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Jharkhand High Court · body

2016 DIGILAW 28 (JHR)

Avinash Topno v. State of Jharkhand

2016-01-05

RAVI NATH VERMA

body2016
Order : Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short ‘the Code’) the petitioner has questioned the legality of the continuation of entire criminal proceeding arising out of Rania P.S. Case No.03 of 2004 (S.T. No.772 of 2012) instituted under Sections 302/201/324/307/120B read with Section 34 of the Indian Penal Code and also prayed for quashing of the above proceeding on the ground that for the same set of facts and offences the petitioner has already been convicted by learned Additional Sessions Judge, Fast Track Court, Rourkela in Sessions Trial Case No.86/06/118 of 2005-09. 2. The factual aspect of the case which is based on the First Information Report of the informant-Anand Tiriya, in short, is that one Mangal Lakra is the owner of commander jeep bearing registration No.OR-09D-2937 and this informant alongwith one Pintu Munda were working as a Khalasi (cleaner) with the said Mangal Lakra and his uncle Dara Singh was working as a driver and one Navin Purty was also working as a cleaner in the said vehicle. On 09.01.2004, while his uncle Dara Singh parked the said vehicle in the courtyard in the evening at about 7.30 p.m., four persons came and wanted to reserve the vehicle as they had to go to TISCO Hospital at Joda. After finalization of the total fare, the informant alongwith Navin Purty and Pintu Munda @ Ganesh Bandra boarded the said vehicle with four persons and Navin Purty sat on the driving seat. When the vehicle reached near Kakarpani, the aforesaid four young men pointed out their knife on their necks and asked to stop the vehicle. Being frightened, Navin stopped the vehicle and dropped the key but he was assaulted by those young persons and after leaving Navin in injured condition, one person out of four started driving the vehicle. The four accused persons tied the hands of the informant and Pintu after taking liquor parked the vehicle at an unknown place. In the morning they again left the place. and after driving almost three hours, they entered into forest area and stopped the vehicle. The informant and Pintu Munda were directed to come down from the vehicle and on the edge of knife they were taken inside the dense forest and they assaulted them with knife and thereafter they fled away with the vehicle. and after driving almost three hours, they entered into forest area and stopped the vehicle. The informant and Pintu Munda were directed to come down from the vehicle and on the edge of knife they were taken inside the dense forest and they assaulted them with knife and thereafter they fled away with the vehicle. The said Pintu succumbed to his injuries though he was taken to hospital with the help of local persons. On the basis of the said fardbeyan of the informant, Rania P.S. Case No.03 of 2004 was instituted on 10.01.2004. 3. It appears from the record that for the same set of occurrence Koira P.S. Case No.02 dated 10.01.2004 was instituted in the State of Odisha. In the said case, after investigation the police submitted the charge sheet and the case was committed to the court of Sessions giving rise to S.T. Case No.86/06/118 of 2005-09. In the charge sheet submitted in the court of Rourkela, petitioner was made accused alongwith three other persons namely Mangal Munda, Benjamin Michel, Captain Sundhi and after trial by judgment dated 21st December, 2010 this petitioner and three others were found guilty under Sections 364/307/394/302/201/34 of the Indian Penal Code and sentenced to life imprisonment with fine. 4. In the present case, a supplementary counter affidavit sworn by D.S.P., H.Q, of Police at District, Khunti has been filed and in the said supplementary counter affidavit, the F.I.R. and the charge sheet submitted by the police have also been annexed and in the charge sheet details of F.I.R. is mentioned as follows:- (1) Abinas C. Hibausas Topno (2) Mangal Munda (3) Benjamin Michel and (4) Captain Sundhi hereby comes with Bhujali came to Mald and hired Commander Jeep no. OR-09D-2937 to Joda Hospital. On the way near Kokarpari bridge under Koira P.S. assaulted the driver by means of Bhujali on his head and thigh and attempted to murder him and demanded the key of the vehicle. The driver Nabin Arbind Purty could be survived by running through the jungle throwing the key. The accused persons took away the Jeep along with two friends of driver Nabin Arbind Purty namely Ganesh Bandra and Ananda Tiriya on the point of Bhujali. They abducted them to Saroo Ghati jungle to murder as they had rightly and clearly seen the accused persons. The accused persons took away the Jeep along with two friends of driver Nabin Arbind Purty namely Ganesh Bandra and Ananda Tiriya on the point of Bhujali. They abducted them to Saroo Ghati jungle to murder as they had rightly and clearly seen the accused persons. They assaulted both of them one after another several times on their head and neck until the body become motionless to murder them in course of disappearance of evidences. Considering them to be dead the accused persons left with the robbed Commander and went to one John Jinul Dhodray, one old acquaintance of Abinas Topno and kept the vehicle there for some days. Thereafter Abinas had taken the vehicle and by putting white colour over commander, had kept it near the home of his father-inlaw at Khunti and had kept the weapon of offence i.e. Bhujali concealed inside the bush in the back side of the home of his father-in-law at Khunti. Nabin Arbind Purty could be survived. Gagnesh bandra expired on the spot at saroo Ghati and Ananda Tiria could be survived due to prompt treatment by the help of Rania Police. On the report of Nabin Anand Purty Koira P.S. case no.02/04 under Sections 394/307 I.P.C. and on the statement of Ananda Tiria Rania P.S. Case No.03/04 u/s 302/307/324/120B/201/34 I.P.C. was registered. As both the cases in the business of same transaction and as there is connection of offence, after the death of Ganesh Bandra, the case no.12 of 2004 turned to Sections 364,302,307,394,201/34 I.P.C. Earlier a counter affidavit was filed on behalf of the State sworn by Inspector of Police, Torpa at Khunti and in Paragraph 13 it is stated that the occurrence arising out of Koira P.S. Case No.02 dated 10.01.2004 and Rania P.S. Case No.03 of 2004 instituted on 10.01.2004 are the same occurrence which has been intimated by the concerned Investigating Officer to the concerned court. 