Narayana Pillai vs State Of Kerala

THE HONOURABLE MR. JUSTICE P.D.RAJAN

MONDAY, THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935

Crl.MC.No. 3826 of 2012 --------------------------- CRL.APPEAL NO.225/2010 OF ADDL.SESSIONS COURT, KOLLAM ..... CC NO.1168/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA ... CRIME NO.197/CR/2001 OF CRIME BRANCH CBCID UNIT, KOLLAM. ....

PETITIONER(S)/ACCUSED NO.5: ---------------------------------------------------- NARAYANA PILLAI, AGED 52 YEARS, S/O. RAMAKRISHNA PILLAI, PULLELI VEETIL, PADINJARENADA MURI, MAVELIKKARA VILLAGE, MAVELIKKARA TALUK.

BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.M.SUNILKUMAR SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL)

RESPONDENT(S)/COMPLAINANT: ------------------------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

*ADDL.R2 IMPLEADED:

R2. ANNIE RAJAN, W/O.RAJAN, KUMMEL HOUSE, MANJAKKALA,ADOOR, PATHANAMTHITTA.

(*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 19/12/2012 IN CRL.M.A.NKO.8248/2012)

R1 BY PUBLIC PROSECUTOR SMT. M.T. SHEEBA

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Kss Crl.M.C.No.3826/2012

APPENDIX

PETITIONER'S ANNEXURES:

ANNEX.A: COPY OF THE CHARGE SHEET FILED BEFORE THE HON'BLE CHIEF JUDICIAL MAGISTRATE, KOLLAM DTD. 14/07/2003.

ANNEX.B: COPY OF THE JUDGMENT IN CC NO.201/2006 OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE, KOLLAM DTD. 9/06/2010.

ANNEX.C: COPY OF THE FIR IN CRIME NO.761 OF 2000 OF ADOOR POLICE STATION DTD. 24/12/2000.

ANNEX.D: COPY OF THE REPORT DTD. 12/08/2002 OF THE DEPUTY SUPERINTENDENT OF POLICE CBCID POLICE, KOLLAM.

ANNEX.E: COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT OF POLICE, CBCID, DTD. 23/07/2003.

ANNEX.F: COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT OF POLICE, CBCID, KOLLAM DTD. 3/11/2003.

ANNEX.F1: COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT OF POLICE, CBCID, KOLLAM DTD. 3/11/2003.

ANNEX.G: COPY OF THE FINAL REPORT IN CARIME NO.197/CR/2001 OF CBCID UNIT, KOLLAM DTD. 19/05/2004.

ANNEX.H: COPY OF THE COURT CHARGE IN CC NO.168 OF 2004 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMKOTTA DTD. 6/09/2007.

RESPONDENT'S ANNEXURES: N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

"C.R." P.D. RAJAN, J. ------------------------------------------- Crl.M.C. No.3826 of 2012 ---------------------------------------------- Dated this the 3rd day of February, 2014

ORDER

This petition is preferred by the 5th accused in Crime

761/2000 of Adoor Police Station, which was registered for

offences punishable U/Ss.323, 341 420 r/w 34 IPC and re-

registered by CBCID, Kollam as Crime 197/CR/2001 Crime

Branch CID Unit, Kollam, praying that Annexure G final report

and Annexure-H charge framed in C.C.No.1168/2004 by the

Judicial First Class Magistrate Court, Sasthamkotta under S 120

(b), 119, 420 r/w 34 may be quashed by invoking the inherent

jurisdiction u/s.482 Cr.P.C. The petitioner contended that if the

trial is continued in this case, it amounts to double jeopardy

which is an abuse of process of Court.

2. The allegation against the accused in the above case

is that between September 1999 and 11.8.2000, A1 to A4

obtained Rs.22 lakhs from 2nd respondent making her believe that the Crl.M.C.No.3826/12 2

2nd accused is having gold treasure including a gold yam

which could be sold to her for a lesser price and collected

Rs.8,50,000 and Rs.2,75,000/-, from Cws 2 and 3, total

Rs.33,00,000/- and accused neither give the gold treasure as

promised nor returned the money and thereby committed the

offence. Petitioner being a Police officer did not prevent

the commission of offence by accused 2 to 4, in spite of the

information. For this second respondent filed a complaint

before the Judicial First Class Magistrate Court, Adoor, which

was sent over to Adoor Police for investigation u/s.156(3)

Cr.P.C., accordingly Crime 761/2000 of Adoor Police Station

was registered for offence u/s.420,323, 341 r/w 34 IPC.

