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2017 DIGILAW 767 (KER)

Biji Manikoth v. State of Kerala

2017-04-12

SUNIL THOMAS

body2017
ORDER : 1. The petitioner herein is the sole accused in CC No.1088/2012of the Judicial First Class Magistrate Court, III, Thrissur, for offences punishable under sections 279,338 and 304(A) IPC. 2. According to the prosecution, on 21/2/2012, while the accused was driving his car, it hit the victim, who, sustained serious injuries. He was rushed to the hospital and was treated there. Crime No.282/2012 was registered by Mannuthy police for offences punishable under sections 279, 337 and 338 IPC. After investigation, final report was laid on 31/3/2012. The case was taken cognizance as C.C No.580/2012. Pursuant to the summons issued, the petitioner herein appeared, charge was read over and he pleaded guilty on 25/6/2012. The court sentenced him with fine for offences punishable under sections 279,337 and 338 IPC. It is stated that fine was remitted by him on the same day. Subsequently, the victim died, allegedly due to the injuries that he had sustained in the accident. Hence, in Crime No.282/2012, further report was filed adding section 304(A) IPC and informing the court about the further investigation. After completion of investigation, final report was laid for offences punishable under sections 279,338 & section 304(A) of IPC. Cognizance was taken and the case is now pending as CC No.1088/2012 of the Judicial First Class Magistrate Court, III, and Thrissur. The petitioner has approached this Court to quash Annexure A-10 final report. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Examined the records. 4. Mr.Rohith, the learned counsel for the petitioner, who exhaustively referred to the judicial precedents on the legal issues involved, contended that the petitioner herein, who was found guilty of offences punishable under sections 279,337,338 IPC and sentenced, cannot be tried for the same offences even with the aid of newly added offence under section 304A IPC. It was contended that, such a prosecution was hit by section 300 Cr.P.C., read with Article 20(2) of the Constitution of India. It was contended that, such a prosecution was hit by section 300 Cr.P.C., read with Article 20(2) of the Constitution of India. It was contended by the learned counsel that, basis of the fundamental right guaranteed under Article 20(2) of the Constitution was the principle of autrefois convict, or “double jeopardy”, the root of which was to be found in the well established rule of the common Law that, where a person has been convicted for an offence by a court of competent jurisdiction, the conviction is a bar to all further proceedings for the same offence. The learned counsel contended that the maxim Nemo Debet Bis Puniri Pro Uno Delicto (no one can be punished twice for the same offence) is applicable to the facts of this case. It was further contended on facts that, the death of the victim did not occur as a consequence of the injury that he had sustained in the accident. 5. Learned counsel for the petitioner contended that, the prosecuting agency cannot initiate further prosecution contrary to the general principle of trial and the principle of double Jeopardy laid down in S.A.Venkatarman v. Union of India (AIR 1954 SC375), Maqbool Hussain v. State of Bombay(AIR 1953 SC325). State of Bombay v. S.L.Apte ( AIR 1961 SC 578 ), LeoRoy Frey v. The Superintendent District Jail, Amritsar ( 1958SCR 822) and Monica Bedi v. State of A.P. (2011 (1) SCC284). 6. The post mortem report reveals that the victim had died of Multpile organ damage. At the time of inquest, the witnesses have mentioned that the injured died of injuries sustained by him in a motor accident that occurred on 21/2/2012. Annexure-A10 is the final report submitted by the police alleging that the death was consequent to the injury sustained in the accident. The wound certificate indicated that, the victim had sustained fracture of right pelvis and a lacerated wound on the occipital scalp. The prosecution alleged that the injuries that the victim had sustained consequent to the road transport accident was the cause of his death and the present offence alleged against the accused under section 304AIPC was a distinct and separate offence which, arose as a consequence to the earlier offence, for which the accused had not faced prosecution. 7. The prosecution alleged that the injuries that the victim had sustained consequent to the road transport accident was the cause of his death and the present offence alleged against the accused under section 304AIPC was a distinct and separate offence which, arose as a consequence to the earlier offence, for which the accused had not faced prosecution. 7. Section 300 of Cr.P.C. enunciates the principle that a person once tried by the court of competent jurisdiction for an offence and convicted or acquitted of such offence, while such conviction or acquittal remains in force, shall not be liable to be tried again for the same offence. However, section 300(3) of Cr.P.C. operates as an exception to the principle of section 300Cr.P.C. To attract Section 300 (3) Cr.P.C, the facts and circumstances must specifically indicate a different kind of offence of which the accused could not have been tried or convicted in the first trial. Further, the second offence must be one which arose as a consequence to the act constituting the first offence and that, taken in combination should form a distinct and new offence. 