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2008 DIGILAW 276 (CAL)

Khokan Das v. State

2008-03-06

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) Five accused persons, namely Biswajit Das, Khokan Das, Nepal Das, Smt. Maya Das and one Anil Kumar Das faced trial before the learned Additional Sessions Judge, Fast Track Court No. 1 at Barasat in S.T. No. 1(8) of 2005 corresponding to Sessions Case No. 12(7) of 2005 on certain allegations of facts which are as follows:- One Sujit Das, the principal accused who had remain absconded and could not be brought to trial with the aforesaid accused persons was a private tuitor to a minor girl. On 11th November, 2003 when the girl was on her way to school the accused Sujit Das had allegedly kidnapped the girl by enticement with the assistance of the other accused persons who faced the trial. The brother of the girl lodged a written complaint with Gopal Nagar Police Station on 15th January, 2003 and a case was registered against all the accused persons. Neither the girl, nor the principal accused Sujit could be traced out. Police submitted charge sheet against Sujit showing him as an absconder and as against the rest under Section 363/366/120B of the IPC. When the charge sheet was submitted the girl had remained untraced as yet and the defacto-complainant raised objection to the police report. Since the principal accused could not be apprehended the case was split and committed to the Court of Sessions, as a result of which the aforesaid five accused persons faced the trial on charges under Section 366/109/120 B of the IPC. Learned Trial Court upon recording of evidence of the witnesses recorded an order of acquittal of the said five accused persons of the said charges under Section 235(1) Cr.P.C. The judgment and order of acquittal was passed on 16th of January, 2006. (2.) After closure of trial of the aforesaid five persons the victim girl could be recovered and the accused Sujit Das was also arrested. A statement of the victim under Section 164 Cr.P.C. was recorded on 29th of December and upon investigation the police submitted a supplementary charge sheet on 09-02-2008 against the accused Sujit Das, Khokan Das and one Deepa Das under Section 363/366/120B and 376 of the IPC. A statement of the victim under Section 164 Cr.P.C. was recorded on 29th of December and upon investigation the police submitted a supplementary charge sheet on 09-02-2008 against the accused Sujit Das, Khokan Das and one Deepa Das under Section 363/366/120B and 376 of the IPC. (3.) The present petitioner is Khokan Das who was earlier acquitted in the trial on 16th January, 2006 of the charges under Section 366/109/120B IPC and he has filed this application to challenge his proposed second prosecution on the self-same charges. It is contended in the petition that since once he has been acquitted of the charge upon trial he cannot be asked to face another trial again on the self-same allegation of facts contrary to the provision of Section 300 Cr.P.C. which provides that where a person has been tried and acquitted of an offence arising out of a certain set of facts and when such acquittal remains in force he cannot be tried again in respect of the same offence based on the same facts; and asking the petitioner to face trial again would amount to gross abuse of the process of the court. In view of the bar provided in Section 300 Cr.P.C. the present petitioner deserves to be discharged from the case and cognizance taken by the learned Magistrate against the present petitioner was bad in law. (4.) Mr. Sourav Bhagat, learned advocate appearing for the petitioner in support of the petition takes me to the judgment of the learned trial court acquitting the present petitioner and others of the charges as aforesaid and submitted that there has been no new allegation of facts against the petitioner for which he could be prosecuted on the self-same offence. (5.) Mr. Sourav Bhagat, learned advocate appearing for the petitioner in support of the petition takes me to the judgment of the learned trial court acquitting the present petitioner and others of the charges as aforesaid and submitted that there has been no new allegation of facts against the petitioner for which he could be prosecuted on the self-same offence. (5.) Mr. Joy Sengupta, learned advocate appearing for the State of West Bengal submitted that when the supplementary charge sheet was submitted on 09-022009 the prosecution was quite aware of his acquittal along with four other accused persons of the charges under Section 366/109 IPC but subsequent to the order of acquittal when the victim could be traced out and the accused Sujit Das who had been an absconder since long could also be apprehended certain facts which did not come to light at the time of the trial of the accused persons could be made known and upon investigation it could be established through supplementary charge sheet that the petitioner Khokan Das and one Deepa Das were instrumental in assisting the principal accused Sujit Das in the matter of commission of rape and accordingly supplementary charge sheet has been submitted against Sujit Das, the petitioner and Smt. Deepa Das on the basis of the