{"id":187397,"date":"2010-05-05T00:00:00","date_gmt":"2010-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mitra-sankar-nanda-vs-vrs-on-5-may-2010"},"modified":"2015-03-21T14:42:52","modified_gmt":"2015-03-21T09:12:52","slug":"mitra-sankar-nanda-vs-vrs-on-5-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mitra-sankar-nanda-vs-vrs-on-5-may-2010","title":{"rendered":"Mitra Sankar Nanda vs Vrs on 5 May, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Orissa High Court<\/div>\n<div class=\"doc_title\">Mitra Sankar Nanda vs Vrs on 5 May, 2010<\/div>\n<pre>                                     B.K.PATEL, J.\n<\/pre>\n<p>               Criminal Revision No.252 of 2002 (Decided on 5.5.2010).\n<\/p>\n<pre>MITRA SANKAR NANDA                                .............          Petitioner.\n\n                                       .Vrs.\n\nSTATE OF ORISSA &amp; ANR.                           ..............        Opp.Parties.\n\n<\/pre>\n<p>CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) &#8211; SEC.300(1)<\/p>\n<p>    For Petitioner &#8211; M\/s. D.K.Mishra, R.P.Mohapatra, D.Panda,<br \/>\n                    S.K.Ratha &amp; R.K.Parida.\n<\/p>\n<p>                     M\/s. A.K.nanda &amp; G.N.Sahoo.\n<\/p>\n<p>    For Opp.Parties &#8211; Addl. Standing counsel<br \/>\n                    M\/s. G.Pr.Mohanty, H.K.Kar, N.K.Das<br \/>\n                    &amp; M.K.Maharana (for O.P.2).\n<\/p>\n<p>B.K.PATEL, J.        This revision is directed against judgment dated<\/p>\n<p>31.8.2002 passed by learned Sessions Judge, Sundargarh in Criminal<\/p>\n<p>Appeal No.1\/21 of 2000 confirming the judgment and order dated<\/p>\n<p>29.2.2000 passed by the learned S.D.J.M., Bonai in G.R. Case No.384 of<\/p>\n<p>1993, corresponding to Gurundia P.S. Case No.25 of 1993, by which the<\/p>\n<p>petitioner was convicted under Sections 341, 323 and 506(II) of the I.P.C.\n<\/p>\n<p>and sentenced to undergo simple imprisonment for one month under<\/p>\n<p>Section 341 of the I.P.C., for three months under Section 323 of the<\/p>\n<p>I.P.C. and for six months under Section 506(II) of the I.P.C.\n<\/p>\n<p>2.     Informant-P.W.3 was the Block Development Officer (B.D.O.), Gurundia and the<br \/>\npetitioner was working as Police Constable in Gurundia Police Station during the period<br \/>\nof occurrence. Prosecution case is that on 23.11.1993 at about 9.30 P.M. P.W.3 heard<br \/>\nthat the petitioner was abusing him in a drunken state in filthy and obscene language<br \/>\nnear his home. When P.W.3 came out from the house and went near the Block Office<br \/>\ngate, the petitioner dragged him to the road, assaulted him, threw him on the road and<br \/>\ntried to throttle his neck. The petitioner also was asking for a Tangia. Some of the Block<br \/>\npersonnel intervened to bring the occurrence to an end. Finding the Officer-In-Charge<br \/>\nabsent from the Gurundia Police Station, P.W.3 submitted F.I.R. Ext.1 to Sub-Divisional<br \/>\n Police Officer (S.D.P.O.), Bonai. On being directed by the S.D.P.O., Bonai, Circle<br \/>\nInspector of Police, Bonai took up investigation and submitted final report stating the<br \/>\ncase to be mistake of law. In response to protest petition filed by P.W.3, enquiry under<br \/>\nSection 202 of the Cr.P.C. was conducted by the learned S.D.J.M., Bonai and<br \/>\ncognizance of offences under Sections 323, 294 and 506 of the I.P.C. was taken.<br \/>\nPetitioner took the plea of complete denial. In order to substantiate the case,<br \/>\nprosecution examined three witnesses and relied upon F.I.R. Ext.1. P.Ws.1 and 2 were<br \/>\noccurrence witnesses. On appraisal of evidence on record, learned S.D.J.M. convicted<br \/>\nand sentenced the petitioner as stated supra.\n<\/p>\n<p>3.     