8. The scope of section 300 of Cr.P.C. was considered in one of the earliest decision of Allahabad High Court in Emperor v. Sailani (1914 ILR 36ALL 4). In that case, the respondent along with another person was charged with certain offence in relation to the injury inflicted on another. The case was committed and accused were acquitted. Subsequently, the victim died and they were charged with offence under section 304 IPC. When the matter came up for committal proceedings, the learned Magistrate committed the co-accused of the respondent therein alone, holding that death was caused by the injury inflicted by the co accused and not by the injury inflicted by the respondent therein. The Sessions Court held that the respondent therein also should have been committed to the Sessions Court for trial of offence under section304 IPC. A revision was preferred by the State before the High Court. However, the Court dismissed it on a finding that the court below decided on a pure question of fact and reiterated the principle that the previous acquittal on a charge of causing simple hurt will not bar the further prosecution for offence under section304 IPC, if the death occurred as a consequence to the injury that was caused on the victim. 9. 9. In Ramekbai Tiwary v . Madan Mohan Tiwary and another (AIR 1967 Supreme Court 1156), the five Judge Bench of the Supreme Court had occasion to deal with section 403 ofCr.P.C.1898, which is corresponding to section 300 Cr.P.C.1973.Referring to the contention that in the light of acquittal of accused for offences under sections 326 and 338 IPC, there cannot be fresh prosecution for offence under section 307 IPC, the Supreme Court held that, section 403 (4) Cr.P.C empowered prosecution of a person acquitted for an offence constituted by any act, subsequently charged for any other offence constituted by the same act which he may have committed, if the court by which he was first tried was not competent to try the offence with which he was subsequently charged. 10. In Jayamoham v. State of Kerala ( 1981 KLT 372 ), thequestion whether acquittal of the accused in petty case charged forhaving driven a vehicle without a fitness certificate and driving licence, under Motor Vehicles Act will bar a trial for offence punishable under sections 279 & 304A for rash and negligent driving of the same vehicle, constituting the same act, was considered by this Court. Considering the scope of section 300Cr.P.C.,the learned Single Judge held that the principle of double jeopardy or autrefois convict/acquit is recognised in section 300 of the Code. Section 300 Cr.P.C. bars a second trial of the person once tried by a competent court for an offence and convicted or acquitted of such offence, for the same offence or on the same facts for any other offence, for which a charge different from the one made against him might have been made under sub section (1)of section 221 Cr.P.C. or for which he might have been convicted under sub section (2) of section 221Cr.P.C. It was held that the offences alleged in that case were those under sections 279 and304A IPC, which related to rash and negligent driving and the death of a human being, as a result of the said driving. The offences alleged in the Petty case were in relation to violation of certain provisions of Motor Vehicles Act only. Hence, it was held that Bar under section 300 Cr.P.C. will not apply. In the light of the above proposition of law, the contention of the learned counsel for the petitioner cannot be accepted. 11. The offences alleged in the Petty case were in relation to violation of certain provisions of Motor Vehicles Act only. Hence, it was held that Bar under section 300 Cr.P.C. will not apply. In the light of the above proposition of law, the contention of the learned counsel for the petitioner cannot be accepted. 11. Another contention set up by the learned counsel for the petitioner was that, the trial of the present case was barred by the principle of issue estoppel. It was contended that finding of fact by the court of competent jurisdiction will bar the trial of the same issue in a different proceeding. In Jay Mohan’s case(cited supra),this Court had occasion to consider the impact of the principle of issue estoppel also. It was held that the field of operation of Article 20(2) of the Constitution of India and section 300 of the Code were very much circumscribed by the limitations contained in the provisions. However, the principle of res judicata or issue estoppel in criminal cases operates in a wider field. Proof of an offence may involve proof of several conditions or ingredients. One or more such conditions or ingredients may be common to more than one offence. If in one trial, the existence or otherwise of a particular condition or ingredient has been decided by a court of competent jurisdiction, the parties in the trial of the other offence or offences cannot assert the existence or otherwise of the ingredient or the condition contrary to the decision in the other trial. It was held to be the result of the extension of the principle of res judicata to criminal cases. It was held that the finding in the earlier trial would constitute estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as a bar precluding the reception of evidence contrary to the finding of fact arrived at in the earlier trial, when the accused is tried subsequently even for a different offence and even though the second trial is not barredunder Article 20(2) of the Constitution of India or under Section300 of the Code. It was reiterated that, the plea of res judicata or issue estoppel was entirely different from the plea of double jeopardy or autrefois acquit. It was reiterated that, the plea of res judicata or issue estoppel was entirely different from the plea of double jeopardy or autrefois acquit. It was held that, the plea relates not to the inhibition of trial or conviction, but only relates to the admissibility of the evidence designed to upset a finding of fact recorded by a competent court on a previous trial. It was asserted that, this broader plea was available to the defence, even when the narrower plea of double jeopardy was not available. Consequently, it was held that when an issue of fact has been tried and decided by a competent court in a former trial in favour of the accused, it cannot be upset in a subsequent trial, even for a distinct offence. 