Subsequently, the investigation was entrusted to Crime

Branch CID Unit, Kollam, they re-registered it as Crime

197/CR/2001 CBCID, Kollam and after completing

investigation, they filed Annexure-G final report.

3. The learned counsel for the petitioner contended

that the case pending before JFMC, Sasthamcotta is barred

by S.300 of Cr.P.C and under Sect.26 of the General Clauses

Act 1897 (herein after referred to as 'Act' for short) as the Crl.M.C.No.3826/12 3

petitioner was tried in crime 261/CR/2000 of CBCID, Kollam

(Crime 484/2000 of Adoor Police Station) relates to

C.C.No.201/2006 for offence punishable U/Ss.143, 149, 119,

120B and 420 IPC r/w 34 IPC for the same act and after trial,

he was acquitted for offences U/Ss.119, 143 & 149, but

convicted U/Ss.420 & 120B by the CJM Court, Kollam and on

appeal he was acquitted by the Sessions Court. If he is tried

in the second case, it amounts to double jeopardy, which is

against the mandatory provisions contained under Section

300 of Cr.P.C.

4. The learned Public Prosecutor contended that

earlier case, C.C.No.201/2006 was tried and disposed of by

CJM, Kollam, in which the defacto complainant was one

Akbar. In C.C.No.1168/2004 of JFCM Sasthamkotta, one

Annie Rajan is the defacto complainant and both cases were

charge sheeted for different offences. The petitioner was a

responsible officer to take action against the accused,

knowing it to be likely that they are committing the above

offence, he did not take action and helped them. Therefore,

these two incidents are distinct offences and committed at two Crl.M.C.No.3826/12 4

times. The application to club these two cases was dismissed

by the Hon'ble High Court in Crl.M.C.2372/2004. Therefore,

Section 300 of Cr.P.C is not applicable in this case and both

cases are to be tried separately and any interference at this

stage will affect the credibility of the prosecution case.

4. The Apex Court in Sangeetaben Mahendrabhai

patel v. State of Gujarat and another [(2012) 7 SCC 621]

held as follows:

"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 punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.

13. In Maqbool Hussain v. State of Bombay, [AIR 1953 SC 325: 1953 Crl. LJ 1432] the Constitution Bench of this Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the Customs Authorities and the gold seized from his possession was confiscated. Later on, a prosecution was Crl.M.C.No.3826/12 5

launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947 (hereinafter called "the FERA") read with the relevant notification. In the background of these facts, the plea of 'autrefois acquit' was raised seeking protection under Article 20(2) of the Constitution of India, 1950 (hereinafter called "the Constitution").

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 pnire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a 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 [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 Crl.M.C.No.3826/12 6

taken not distributively so as to mean prosecuted or punished. Both the factors must coexist in order that the operation of the clause may be attracted.

17. In Leo Roy Frey v. Supt. District Jail [AIR 1958 SC 119] proceedings were taken against certain persons in the first instance before the Customs Authorities under Section 167(8) of the Sea Customs Act and heavy personal penalties were imposed on them. Thereafter, they were charged for an offence under Section 120B IPC. This Court held that an offence under Section 120B IPC is not the same offence as that under the Sea Customs Act: (AIR p.121 para 4).

"4. ....... The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."

18. In State of Bombay v. S.L. Apte [AIR 1961 SC 578] the Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2) of the Constitution, held:

(AIR pp.581 & 583, paras 13 & 16) "13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for 'the same offence.' The crucial requirement therefore for attracting the article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, Crl.M.C.No.3826/12 7

necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out........

16. The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to 'the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence.' If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked."

19. In Roshan Lal v. State of Punjab [AIR 1965 SC 1413] the accused had caused disappearance of the evidence of two offences under Sections 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences under Section 201 IPC. It was held that neither Section 71 IPC nor Section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences under Section 201 IPC, t hough it would be appropriate not to pass two separate sentences. A similar view has been reiterated by this Court in Kharkan v. State of U.P.[AIR 1965 SC 83].

