Jharkhand High Court

Gautam Kumar @ Pachu vs The State Of Jharkhand on 10 May, 2023

                                                     1                   Cr.M.P. No. 1355 of 2014


                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 1355 of 2014
            Gautam Kumar @ Pachu                              ... Petitioner
                                           -Versus-
            The State of Jharkhand                            ... Opposite Party
                                             -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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            For the Petitioner        : Mr. A.S. Dayal, Advocate
            For the State             : Mr. Ashutosh Anand, A.A.G.-III
                                        Mr. Sunil Kumar Dubey, A.P.P.
                                             -----

06/10.05.2023     Heard Mr. A.S. Dayal, learned counsel for the petitioner and

Mr. Ashutosh Anand, learned counsel for the State.

2. This petition has been filed for quashing of entire criminal proceeding

as well as order taking cognizance dated 06.01.2009 passed by the learned

Chief Judicial Magistrate, Ranchi in Namkum P.S. Case No.04/07,

corresponding to G.R. Case No.48/07, pending in the court of the learned

Judicial Magistrate, Ranchi.

3. The FIR was registered alleging therein that patrolling party on

06.01.2007 received a secret information that one Sandeep Pradhan @

Thapa (since acquittal) disclosed the fact as to how the murder of Surendra

Rai took place at Saki Bar Restaurant. After information, the informant went

Saki Bar Restaurant with police party and thereafter they went near Dari

Kuana and arrested three persons i.e. two accused persons and one another

namely Rajesh Kumar, whose case has been split up later on. On search

from the person of Rajesh Kumar, on 9 mm pistol with six live cartridges

were recovered whereas from the possession and person of Sujeet Kumar,

one hand grenade was recovered from his pocket and one live cartridge of 9

mm and three mobile SIM, whereas from the person and possession of

Gautam Kumar @ Pachu, a mobile and some paper regarding tender was

recovered. The articles were recovered in presence of two independent

witnesses.

4. Mr. A.S. Dayal, learned counsel for the petitioner submits that the

case was investigated by the police and charge-sheet has been submitted

under Section 25(1)(b), 26 and 35 of the Arms Act on 28.03.2007 keeping

investigation pending under Section 3/4 of Explosive Substance Act. He

submits that after submission of the charge-sheet, the case was proceeded

and the petitioner was convicted. The said judgment was challenged by the

petitioner in Criminal Appeal No.127/12 and vide judgment and order dated

01.06.2012, the petitioner has been acquitted. He further submits that

supplementary charge-sheet under Section 3/4 of Explosive Substance Act

has been submitted on 26.12.2008. He submits that thereafter the learned

court has taken cognizance calling upon the petitioner to face trial. He

submits that this is a double jeopardy. He heavily relied upon Section 300(1)

Cr.P.C.. To buttress his argument, he relied upon the judgment passed by

the Patna High Court in Manoj Sah @ Manoj Prasad v. State of Bihar;

[2009 0 Supreme (Pat) 16]. He submits that in that view of the matter,

entire criminal proceedings may kindly be quashed.

5. On the other hand, Mr. Ashutosh Anand, learned A.A.G.-III appearing

for the State submits that first charge was triable by the learned Magistrate

and the learned Magistrate has convicted the petitioner and in appeal, the

petitioner has been acquitted. He submits that so far as Explosive

Substance Act is concerned, the investigation was conducted and

supplementary charge-sheet has been submitted and in that view of the

matter, the said case is required to be tried by the learned Sessions Judge

and that is why there is distinction particularly considering Sub-section (4)

of Section 300 Cr.P.C. To buttress this argument, he relied upon the

judgment passed by the Hon'ble Supreme Court in Sangeetaben

Mahendrabhai Patel v. State of Gujarat and another; [(2012) 7

SCC 621].

6. Paragraphs 15 and 23 of the said judgment are quoted herein below:

"15. The Constitution Bench of this Court in S.A. Venkataraman v. Union of India [AIR 1954 SC 375 : 1954 Cri LJ 993] explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20(2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted" and "punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must coexist in order that the operation of the clause may be attracted.

23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an 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 precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue."

7. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the materials on record including the

contents of the FIR and order taking cognizance. It is an admitted fact that

the petitioner was firstly charge-sheeted under Section 25(1)(b), 26 and 35

of the Arms Act and the said case was tried by the learned Judicial

Magistrate in which the petitioner was convicted and the conviction was

challenged in Criminal Appeal No.127/12, thereafter the petitioner has been

acquitted. The investigation with regard to Explosive Substance Act was

kept pending and subsequently supplementary charge-sheet has been

submitted on 26.12.2008 and pursuant thereto the learned court has taken

cognizance. Admittedly the first charge was triable by the learned Judicial

Magistrate and offence under Explosive Substance Act is triable by the

learned Sessions Judge. In these backgrounds, the Court has gone through

Sub-section (4) of Section 300 of Cr.P.C. For ready reference, Section 300

Cr.P.C. is quoted herein below:

"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 last mentioned 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 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 (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

(a) A is tried upon a charge of theft as a servant and aquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust.

(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.

(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.

(d) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within sub-section (3) of this section.

(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, robbery on the same facts.

(f) A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts."

8. In view of the above, the sole issue raised in this Cr.M.P. is with

regard to scope and application of doctrine of double jeopardy. The rule

against double jeopardy provides foundation for the pleas of autrefois acquit

and autrefois convict. The manifestation of this rule is to be found contained

in Section 300 Cr.P.C., Section 26 of the General Clauses Act and Section 71

of the I.P.C.

9. The Constitution Bench of the Hon'ble Supreme Court in S.A.

Venkataraman v. Union of India & Anr.; (AIR 1954 SC 375)

explained the scope of doctrine of double jeopardy, observing that in order

to attract the provisions of Article 20(2) of the Constitution, there must have

been both prosecution and punishment in respect of the same offence. The

words "prosecuted" and "punished" are to be taken not distributively so as

to mean prosecuted or punished. Both the factors must coexist in order that

the operation of the clause may be attracted.

10. Thus, the Court is required to find out whether for the same offence,

further trial is going or not. Admittedly, in the case in hand, first charge was

triable by the learned Judicial Magistrate and supplementary charge was

triable by the learned Sessions Judge and it cannot be said that the

petitioner is facing trial for the same charge. The issue in question was

against subject matter before the Hon'ble Supreme Court in State of

Jharkhand v. Lalu Prasad Yadav; [(2017) 8 SCC 1] wherein the

Hon'ble Supreme Court has explained Sections 220 and 221 of Cr.P.C. at

paragraphs 24 and 25 of the said judgment, which are quoted herein below:

"24. Section 300 refers to Sections 220 and 221 CrPC. No doubt it appears that a person who has been convicted or acquitted of the "same offence" cannot be tried again considering the aforesaid provisions. Section 220(1) provides that if one series of acts is so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Section 220(1) is extracted hereunder:

"220.Trial for more than one offence.--(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence."

25. Section 221(1) is applicable where it is doubtful what offence has been committed. When a single act or a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved would constitute, the accused may be charged with having committed all or any of such offences and such charges can be tried together."

11. The two aspects of doctrine of jeopardy viz. autrefois convict and

autrefois acquit was explained by the Hon'ble Supreme Court in Lalu Prasad

Yadav (supra) in paragraph 22 of the said judgment, which is quoted herein

below:

"22. Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once. This is called the doctrine of double jeopardy. The objective of the Article is to avoid harassment, which may be caused by successive criminal proceedings, where the person has committed only one crime. There is a law maxim related to

this, nemo debet bis vexari. This means that no man shall be put twice in peril for the same offence. There are two aspects of doctrine of jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means that the person has been previously convicted in respect of the same offence. Autrefois acquit means that the person has been acquitted on a same charge on which he is being prosecuted. The Constitution bars double punishment for the same offence. The conviction for such offence does not bar for subsequent trial and conviction for another offence and it does not matter even if some ingredients of these two offences are common."

12. Thus, the question of law involves in this Cr.M.P. is set at rest in view

of two judgments passed by the Hon'ble Supreme Court and the Court finds

that for same offence, the petitioner was not tried earlier and charge which

is subject matter of the present petition is triable by the learned Sessions

Judge, which is for another offence under Explosive Substance Act.