Jharkhand High Court
Nirbhay Kumar Shahbadi @ Nirbhay ... vs The State Of Jharkhand on 18 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1708 of 2011
1. Nirbhay Kumar Shahbadi @ Nirbhay Kumar
2. Nirmal Kumar
3. Abhay Kumar Shahbadi @ Abhay Kumar
4. Bimal Kumar
5. Raj Kumar Shahbadi @ Raj Kumar ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Sub-Inspector (Excise),
Flying Squad, Giridih. ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Rajesh Kumar, Advocate.
: Mr. Amit Kumar, Advocate.
: Mr. Manindra Kumar Sinha, Advocate.
For the State : Mr. Bishambhar Shastri, A.P.P.
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16/ 18.04.2023 Heard learned counsel for the parties.
2. This petition has been filed for quashing of the order dated
28.07.2011, passed by the learned District & Sessions Judge, Giridih, in
Criminal Revision No. 53 of 2011, whereby he has been pleased to
dismiss the said petition by way of affirming the order dated 13.05.2011,
passed by the learned Judicial Magistrate, 1st Class, Giridih, in connection
with Excise Case No. 233 of 1987 (T.R. No. 02 of 2011), at that time the
case was pending in the court of learned Judicial Magistrate, 1st Class,
Giridih [now the case has been transferred to the court of learned Special
Court for cases involving M.P.'s and M.L.A.'s at Dhanbad vide this court
memo No. 69/Apt. dated 12.02.2020].
3. Prior to present case, the FIR, being Giridih Town P.S. Case
No. 89 of 1987 corresponding to G.R. No. 731 of 1987 was instituted
against the petitioners.
4. The complaint case was filed stating therein that on
11.03.1987 a raid was conducted by the Income Tax authorities in the
residential house of the petitioners and all the business premises of the
petitioners including the Cinema hall of the petitioners namely Swarn
Chitra Mandir at Giridih. During the raid in Swarn Chitra Mandir which is
a Cinema hall, Income Tax authorities alleged that they have found foreign
liquors worth Rs. 11.00 lacs and odd from the generator room of the hall
and subsequently on the next date i.e. 12.03.1987 by another Income Tax
Office the said generator room was sealed after locking the said room and
they proceeded with keys of the room. It is further alleged that on
5.06.1987 the Income Tax officials revisited the premises and when they
opened the seal of the room, they alleged that the liquors kept there are
missing and accordingly a Police case was lodged on 5.06.1987 against
the petitioners under Section 406, 204 of the Indian Penal Code read with
Section 275A of the Income Tax Act and the said case was registered as
Giridih Town P.S. Case No. 89/87 corresponding to G,R. No. 731/87. The
said FIR was forwarded to the Excise Department, on the basis of which,
the Excise Department has also filed a complaint on 24.07.1987, which is
the subject matter of present petition.
5. Mr. Rajesh Kumar, learned counsel appearing for the
petitioners submits that in the first case, the petitioners have faced the trial
and they have been convicted, however, against the order of conviction,
the petitioners have moved before the learned appellate court in Criminal
Appeal No. 15 of 2008, in which, by judgment dated 29.08.2011, the
petitioners have been acquitted considering that all the important
witnesses have not come forward to give the evidence. He submits that for
the same allegation, the present complaint has been filed on the basis of
the FIR and this is the double jeopardy and in that view of the matter
Section 300 Cr.P.C. is attracted. He further submits that the learned
revisional court has not appreciated Section 300(1) in its right perspective.
On these grounds, learned counsel appearing for the petitioners submits
that the entire proceedings so far as these petitioners are concerned may
kindly be quashed.
6. On the other hand, Mr. Bishambhar Shastri, learned A.P.P.
appearing for the State submits that on the basis of Income Tax Raid, the
present complaint has been filed and the allegations in the present
complaint is different.
7. In view of such submissions of the parties, the court has gone
through the contents of the first FIR and the contents of the present
complaint, which is the subject matter of the present case and finds that
the complaint case was filed on the basis of search and seizure prepared by
Income Tax Department on 11.03.1987, the witness is also shown to be
same in column-6 of the present complaint. Apart from the allegations of
first FIR, nothing new has been stated in the present complaint and the
learned trial court has also held that admittedly, it is the fact that both the
cases, i.e. the present one and the Giridih Town P.S. Case No. 89 of 1987
are related to the raid made by the Income Tax Department on 11.03.1987,
in spite of that the learned court has held that Section 300 Cr.P.C. is not
coming into operation and the same was also affirmed by the revisional
court.
8. The contents of the first FIR clearly suggest that for the same
allegation, the present complaint has been filed. In the first FIR, the
petitioners have been convicted by the learned trial court, however, the
learned appellate court has acquitted them.
9. Section 300(1) of the Cr.P.C. speaks that a person once
convicted or acquitted not to be tried for the same offence. The said
Section reads as follows:-
"(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."
10. In view of the above, it is crystal clear that 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 states that no one can be
prosecuted and punished for the same offence more than once. Section
300(1) of Cr.P.C. states that no one can be tried and convicted for the same
offence or even for a different offence, but on the same facts. In the case in
hand the earlier FIR was on the same facts and on the same background,
the present complaint case has been filed and there is no difference on the
facts in both the cases, as such Section 300(1) Cr.P.C. applies.
11. Consequently, the prosecution arising out of Excise Case No.
233 of 1987 (T.R. No. 02 of 2011), at that time the case was pending in the
court of learned Judicial Magistrate, 1st Class, Giridih [now the case has
been transferred to the court of learned Special Court for cases involving
M.P.'s and M.L.A.'s at Dhanbad vide this court memo No. 69/Apt. dated
12.02.2020], are hereby, quashed. It is well settled that if injustice is done
even after the revision, the High Court can exercise the power under
Section 482 Cr.P.C.
12. In view of the above, this petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
