examination that G.R. Case No.383 of 1993 was also registered by Gurundia
Police for the self-same occurrence. He deposed:
“It is a fact that another police case G.R. 383/93 was also
registered by Gurundia Police for the same occurrence”.
Thus, there is clear admission in unambiguous term that allegations in G.R. Case
No.383 of 1993 corresponding to Gurundia P.S. Case No.24 of 1993 also related to the
occurrence in the present case.
15. In the final report submitted under Section 173 of the Cr.P.C. in the present case
it had been concluded:
“During course of investigation when formal FIR was drawn up vide Gurundia
P.S. Case No.25/93, I found that on the same facts, date, hour of occurrence,
spot, a case vide Gurundia P.S. Case No.24 dt.24-11-93 U/s.
160/341/323/324/294 IPC was registered and investigated by ASI, M.K.
Chodhury, in the capacity of OIC, Gurundia P.S.
Under the above facts and circumstances after supervision and
investigation of both the cases it was found that case no.24/93 is a true one
u/s.160 IPC and both the accused persons C/776 M.S. Nanda and Sri P.K.
Das, Ex-B.D.O., Gurundia Block Office made themselves liable u/s 160 IPC.”
16. It appears from the judgment dated 20.1.2000 passed by the learned S.D.J.M.,
Bonai in G.R. Case No.383 of 1993, i.e., Gurundia P.S. Case No.24 of 1993 and other
materials on record that in the said case for alleged occurrence which took place at
about 10.00 P.M. on 23.11.1993, case was registered against petitioner as well as
informant-P.W.3 for commission of offences under Sections 160, 341, 323, 324 and 294
I.P.C. Both of them faced trial, in course of which as many as seven witnesses were
examined, and were acquitted. Allegation, in brief, in the said case was that on hearing
some persons abusing him, P.W.3 came out from the Block campus by climbing over the
boundary gate and challenged as to why they were abusing him. During challenge, the
informant-P.W.3 and petitioner caught hold of each other and rolled on the road. They
also assaulted each other by fist blows and the informant bit petitioner’s left thumb.
Thus, it is evident that occurrence took place on the public road near the Block gate at
about 9.30 to 10.00 P.M. Therefore, on the face of clear admission made by P.W.3 that
G.R. Case No.383 of 1993 was also registered for the same occurrence, obviously, the
petitioner is found to have been already tried for offences and acquitted thereof on the
same fact on the basis of which the present case was registered. In the present case,
the petitioner faced prosecution of offences under Sections 341, 323 and 506 (II) of the
I.P.C. In the earlier trial in G.R. Case No.383 of 1993 also allegations were made of
commission of offences under Sections 341 and 323 as well as 324 and 294 of the
I.P.C. Nature of allegations made in the present case as well as the earlier case reveals
that in the earlier case also charge under Section 506 (II) of the I.P.C. could have been
made against the petitioner. Judgments passed by both the learned courts below
suffered from non-consideration of fact involving both the cases more particularly in
G.R. Case No.383 of 1993, which resulted in a trial, barred under Section 300 (1) of the
Cr.P.C.
17. It was rightly contended by the learned counsel for the petitioner that non-
examination of Investigating Police Officer by the prosecution caused prejudice to the
petitioner. Had the Investigating Police Officer been examined, he could have certainly
unfolded the circumstance under which final report had been submitted in this case, as
mentioned supra at paragraph-15 of this judgment. However, the informant-P.W.3, who
also faced trial in G.R. Case No.383 of 1993, has categorically admitted that both the
cases arose out of same occurrence. In view of such admission, the learned Courts
below committed illegality in not accepting the petitioner’s plea of bar against his trial in
the present case in view of provision under Section 300(1) of the Cr.P.C. as well as the
rule of issue estoppel.
18. In view of above discussions, the revision is allowed. Impugned judgments
dated 31.8.2002 passed by learned Sessions Judge, Sundargarh in Criminal Appeal
No.1/21 of 2000 and dated 29.2.2000 passed by the learned S.D.J.M., Bonai in G.R.
Case No.384 of 1993 are set aside.
Revision allowed.
