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2013 DIGILAW 1261 (PAT)

Md. Sakir Ansari @ Sakir Miyan v. State Of Bihar

2013-10-28

DINESH KUMAR SINGH

body2013
Order The present application has been filed for quashing of the order dated 27.01.2010 passed by learned 7th Addl. Sessions Judge, Bhagalpur in connection with Cr. Rev. No. 62 of 2007 whereby the learned Sessions Judge, refused to interfere with the order of cognizance and issuance of process dated 24.07.2006 for offences punishable under Sections 147, 148, 149, 448, 341, 323, 380, 307, 153 of the IPC and Section 3/4 of the Explosive Substances Act., passed by learned C.J.M., Banka, in connection with Belhar P.S. Case No. 11 of 1990 and disposed off the Criminal Revision application with liberty to the petitioner to raise the contention during trial. Hence, quashing of both the aforesaid orders have been prayed for. 2. The short issue involved in this case is whether the petitioner can be put to face trial again for the same offence for which he has already been acquitted and whether the pending proceeding is in derogation to proposition of law as provided under Article 20(2) of the Constitution of India and Section 300 of Criminal Procedure Code. 3. The prosecution case is that on 7.1.1990 at 7.00 p.m., 15-20 persons came variously armed, assaulted the informant, when the informant identified the accused persons in the flash light used by the accused persons themselves. Specific accusation has been levelled against Raju Mian to have assaulted the informant with dagger and Ibrahim Mian having assaulted with sword. It has also been alleged that explosives were also used and several persons sustained injury. Consequently, Belhar P.S. Case No. 11 of 1990 was registered on 18.01.1990 for offences punishable under Sections 147, 148, 149, 307, 341, 323, 324, 380, 307, 448 of the Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act, as contained in Annexure-1. 4. On conclusion of investigation, final form was submitted vide Final Form No. 29 dated 23.04.1990. The petitioner was not sent up for trial, but subsequently differing with the Final Form, cognizance was taken and processes were directed to be issued for offences punishable under Sections 147, 148, 149, 448, 341, 323, 380, 307 of the IPC and Section 3/4 of the Explosive Substances Act, against the petitioner and 13 absconding accused persons. 5. The case was committed to the Court of Sessions and charges were framed under Sections 148, 452, 380, 307 and 149 of the Indian Penal Code against the petitioner. 5. The case was committed to the Court of Sessions and charges were framed under Sections 148, 452, 380, 307 and 149 of the Indian Penal Code against the petitioner. 6. During the trial only two witnesses, namely, Kailash Thakur, P.W. 1 (the informant) and P.W. 2-Krishna Mohan Sah were examined. P.W. 1 neither named the petitioner nor identified him in the dock and specifically stated that petitioner was not present at the place of occurrence. P.W. 2 proved the First Information Report, hence deposed only as a formal witness. 7. Consequently, the petitioner was acquitted of the charges vide order and judgment dated 31.03.2009 passed by learned 2nd Additional Sessions Judge, Banka, in Sessions Trial No. 605 of 1993, as contained in “Annexure – 4”. 8. The Superintendent of Police, Banka, filed an application in Belhar P.S. Case No. 11 of 1990 for reinvestigating the case, after 7 years having passed since the petitioner?s acquittal and the learned C.J.M., Banka, vide order dated 13.04.2006 granted such permission for reinvestigation. The said order has been brought on record as Annexure-5. 9. The order of reinvestigation passed by learned C.J.M., dated 13.04.2006, does not reflect that learned C.J.M., was even aware of the fact that in the case under consideration, the trial had already been concluded 7 years prior to the passing of the order for reinvestigation. Moreover the order was passed in complete contravention to Section 173(8) of the Cr.P.C. which permits only further investigation and not reinvestigation. 10. On conclusion of reinvestigation, Charge sheet was submitted under Sections 147, 148, 149, 341, 323, 380, 448 of the Indian Penal Code vide Charge Sheet no. 68 of 2006 on 24.07.2006, against 4 accused persons including the petitioner. But the final form which has been brought on record as Annexure-6, reflects that the reinvestigation, conducted on the direction of Superintendent of Police, was done in a very perfunctory manner. 11. Subsequently, vide order dated 24.07.2006 learned C.J.M., Banka, directed for issuance of process after cognizance being taken in Belhar P.S. Case No. 11 of 1990 under Sections 147, 148, 149, 448, 341, 323, 380, 307, 153(A) I.P.C. and Sections 3/4 of Explosive Substances Act. 11. Subsequently, vide order dated 24.07.2006 learned C.J.M., Banka, directed for issuance of process after cognizance being taken in Belhar P.S. Case No. 11 of 1990 under Sections 147, 148, 149, 448, 341, 323, 380, 307, 153(A) I.P.C. and Sections 3/4 of Explosive Substances Act. The order dated 24.07.2006 passed by learned C.J.M., Banka, also does not reflect that learned C.J.M., bothered to look into the records, or tried to acknowledge himself with the fact that the trial had already concluded and the petitioner was acquitted thereto, but mechanically on the basis of the final form, the processes were directed to be issued as it has been recorded that the petitioner is on bail, little realizing that the petitioner was acquitted 7 years prior to the passing of the order dated 24.07.2006. 12. The petitioner filed a petition on 20.02.2007 for recall of the order of issuance of process dated 24.07.2006 on the ground that the petitioner has already been acquitted, but the learned C.J.M., rejected the application on 21.02.2007. Thereafter, the petitioner filed Criminal Revision Application no. 62 of 2007 before learned Sessions Judge, Bhagalpur, against the order dated 21.02.2007 passed by learned C.J.M. The Criminal Revision application was disposed off by learned 7th Additional Sessions Judge, Bhagalpur, with a liberty to the petitioner to raise the contention before the trial court. Hence, the present quashing application. 