It was submitted by the learned counsel for the petitioner that from the very<br \/>\nbeginning the petitioner assailed his prosecution in the present case on the ground of<br \/>\nbar under Section 300 of the Cr.P.C. on the assertion that trial in the present case<br \/>\namounted to double jeopardy. It was submitted that on the basis of allegations arising<br \/>\nout of the self-same occurrence, the petitioner was tried for alleged commission of<br \/>\noffences under Sections 160, 341, 323, 324 and 294 of the I.P.C. and acquitted in G.R.<br \/>\nCase No.383 of 1993 in the court of learned S.D.J.M., Bonai. It was strenuously argued<br \/>\nthat both the learned Courts below failed to appreciate the embargo under Section 300<br \/>\nof the Cr.P.C. It was categorically admitted by the informant-P.W.3 himself in course of<br \/>\nhis cross-examination that G.R. Case No.383 of 1993 was also registered for the self-<br \/>\nsame       occurrence. It was further argued that non-examination of the Investigating<br \/>\nPolice Officer gravely prejudiced the petitioner. On completion of investigation, final<br \/>\nreport stating the case to be mistake of law was filed by the Investigating Police Officer<br \/>\non the ground that on the basis of allegations arising out of self-same occurrence<br \/>\nGurundia P.S. Case No.24 of 1993 had been registered prior to registration of the<br \/>\npresent case as Gurundia P.S. Case No.25 of 1993. Confusion, if any, which arose in<br \/>\nthe mind of both the learned Courts below regarding the cases to have arisen out of the<br \/>\nself-same occurrence would have been clarified by the Investigating Police Officer.\n<\/p>\n<p>4. In reply, it was submitted by the learned counsel for the State and learned counsel<br \/>\nfor the opposite party no.2-informant that both the learned Courts below have assigned<br \/>\ncogent reasons in support of their findings to the effect that facts and circumstances of<br \/>\nthe case do not attract application of provision under Section 300 of the Cr.P.C. It has<br \/>\nalso been concluded that non-examination of the Investigating Police Officer has not<br \/>\nbeen prejudicial to the petitioner.\n<\/p>\n<p>5.      The vital question raised in this revision is the applicability of bar under the<br \/>\nprovision under Section 300 of the Cr.P.C. against the proceeding in G.R. Case No.384<br \/>\nof 1993 in view of earlier judgment in G.R. Case No.383 of 1993. Section 300 of the<br \/>\nCr.P.C. reads:-\n<\/p>\n<blockquote><p>            &#8220;Person once convicted or acquitted not to be tried for same offence.-<br \/>\n        (1) A person who has once been tried by a Court of competent jurisdiction for an<br \/>\n        offence and convicted or acquitted of such offence shall, while such conviction or<br \/>\n        acquittal remains in force, not be liable to be tried again for the same offence,<br \/>\n        nor on the same facts for any other offence for which a different charge from the<br \/>\n        one made against him might have been made under sub-section(1) of section<br \/>\n        221, or for which he might have been convicted under sub-section (2) thereof.<br \/>\n        (2) A person acquitted or convicted of any offence may be afterwards tried, with<br \/>\n        the consent of the State Government, for any distinct offence for which a<br \/>\n        separate charge might have been made against him at the former trial under<br \/>\n        sub-section (1) of section 220.\n<\/p><\/blockquote>\n<blockquote><p>        (3) A person convicted of any offence constituted by any act causing<br \/>\n        consequences which, together with such act, constituted a different offence from<br \/>\n        that of which he was convicted, may be afterwards tried for such last-mentioned<br \/>\n        offence, if the consequences had not happened, or were not known to the Court<br \/>\n       to have happened, at the time when he was convicted.