facts later discovered through investigation and through 164 Cr.P.C. statement of the victim. There was no scope of the prosecution being able to know the involvement of the petitioner and Smt. Deepa Das in the matter of alleged commission of rape by this accused Sujit Das, as a result of which supplementary charge sheet had to be submitted on the fresh set of facts and on fresh charge of abatement and conspiracy in the matter of commission of rape of the victim by the principal accused Sujit Das. (6.) Section 300 of the Cr.P.C. reads as follows:-"Person once convicted or acquitted not to be tried for same offence. (6.) Section 300 of the Cr.P.C. reads as follows:-"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 on 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 has 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 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. Explanation.The dismissal of a complaint, or the discharge of the accused is not an acquittal for the purposes of this section." (7.) Section 300 Cr.P.C. is an amplification of the well known doctrine that no person should be twice vexed for the same offence arising out of identical acts committed by him. Explanation.The dismissal of a complaint, or the discharge of the accused is not an acquittal for the purposes of this section." (7.) Section 300 Cr.P.C. is an amplification of the well known doctrine that no person should be twice vexed for the same offence arising out of identical acts committed by him. Both under Article 20(2) of the Constitution and Section 300 Cr.P.C. the second prosecution and the consequential punishment thereunder must be for the same offence. Sub-section (1) of Section 300 thus operates in the cases covered by Section 221(1) and 221(2) Cr. P.C. but will not operate in respect of the cases covered by Section 220(1). In Pritham Singhs case, AIR 1956 SC 412 it was held that where at a previous trial a finding has been given by a competent court on the innocence or guilt of the accused in his favour and the same question arises in a subsequent trial of the accused for a different offence the court must proceed with the second case accepting the finding of innocence as final and cannot admit evidence to dispute it. This proposition of law appears to be different from the proposition of law in the decision in Sekander Sheiks case reported in (1964) 1 Cr. L.J. 733 (SC) where it has been held that where the object of the evidence adduced at the second trial is merely to corroborate the charge in respect of the offence forming the subject matter of that trial and not to dispute the previous finding in favour of the accused, the fact that the same evidence was disbelieved at the previous trial for a different offence cannot bar the admissibility of this evidence in the second trial. The principle is that as is laid down in the decision an item of evidence may corroborate charges for more offences than one; but acquittal of the accused for one such offence will not render that item of evidence in admissible in assessing the criminality of the accused for another offence. Thus, to invoke the principle of issue estoppel any of the charges of the two trials must be the same, but also the fact-in-issue proved or not in the previous trial must be identical which is sought to be reagitated in the subsequent trial, but the principle of issue estoppel does not prevent the trial of the offence as does autrefois acquit. In one word, if there are two distinct and separate offences with different ingredients then there is no bar to subsequent trial of the offence which a person acquitted was not charged with. Thus, the question whether a particular trial is barred by reason of previous prosecution is a question to be determined on the facts and circumstances of a particular case. If in one series of acts so communicated together as to form the same transaction more than one offence are committed, the person so committing more than one offence may be charged with and tried at one trial for each such offence and sub-section (1) of Section 220 does not come within the mischief of Section 300 Cr.P.C. So far as the principal accused Sujit Das and another accused Deepa Das are concerned, there is no scope for them to agitate this point as they did not face the trial earlier. According to the prosecution some materials have transpired through the victims statement under Section 164 Cr.P.C. which could not be made known earlier and the facts revealed in the statement of the victim are facts which constitute a different offence and it is not that on the same set of facts as are now sought to be divulged at the trial the previous trial did not proceed with. (8.) In such circumstances, it is not thought appropriate and proper that the court should exercise its inherent jurisdiction to nip the prosecution in bud at its threshold. (9.) The application is dismissed with the direction to the learned trial court to proceed with the consideration of the charge against the three persons including the present petitioner. (10) Let a copy of the judgment shall be sent to the learned Additional Sessions Judge, Fast Track Court No. 1, Barasat for information and necessary action.