12. The above principle was reiterated by this Court in K. Karunakaran v. Rajendran ( 1985 KLT 361 ). It was held therein that the principle of issue estoppel was based on the ground of public policy. It was different from the principle of double jeopardy or autrefois acquit. The learned Judge referred to the observation in Marz v .The Queen 96 C.L.R.62, where the court had held that “the law which gives effect to issue estoppel is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact”. It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against another. This Principle was approved by the Supreme Court in Manipur Administration v. Bira Singh(AIR 1965 SC87). Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against another. This Principle was approved by the Supreme Court in Manipur Administration v. Bira Singh(AIR 1965 SC87). In Lalta v. State of U.P. ( AIR 1970 SC 1381 ), the Apex Court went further and held that, a finding on a fact by a competent court in an earlier proceeding would operate as estoppel or res judicata against the prosecution, not as a bar to the trial and conviction for a different offence, but as precluding the reception of evidence to disturb that finding of fact, when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403 (present Section 300) of Code of Criminal Procedure. 13. Before the principle of issue estoppel can be applied, thequestion to be determined is whether in the subsequent case, facts as alleged, and sought to be established by the prosecution would-be contrary to the finding given on the basis of those facts in the previous proceedings. It would equally be relevant to find out whether the point of issue between the parties which was adjudicated upon was the same. It has been held that some of the ingredients of principle of res judicata would be common to the principle of issue estoppel as res judicata is itself estoppel by deed. To invoke issue estoppel not only the parties in the two trials must be the same but also the fact in issue proved in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial, as held in Ravinder Singh v. State of Haryana ( AIR 1975 SC 856 ),Manipur Administration v.T.Bira Singh (cited supra), Sankar Mahato v. State of Bihar( AIR 2002 SC 2857 ) and Chellappan v. State of Kerala (1995Crl.L.J. 150 (Ker.). The crux of the principle is that, when an issue of fact has been tried by a criminal court of competent jurisdiction, such a finding would constitute an estoppel in subsequent criminal proceeding between parties for a different and distinct offence, not as a bar to the trial, but as precluding the reception of evidence to disturb that finding, though the subsequent trial may be permissible under section 300 Cr.P.C. Evidently, the rule of issue estoppel is not the same as the plea of double jeopardy or autrefois convict/acquit, which prevents the trial of any offence. In principle, it only affects the admissibility of evidence, which is designed to upset a finding of fact recorded by a competent court at a previous trial. (T.Moosa v. Sub Inspector of Police (2006 (1) Ker LJ 3349(Ker.) Applying the above principle, finding of guilt on the charges proved/established in previous proceedings alone is precluded from being re adjudicated. This finding alone operates as a bar under section 300 Cr.P.C. and not even the correctness of the conclusion so arrived at. 14. The discussion of the above legal proposition lead to a conclusion that, the prosecution under section 304(A) in the present case is sustainable and the question of issue estoppel applies only to the limited extent with reference to the findings arrived at earlier proceedings under sections 279 (3), 337 and 338IPC. Definitely, the trial of the above offence and conviction on it is not possible. However, the finding alone to that extent will operate as issue estoppel and not beyond that. 15. It was further contended by the learned counsel for the petitioner that, even assuming that the above contentions are not sustainable, the second limb of section 300 Cr.P.C was applicable and hence further prosecution was not sustainable. It was pointed out by the learned counsel that the victim died on7/5/2012. The conviction of the accused in the prior proceeding for offence under section 379 Cr.P.C, was on 25/6/2012. The court had the knowledge and was aware of the death of the victim as evident from the records and hence section 300(3) Cr.P.C was attracted, contended the learned counsel. To substantiate it, learned counsel relied on Annexure A10(4) which is the charge sheet submitted in the present case. The court had the knowledge and was aware of the death of the victim as evident from the records and hence section 300(3) Cr.P.C was attracted, contended the learned counsel. To substantiate it, learned counsel relied on Annexure A10(4) which is the charge sheet submitted in the present case. It is true that there is a reference that consequent to the death of the victim, the matter was reported to the court by adding section 304A IPC. The case diary was produced by the learned Public Prosecutor, which was perused. It shows a report dated 8/5/2012 of the SI of police informing the death of the victim on 7/5/2012 and requesting the court to stop the further proceedings. The records do not indicate that this report was ever brought to the notice of the court below. No orders are seen passed by the court below. In fact, very fact that the accused had pleaded guilty in CC No. 580/2012 on25/6/2012 and accepted by the court below itself indicate that the court was not aware of the death of the victim. Hence, the second limb of section 300(3) Cr.P.C. will not aid the petitioner. 16. A recapitulation of the legal principles involved and the factual materials lead to the definite conclusion that the prosecution of the accused under section 304(A) Cr.P.C. is legally sustainable, subject to the question of issue covered by the principle of issue estoppel. However, this will not preclude the petitioner from raising all contentions before the court below. The Crl.M.C. is hence dismissed.