\n<\/p><\/blockquote>\n<blockquote><p>       (4) A person acquitted or convicted of any offence constituted by any acts may,<br \/>\n           notwithstanding such acquittal or conviction be subsequently charged with,<br \/>\n           and tried for, any other offence constituted by the same acts which he<br \/>\n           may have committed if the Court by which he was first tried was not<br \/>\n           competent to try the offence with which he is subsequently charged.<br \/>\n       (5) A person discharged under section 258 shall not be tried again for the same<br \/>\n       offence except with the consent of the Court by which he was discharged or of<br \/>\n       any other Court to which the first-mentioned Court is subordinate.<br \/>\n       (6) Nothing in this section shall affect the provisions of section 26 of the General<br \/>\n       Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.&#8221;\n<\/p><\/blockquote>\n<p>6.      Provision under Article 20 of the Constitution of India provides that no person<br \/>\nshall be prosecuted and punished for the self-same offence more than once. But<br \/>\nprovision under Sub-section (1) of Section 300 of the Cr.P.C. lays down that a person<br \/>\nonce convicted or acquitted cannot be tried for the same offence subject to exceptions<br \/>\nunder Sub-section (2) to (6) thereof.\n<\/p>\n<p>7.      In Maqbool Hussain -vrs.- State of Bombay : AIR 1953 SC 325, it was<br \/>\nobserved by the Hon&#8217;ble Supreme Court :\n<\/p>\n<blockquote><p>        &#8220;(7) The fundamental right which is guaranteed in Art.20(2) enunciates the<br \/>\n        principle of &#8220;autrefois convict&#8221; or &#8220;double jeopardy&#8221;. The roots of that principle<br \/>\n        are to be found in the well established rule of the common law of England &#8220;that<br \/>\n        where a person has been convicted of an offence by a Court of competent<br \/>\n        jurisdiction the conviction is a bar to all further criminal proceedings for the same<br \/>\n        offence&#8221;. (Per Charles J. in Reg. v. Miles (1890) 24 Q. B. D. 423 (A)). To the<br \/>\n        same effect is the ancient maxim &#8220;Nimo Bis Debet Puniri Pro Uno Delicto&#8221;, that<br \/>\n        is to say that no one ought to be twice punished for one offence or as it is<br \/>\n        sometimes written &#8220;Pro Eadem Causa&#8221; that is for the same cause.<br \/>\n        (8) This is the principle on which the party pursued has available to him the<br \/>\n        plea of &#8220;autrefois convict&#8221; or &#8220;autrefois acquit&#8221;.<\/p><\/blockquote>\n<p>        &#8220;The plea of &#8216;autrefois convict&#8217; or &#8220;autrefois acquit&#8221; avers that the defendant has<br \/>\nbeen previously convicted or acquitted on a charge for the same offence as that in<br \/>\nrespect of which he is arraigned&#8230;&#8230;.The question for the jury on the issue is whether<br \/>\nthe defendant has previously been in jeopardy in respect of the charge on which he is<br \/>\narraigned, for the rule of law is that a person must not be put in peril twice for the same<br \/>\noffence. The test is whether the former offence and the offence now charged have the<br \/>\nsame ingredients in the sense that the facts constituting the one are sufficient to justify a<br \/>\nconviction of the other, not that the facts relied on by the Crown are the same in the two<br \/>\ntrials. A plea of &#8220;autrefois acquit&#8221; is not proved unless it is shown that the verdict of<br \/>\nacquittal of the previous charge necessarily involves an acquittal of the latter&#8221;. (Vide<br \/>\nHalsbury&#8217;s Laws of England-Hailsham Edition-Vol.9, Pages 152 &amp; 153, Para.212.)