State vs Unknown
2023 Latest Caselaw 1215 UK

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                                  C482 No. 1902 of 2022
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Abhishek Verma, Advocate, for the applicant.

Mr. V.K. Gemini, Deputy A.G., with Mrs. Meena Bisht, Brief Holder, for the State of Uttarakhand.

The challenge in the present C-482 Application is to the Criminal Case No. 7 of 2021, State Vs. Akash and another, whereby, the present applicant has been summoned and charged to be tried under Section 2/3 of the U.P. Gangsters Act.

He submits, that the reason for imposition of the said offence under Section 2/3 of the Act, is because of his alleged involvement in the commission of the offence by way of Criminal Case No. 223 of 2019, under Sections 379 and 411 of the IPC and Criminal Case No. 228 of 2019, under Sections 457, 380 and 411 of the IPC.

He submits that in these two cases, he has been acquitted in Criminal Case No. 1452 of 2020, State Vs. Akash and others, by the judgement rendered by the Court of learned Chief Judicial Magistrate on 27th September, 2022. Similarly, in another matter, which has been shown in the gang chart, he has been acquitted by way of composition of offence under Section 320 of the Cr.P.C. by the National Lok Adalat, resulting into a closure of Criminal Case No. 2094 of 2020.

The learned counsel for the applicant submits, that the offence under Section 2/3 of the Gangsters Act, would not be made out now because in the two offences, which have been shown in the gang chart, since he has been acquitted, the said offences, would not be drawn against him, and in relation thereto, he has referred to one of the judgements as rendered by the Coordinate Bench of Allahabad High Court as reported in 2020 111 AllCriC 51, Sartaj Vs. State of U.P., whereby, too the Allahabad High Court, while exercising its power under Section 482 of the Cr.P.C. had observed, that once an accused person has been acquitted in relation to the offences on the basis of which Section 2/3 of the Gangsters Act, is attracted, in fact, he has been acquitted, no offence under Section 2/3 of the Gangsters Act, could be said to have been made out against him. The appropriate reason, which has been drawn therein by the Coordinate Bench of Allahabad High Court has been recorded in para 6 and 8, which is extracted hereunder :-

"6. Learned counsel for the applicant submits that the very basis of initiation of F.I.R. under Gangster Act was the statements recorded under Section 161 Cr.P.C. of case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act, Police Station Kotwali, District Meerut. Learned counsel submitted that said basis for initiation of F.I.R. under Gangster Act has been disbelieved by the trial Court as the applicant has been acquitted in the aforesaid crime, which acquittal order has not been challenged as yet. It is further contended that once very basis of initiation of Gangster's Act proceedings diminished, the entire trial procedure and rigmarole of proceedings of criminal trial under that Act will be nothing but only wastage of time of Court. The learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of Pritam Singh and another vs. State of Punjab, AIR, 1956 Supreme Court 415 in support of his contention that once the revisionist was acquitted by the competent court for the case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act, his trial under the provisions of Gangster Act would not be justified since the basis of implication in the case under the Gangsters Act was the case registered against the applicant in case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act. His contention is that his trial under the Gangster's Act would require trial regarding the same offence which was not found to have been proved by the trial court in the earlier case. He has relied upon the following observations of the Apex Court in the above mentioned case:-

"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial".

7.....

8. Reference to the Apex Court judgment in the case of Manipur Administration, Manipur vs. Thokchon Veere Singh, AIR 1965 (SC) 87 has also been made wherein paragraph 6 are as follows:-

Before referring to the decision of this Court in Pritam Singh v. State of Punjab(1) it would be convenient to refer to and put aside one point for clearing the ground. Section 403, Criminal Procedure Code embodies in statutory form the accepted English rule of autre fois acquit. This section is as follows:-

"403 (1) A person who has been once 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 offence for which a different charge from the one made against him might have been made under s. 236, or for which he might have been convicted under section 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1).

(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 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) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.

Explanation-The dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section." Section 26 of the General Clauses Act which is referred to in s. 403 enacts:

"26. 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."

We might also, in this connection, refer to Art. 20(2) of the Constitution since it makes provision for a bar against a second prosecution in an analogous case. That provision reads:

"20(2). No person shall be prosecuted and punished for the same offence more than once."

As has been pointed out by this Court in State of Bombay v. S. L. Apte, both in the case of Art. 20(2) of the Constitution as well as s. 26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder, must be for "same offence" i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the V Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle.

Owing to the above, the present C-482 Application would stand allowed, and as a consequence thereto, the proceedings of Criminal Case No. 7 of 2021, State Vs. Akash, would hereby stand quashed, so far it relates to the present applicant only.

(Sharad Kumar Sharma, J.) Dated 02.05.2023 Shiv