5. The main challenge in this petition is with regard to

the application of doctrine of double jeopardy. This maxim

guarantees the basic pleas of "autrefois acquit and autrefois Crl.M.C.No.3826/12 8

convict.", which is guaranteed U/s.300 of the Code of Criminal

Procedure. Section 300(1) reads as follows:

"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."

An analysis of Section 300 (1) will bring out that '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 to be tried again for the same

offence. The above section fully combines the principle

and explains in detail the impacts of the expression "same

offence". Six illustrations accompany this section

explaining in concrete terms the different situations which

the courts may have to deal with. In the explanation

portion "acquittal" has been explained in negative sense Crl.M.C.No.3826/12 9

by saying that the dismissal of a complaint, or the

discharge of an accused is not "acquittal" because both

are not considered as the final decisions regarding the

innocence of the accused person. The word "tried" in

Section 300(1) does not necessarily mean tried on the

merits. Compounding of an offence under Section 320, or

a withdrawal from the prosecution by the Public

Prosecutor under Section 321, would result in an acquittal

of the accused even though the accused is not tried on

merits. Such an acquittal would bar the trial of the

accused on the same facts on a subsequent complaint.

6. The plea of autrefois acquit and autrefois convict

are taken as a bar to criminal trial on the ground that the

accused person had been once already charged and tried

for the same alleged offence and was either acquitted or

convicted. These rules or pleas are based on the principle

that "a man may not be put twice in jeopardy for the same

offence." Article 20(2) of the Constitution recognises the Crl.M.C.No.3826/12 10

principle as a fundamental right. It says, "no person shall

be prosecuted and punished for the same offence more

than once." The revelation of this direction is found in

Section 26 of the General Clauses Act, 1897 and in S.71

of IPC as follows:

"26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes and 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."

Section 71 IPC reads as follows:

"71. Limit of punishment of offence made up of several offences- Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of is offences, unless it be so expressly provided."

7. Therefore a second prosecution after a full

fledged first trial for the same offence is barred under Art

20(2) of the Constitution. The fundamental right

guaranteed under Art.20(2) propound the principle of Crl.M.C.No.3826/12 11

'Autrefois convict' or 'double jeopardy' ie no person shall

be punished for the same offence more than once. This

doctrine is based on the ancient maxim Nemo debet bis

puniri pro uno delicto, that is, no one should be punished

twice for one fault. The fifth amendment of the American

Constitution provides inter alia "nor shall any person be

subjected for the same offence to be put twice in jeopardy

of life and limb." But the principle provided in another

maxim Nemo debet bit vexari pro eaden causa that is no

person should be vexed twice for the same offence or

same cause of action. The plea of Autrifois convict or

Autrefois acquit asserts that the previous conviction or

acquittal of a person on a charge is a bar for a second trial

for the same offence. Therefore, no person shall be

prosecuted or punished for the same offence more than

once.