13. This is not at all in dispute that for the same offence or for the same charge, the petitioner had already been acquitted. Article 20(2) of the Constitution of India, Section 300 of the Cr.P.C. and Section 26 of the General Clauses Act, embody a protection against 2nd trial for the same offence. There is difference between the language used under Article 20(2) of the Constitution of India and Section 300(1) of the Code of Criminal Procedure, which reads as under:- “Article 20 of the Constitution of India. Protection in respect of conviction for offences – (1)….. (2) No person shall be prosecuted and punished for the same offence more than once.” “Section 300 of the Cr. Protection in respect of conviction for offences – (1)….. (2) No person shall be prosecuted and punished for the same offence more than once.” “Section 300 of the Cr. P.C. 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.” “Section 26 of the General Clauses Act. Provision as to offences punishable under two or more enactments – 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.” 14. Thus it can be seen that the scope and ambit of Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution of India. While Article 20(2) of the Constitution of India only provides that no one can be prosecuted and punished for the same offence more than once, Section 300(1) Cr.P.C. states that no one can be tried once convicted or acquitted for same offence or even for different offence, but on the same fact. 15. The Apex Court in the case of Makbul Hussain Vs. State of Bombay, reported in AIR 1953 SC 325 , has explained the scope of the fundamental right guaranteed under Article 20(2) of the Constitution of India in paragraph no. 11 as follows:- “11. …….. within its scope the plea of “autrefois convict” as known to the British jurisprudence or the plea of double jeopardy as (it) known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.” 16. Thus for invoking the protection as guaranteed Under Article 20(2) of the Constitution of India, there must have been a prosecution as well as conviction or acquittal for the same offence before a Court of law of competent jurisdiction or a Tribunal, required by law to decide the matter in controversy judicially on evidence. The proceedings contemplated therein are in the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of the proceedings of a criminal nature in accordance with the procedure prescribed in the Statute which creates the offence and regulates the procedure. 17. In Halsbury’s Laws of England, 2nd Edn., Vol. 9 the law has been succinctly summarized the question of double jeopardy, in following terms:- “If the defendant pleads autrefois convict or autrefois acquit, the prosecution replies or demurs. If the prosecution replies, which is the usual course, a jury is sworn to try the issues(x). The onus of proving the plea is on the defendant (a). he may prove it by producing a certified copy of the record or proceedings of the alleged previous conviction or acquittal (b), and showing by such copy or by other evidence, if necessary, that he has been convicted or acquitted of the same, or practically the same, offence as that on which he has been arraigned (c), or that he might on his former trial have been convicted of the offence on which he has been arraigned (d). 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 (e), 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 (f).” 18. 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 (f).” 18. It is a settled law that in order to attract the provision of Article 20(2) of the Constitution of India or Section 300 Cr.P.C. or Section 71 of I.P.C or Section 26 of the General Clauses Act, the ingredients of the offence in the earlier case as well as in the later case must be same and not different. This has been summarized by the Apex Court in the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujrat and Ors. AIR 2012 SC 2844 (Paragraph 24), which reads as under:- “24. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal is the previous charge necessarily involves an acquittal of the latter charge.” 19. In the present case, the petitioner has not only been sought to be tried for the same offence, but even the facts and ingredients of the case are one and the same i.e. Belhar P.S. Case No. 11 of 1990, where the petitioner has been sought to be tried again, due to the mechanical approach of the concerned S.P., who filed the application for reinvestigation by mis-appreciating the provision of Section 173(8) of the Code of Criminal Procedure which permits only further investigation and not reinvestigation and consequently, the learned Magistrate ordered for reinvestigation, who also failed to appreciate that such order cannot be passed after the conclusion of trial. 20. 20. Hence, the further prosecution of the petitioner for the same offence/same incident, for which he was acquitted several years prior to the submission of the second charge sheet, is hit by the provision of Section 300(1) Cr.P.C. and Article 20(2) of the Constitution of India. The issue has also been reiterated by the Apex Court in Kolla Veera Raghav Rao Vs. Gorantla Venkateshwar Rao & Anr., reported in AIR 2011 SC 641 . 21. In view of aforesaid discussion, the entire prosecution of Belhar P.S. Case No. 11 of 1990, so far as it relates to the petitioner including the order of cognizance dated 24.07.2006 passed by learned C.J.M., Banka and the order dated 27.01.2010 passed by 7th Addl. Sessions Judge, Bhagalpur in Cr. Revision No. 62 of 2007 are hereby quashed. 22. Accordingly the application is allowed.