<br \/>\n        (9). This principle found recognition in section 26 of the General Clauses Act,<br \/>\n        1897-\n<\/p>\n<p>                &#8220;Where an act or omission constitutes an offence under two or more<br \/>\n        enactments, then the offender shall be liable to be prosecuted and punished<br \/>\n        under either or any of those enactments but shall not be liable to be punished<br \/>\n        twice for the same offence&#8221;,<br \/>\n        and also in S.403 (1), Criminal P.C., 1898-\n<\/p>\n<p>                &#8220;A person who has been tried by a Court of competent jurisdiction for an<br \/>\n       offence and convicted or acquitted of such offence shall, while such conviction or<br \/>\n       acquittal remains in force, not be liable to be tried again for the same offence,<br \/>\n       nor on the same facts for any other offence for which a different charge from the<br \/>\n       one made against him might have been made under S.236, or for which he<br \/>\n       might have been convicted under S.237&#8243;.&#8221;\n<\/p>\n<p>8.      In Khartan and others -vrs.- State of Uttar Pradesh : AIR 1965 SC 83, it has<br \/>\nbeen held by the Hon&#8217;ble Supreme Court that a plea of autrefois acquit which is<br \/>\nstatutorily recognized in India under Section 403 of the Cr.P.C. (Section 300 of the new<br \/>\nCr.P.C.) arises when a person is tried again for the same offence or on the same facts<br \/>\nfor any other offence for which a different charge from the one made against him might<br \/>\nhave been made under Section 236 (Section 221(1) of the new Cr.P.C.) or for which he<br \/>\nmight have been convicted under Section 237 (Section 221 (2) of the new Cr.P.C.).\n<\/p>\n<p>9.      In Mohammad Safi -vrs.- The State of West Bengal : AIR 1966 SC 69, it has<br \/>\nbeen held by the Hon&#8217;ble Supreme Court that the provisions of Section 403 are based<br \/>\nupon the general principle of autrefois acquit recognized by the English Courts. The<br \/>\nprinciple upon which the right to plead autrefois acquit depends is that a man may not<br \/>\nbe put twice in jeopardy for the same offence. This principle is incorporated in Article 20<br \/>\nof the Constitution. In order that the bar in Section 403 (1) of the Cr.P.C. may apply it<br \/>\nmust be shown that a person has once been actually tried by a competent court for<br \/>\nsame offence charged in the second trial, or though not actually tried for he same<br \/>\noffence charged in the second trial, he could have been on the same facts charged with<br \/>\nit under Section 236 or convicted of it under Section 237 of the Cr.P.C.\n<\/p>\n<p>10. In Thakur Ram and others -vrs.- The State of Bihar : AIR<br \/>\n1966 SC 911, it has been held that the provisions under Section 403 (1)<br \/>\nof the old Cr.P.C. bars the trial of the person again not only for the same<br \/>\noffence but also for any other offence based on the same facts.\n<\/p>\n<p>11.     In Mukhtiar Ahmed Ansari -v.- State (N.C.T. of Delhi) : 2005 Crl.L.J. 2569 the<br \/>\nappellant and two others had earlier been charged for kidnapping in Sessions Case and<br \/>\nacquitted by Additional Sessions Judge. It was held by the Hon&#8217;ble Supreme Curt that<br \/>\nonce the appellant was acquitted in kidnapping case, the doctrine of autrefois acquit gets<br \/>\nattracted against his trial for kidnapping in the Designated Court under the Terrorists and<br \/>\nDisruptive Activities (Prevention) Act, 1987.\n<\/p>\n<p>12.     There is also rule of issue estoppel in a criminal trial. In Manipur<br \/>\nAdministration, Manipur -v.- Thokchom Bira Singh : AIR 1965 SC 87 it was held<br \/>\nthat the rule of issue estoppel in a criminal trial is that where an issue of fact has been<br \/>\ntried by a competent court on a former occasion and a finding has been reached in<br \/>\nfavour of an accused, such a finding would constitute an estoppel or res judicata against<br \/>\nthe prosecution, precluding the reception of evidence to disturb that finding of fact when<br \/>\nthe accused is tried subsequently even for a different offence which might be permitted<br \/>\nby the terms of Section 403 (2) of the Cr.P.C. (Section 300 (2) of the new Cr.P.C.). The<br \/>\nrule thus relates only to the admissibility of evidence which is designed to upset a<br \/>\nfinding of fact recorded by a competent court at a previous trial. The rule is not the same<br \/>\nas the plea of double jeopardy or autrefois acquit, but Section 403 of the Cr.P.C. does<br \/>\nnot preclude the applicability of this rule of issue estoppel.