5. Mr. Manoj Tandon, learned counsel appearing for the petitioner submitted that the petitioner has already been convicted in connection with Koira P.S. Case No.02 of 2004 by a competent court, the continuation of proceeding for the same set of facts is completely barred under Section 300 of the Code and Article 20(2) of the Constitution of India. 5. Mr. Manoj Tandon, learned counsel appearing for the petitioner submitted that the petitioner has already been convicted in connection with Koira P.S. Case No.02 of 2004 by a competent court, the continuation of proceeding for the same set of facts is completely barred under Section 300 of the Code and Article 20(2) of the Constitution of India. It was also submitted that Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once, while Section 300 of the Code clearly imposes restriction that the person who once has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence. It was also submitted that in the instant case the police has submitted the charge sheet and now prosecution has sought to put the petitioner on trial which is not permissible under the law. 6. Learned counsel representing the State relying upon the counter affidavits fairly submitted that for the same set of offence and facts, the petitioner has already been convicted by a competent court of Odisa and so the present case is barred under the principles of Section 300 of the Code and under Article 20(2) of the Constitution of India. 7. Before I enter into the factual aspect of the case, I would like to refer Article 20(2) of the Constitution of India. Article 20(2) provides that no person shall be prosecuted and punished for the same set of offence more than once. To attract applicability of Article 20(2) there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict and this is commonly known as double jeopardy. The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. The rule provides foundation for the pleas of autrefois acquit and autrefois convict and this is commonly known as double jeopardy. The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. For better appreciation of the issue Article 20 of the Constitution of India and Section 300 of the Code are quoted hereinbelow:- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No persons shall be prosecuted and punished for the same offence more than once. (3) No persons accused of any offence shall be compelled to be a witness against himself. and Section 300 of the Code is quoted hereinbelow:- Section 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. (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 lastmentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (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 lastmentioned 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 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. 8. I have gone through the F.I.R. of Rania P.S. Case No.03 of 2004 and the F.I.R. as well as the charge sheet submitted in Koira P.S. Case No.02 of 2004 and also the judgment of conviction and order of sentence passed by a competent court which is annexed with the second supplementary affidavit filed by the petitioner as Annexure -5 and on perusal of the facts and allegation of both the cases it appears that for the same set of facts two cases were instituted one in Khunti and another in the District Sundergarh (Odisha) and in the case instituted in the District Sundargarh being Koira P.S. Case No.02 of 2004 subsequently after commitment numbered as Sessions Trial Case No.86/06/118 of 2005-09 this petitioner being one of the accused has already been convicted and sentenced to undergo rigorous imprisonment for life with fine. From bare reading of Sub section 1 of Section 300 of the Code, I find that it lays down the rule that a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence, he shall not be liable to be tried again for the same offence so long such conviction or acquittal remains in force. It means Sub section 1 of Section 300 becomes applicable when following pre-requisites exist:- (i) the accused must have been tried by a court of competent jurisdiction and (ii) the result of the trial should have been either conviction or an acquittal. 9. In the instant case, the aforesaid ingredients are present, as the petitioner had earlier been put on trial for the charges under the Indian Penal Code and has been convicted alongwith other accused persons. Under the above circumstance, the petitioner cannot be allowed to be put on trial again to face the charges under the same provisions of Indian Penal Code in which he has already been convicted. 10. In view of the discussions made above, the entire criminal proceeding of S.T. No.772 of 2012 arising out of Rania P.S. Case No.03 of 2004 pending in the court of learned Additional Judicial Commissioner-I, Khunti is, hereby, quashed. 11. In the result, this criminal miscellaneous petition is allowed.