8. It is clear from the facts of both cases that Crime

No.484/2000 of Adoor Police Station was registered on Crl.M.C.No.3826/12 12

11.8.2000 under Section 420 r/w 34 IPC against six persons

on a complaint filed by Akbar. Subsequently, the investigation

was entrusted to CBCID, Kollam and reregistered it as Crime

No.261/CR/2000 of CBCID, Kollam. The 3rd accused Annie

Rajan became an approver on 19.6.2000. After this on

18.9.2001, the petitioner was arrayed as Accused No.11 for

offence punishable under Section 119 of Cr.P.C. After

investigation, CBCID, Kollam filed final report on 14.11.2002

before the Judicial First Class Magistrate, Adoor, which was

numbered as C.C.No.785/2002. In the meantime, the case

was made over to Chief Judicial Magistrate, Pathanamthitta

and the case was numbered as C.C.No.473/2002. Again 4th

accused was included as approver and A3 and A4 in the

above case were deleted and they were declared as

accomplice in the above case. The CJM, Pathanamthitta

subsequently made over the case to JFMC Thiruvalla and

numbered as C.C.No..188/1996. From there, the case was

transferred to CJM, Kollam as per order dated 1.8.2006, in

Crl.M.C.No.573/2008 of the Hon'ble High Court, which was

renumbered as C.C.No.201/2006 of CJM, Kollam. Crl.M.C.No.3826/12 13

9. In C.C.No.1168/04 of JFCM Sasthamkotta, Smt.

Annie Rajan filed a complaint before JFCM, Adoor on

24.12.2000 against 8 persons, which was forwarded to Adoor

Police for investigation and Adoor Police registered Crime

No.761/2000 under Section 323,341, 420 r/w 34 IPC. This

case was also transferred to CBCID, Kollam, which was

renumbered as Crime No.197/CR/2001. During investigation,

offence under Section 323, 341 were deleted and Section

120B included by virtue of Annexure-E report. After

investigation, the petitioner was arrayed as A5 and final report

was filed before JFCM, Adoor, which was numbered as

C.C.No.514/20024. C.M.P.No.5001/2004 was filed for joint

trial and for clubbing the charges in both the cases, which

was rejected by CJM, Pathanamthitta. Against that order,

Crl.M.C.No.2372/2004 was preferred before this Court and

that request was rejected by this Court. Subsequently, by

virtue of order in Crl.M.C.No.78/2004 the case

C.C.No.514/2004 pending before JFCM, Adoor was

transferred to JFCM, Sasthamkotta. The facts and

allegations in both cases show that there are two different Crl.M.C.No.3826/12 14

incidents in two cases. The allegation in the second case was

that the petitioner had financial transaction with A2 in the

second crime and he participated in the criminal conspiracy

and thus committed the offence. There is no

allegation in the previous case that he received any amount

from anybody.

8. Now the short question is whether the two sets of

acts stated by the petitioner is different or the same. In the

first case, he was tried and convicted by the trial court but

later acquitted by the appellate court. In the second case,

which is pending before JFCM, Sasthamcotta, the allegation

is that the petitioner had financial transaction with the 2nd

accused, even after knowledge about the commission of

offence, he did not take any action against it but in the former

case there is no such allegations. Analysing the facts in two

cases, it is clear that Section 300 of Cr.P.C. is attracted only

when one person 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 Crl.M.C.No.3826/12 15

the same offence, nor on the same facts for any other offence

for which a different charge from the one made under sub-

Section (1) of Section 221 or for which he might have been

convicted under sub-section (2) thereof. If such a trial was

conducted, it will come within Section 300 of Cr.P.C. There is

no difficulty for trying the same accused for the offence for

which a different charge from the one made against him. The

principle discussed in Vijayalakshmi v. Vasudevan [1994(4) SCC

656] and State of Rajasthan v. Hat Singh and others [2003 (2)

SCC 152] are relevant. The crucial requirement for attracting

the basic rule is that the offences are the same and they

should be identical. Therefore, it is necessary to dissect and

compare not only the averments in the two complaints but

also the ingredients of the two offences and see whether their

identity is made out. Therefore, analysing the facts in this

case, it is clear that the facts alleged are different and distinct.

9. The inherent power under Section 482 Cr.P.C.

cannot be invoked naturally in a matter where it is covered by

a specific provision of the code. Therefore it means that if the Crl.M.C.No.3826/12 16

matter in question is not covered by any provision of the code,

it comes into operation, for the three purposes mentioned

therein. The inherent powers of the High Court contemplated

u/s 482 Cr.P.C. has to be exercised only for those grounds

mentioned in the Section, which cannot be invoked naturally

in a matter where it is covered by a specific provision of the

code. Inherent jurisdiction can be invoked to make such orders

necessary to "give effect to any order" under the code or to

prevent "abuse of the process" of any court or to secure "the

ends of justice". The Apex Court in the State of Haryana v.

Bhajanlal, [1992 SCC (Crl) 426] pointed out that: "where the

allegations made in the FIR or complaint are so absurd and

inherently improbable on the basis of which no prudent

person can ever reach a just conclusion that there is sufficient

ground for proceed against the accused, the proceedings are

liable to be quashed". Apex Court in Talab Haji Hussain v.

Madhukar Purushotham Mondker (AIR 1958 SC 376) held that the

inherent power contemplated under Section 482 Cr.P.Chas to

be exercised sparingly, carefully and with caution and only where Crl.M.C.No.3826/12 17

such exercise is justified by the test specifically laid down in

the section itself. Therefore, this is not a fit case for invoking

inherent powers under Section 482 Cr.P.C.

Hence, this Crl.M.C. is dismissed. The petitioner is at

liberty to take all defence in the trial court, untrammelled by

any observations made in this order.

P.D. RAJAN, JUDGE.

acd Crl.M.C.No.3826/12 18