\n<\/p>\n<p>13.     In Ravinder Singh -vrs.- State of Haryana : AIR 1975 SC 856, it has been<br \/>\npointed out by the Hon&#8217;ble Supreme Court :\n<\/p>\n<blockquote><p>        &#8220;In order to invoke the rule of issue estoppel in a criminal trial, there is an issue<br \/>\n        estoppel, if it appears that the same point was determined in favour of an<br \/>\n        accused in a previous criminal trial which is brought in issue on a second<br \/>\n       criminal trial of the same accused. In order to invoke the rule of issue estoppel<br \/>\n       not only the parties in the two trials must be the same but also the fact-in-issue<br \/>\n       proved or not in the earlier trial must be identical with what is sought to be<br \/>\n       reagitated in the subsequent trial.&#8221;\n<\/p><\/blockquote>\n<p>14.     There is no dispute with regard to legal proposition that a person cannot be<br \/>\nexposed to double jeopardy in view of provision under Section 300 of the Cr.P.C.<br \/>\nHowever, it appears that both the Courts below came to a conclusion that allegations in<br \/>\nthe present case, i.e., in G.R. Case No.384 of 1993 and earlier G.R. Case No.383 of<br \/>\n1993 arose out of two occurrences. On perusal of materials on record it is found that the<br \/>\nfinding is contrary to evidence on record. P.W.3-informant has categorically admitted in<br \/>\nhis cross-examination that G.R. Case No.383 of 1993 was also registered by Gurundia<br \/>\nPolice for the self-same occurrence. He deposed:\n<\/p>\n<p>       &#8220;It is a fact that another police case G.R. 383\/93 was also<br \/>\n       registered by Gurundia Police for the same occurrence&#8221;.\n<\/p>\n<p>Thus, there is clear admission in unambiguous term that allegations in G.R. Case<br \/>\nNo.383 of 1993 corresponding to Gurundia P.S. Case No.24 of 1993 also related to the<br \/>\noccurrence in the present case.\n<\/p>\n<p>15.     In the final report submitted under Section 173 of the Cr.P.C. in the present case<br \/>\nit had been concluded:\n<\/p>\n<blockquote><p>            &#8220;During course of investigation when formal FIR was drawn up vide Gurundia<br \/>\n        P.S. Case No.25\/93, I found that on the same facts, date, hour of occurrence,<br \/>\n        spot, a case vide Gurundia P.S. Case No.24 dt.24-11-93 U\/s.<br \/>\n        160\/341\/323\/324\/294 IPC was registered and investigated by ASI, M.K.<br \/>\n        Chodhury, in the capacity of OIC, Gurundia P.S.<br \/>\n                 Under the above facts and circumstances after supervision and<br \/>\n         investigation of both the cases it was found that case no.24\/93 is a true one<br \/>\n         u\/s.160 IPC and both the accused persons C\/776 M.S. Nanda and Sri P.K.<br \/>\n         Das, Ex-B.D.O., Gurundia Block Office made themselves liable u\/s 160 IPC.&#8221;\n<\/p><\/blockquote>\n<p>16.     It appears from the judgment dated 20.1.2000 passed by the learned S.D.J.M.,<br \/>\nBonai in G.R. Case No.383 of 1993, i.e., Gurundia P.S. Case No.24 of 1993 and other<br \/>\nmaterials on record that in the said case for alleged occurrence which took place at<br \/>\nabout 10.00 P.M. on 23.11.1993, case was registered against petitioner as well as<br \/>\ninformant-P.W.3 for commission of offences under Sections 160, 341, 323, 324 and 294<br \/>\nI.P.C. Both of them faced trial, in course of which as many as seven witnesses were<br \/>\nexamined, and were acquitted. Allegation, in brief, in the said case was that on hearing<br \/>\nsome persons abusing him, P.W.3 came out from the Block campus by climbing over the<br \/>\nboundary gate and challenged as to why they were abusing him. During challenge, the<br \/>\ninformant-P.W.3 and petitioner caught hold of each other and rolled on the road. They<br \/>\nalso assaulted each other by fist blows and the informant bit petitioner&#8217;s left thumb.<br \/>\nThus, it is evident that occurrence took place on the public road near the Block gate at<br \/>\nabout 9.30 to 10.00 P.M. Therefore, on the face of clear admission made by P.W.3 that<br \/>\nG.R. Case No.383 of 1993 was also registered for the same occurrence, obviously, the<br \/>\npetitioner is found to have been already tried for offences and acquitted thereof on the<br \/>\nsame fact on the basis of which the present case was registered. In the present case,<br \/>\nthe petitioner faced prosecution of offences under Sections 341, 323 and 506 (II) of the<br \/>\nI.P.C. In the earlier trial in G.R. Case No.383 of 1993 also allegations were made of<br \/>\ncommission of offences under Sections 341 and 323 as well as 324 and 294 of the<br \/>\nI.P.C. Nature of allegations made in the present case as well as the earlier case reveals<br \/>\n that in the earlier case also charge under Section 506 (II) of the I.P.C. could have been<br \/>\nmade against the petitioner. Judgments passed by both the learned courts below<br \/>\nsuffered from non-consideration of fact involving both the cases more particularly in<br \/>\nG.R. Case No.383 of 1993, which resulted in a trial, barred under Section 300 (1) of the<br \/>\nCr.P.C.\n<\/p>\n<p>17.      It was rightly contended by the learned counsel for the petitioner that non-<br \/>\nexamination of Investigating Police Officer by the prosecution caused prejudice to the<br \/>\npetitioner. Had the Investigating Police Officer been examined, he could have certainly<br \/>\nunfolded the circumstance under which final report had been submitted in this case, as<br \/>\nmentioned supra at paragraph-15 of this judgment. However, the informant-P.W.3, who<br \/>\nalso faced trial in G.R. Case No.383 of 1993, has categorically admitted that both the<br \/>\ncases arose out of same occurrence. In view of such admission, the learned Courts<br \/>\nbelow committed illegality in not accepting the petitioner&#8217;s plea of bar against his trial in<br \/>\nthe present case in view of provision under Section 300(1) of the Cr.P.C. as well as the<br \/>\nrule of issue estoppel.\n<\/p>\n<p>18.      In view of above discussions, the revision is allowed. Impugned judgments<br \/>\ndated 31.8.2002 passed by learned Sessions Judge, Sundargarh in Criminal Appeal<br \/>\nNo.1\/21 of 2000 and dated 29.2.2000 passed by the learned S.D.J.M., Bonai in G.R.<br \/>\nCase No.384 of 1993 are set aside.\n<\/p>\n<p>                                                            Revision allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Orissa High Court Mitra Sankar Nanda vs Vrs on 5 May, 2010 B.K.PATEL, J. Criminal Revision No.252 of 2002 (Decided on 5.5.2010). MITRA SANKAR NANDA &#8230;&#8230;&#8230;&#8230;. Petitioner. .Vrs. STATE OF ORISSA &amp; ANR. &#8230;&#8230;&#8230;&#8230;.. Opp.Parties. CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) &#8211; SEC.300(1) For Petitioner &#8211; M\/s. D.K.Mishra, R.P.Mohapatra, D.Panda, S.K.Ratha &amp; R.K.Parida. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-187397","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Mitra Sankar Nanda vs Vrs on 5 May, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mitra-sankar-nanda-vs-vrs-on-5-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mitra Sankar Nanda vs Vrs on 5 May, 2010 - Free Judgements of Supreme Court &amp; 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