Full Judgment Text
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PETITIONER:
THE STATE OF MADHYA PRADESH
Vs.
RESPONDENT:
VEERESHWAR RAO AGNIHOTRY
DATE OF JUDGMENT:
05/04/1957
BENCH:
MENON, P. GOVINDA
BENCH:
MENON, P. GOVINDA
DAS, SUDHI RANJAN (CJ)
IMAM, SYED JAFFER
DAS, S.K.
SARKAR, A.K.
CITATION:
1957 AIR 592 1957 SCR 868
ACT:
Autrefois acquit--Trial for offences under s. 409 of the
Indian Penal Code and s. 5(2) of the Prevention of
Corruption Act--Acquittal of charge, under s. 5(2)--Whether
conviction under s. 409 barred--Code of Criminal Procedure
s. 403--Constitution of India Art. 20(2)--General Clauses
Act s. 26.
HEADNOTE:
The accused was tried by a Special Judge for offences
under s. 409 Of the Indian Penal Code and S. 5(2) of the
Prevention of Corruption Act. He was convicted under S. 409
but the judge held that the accused could not be tried under
s. 5(2) as there had been no investigation by a police
officer not below the rank of a Deputy Superintendent of
Police. Upon appeal by the accused against the conviction
under s. 409, the High Court applying the doctrine of
autrefois acquit held that the order of the judge in respect
of the charge under s. 5(2) was tantamount to an acquittal
for that offence and on the same facts no conviction could
be had under S. 409 :
Held, that the offences under S. 409 of the Indian Penal
Code and under S. 5(2) of the Prevention of Corruption Act
were distinct and separate and there could be no objection
to a trial and conviction under s. 469 even if the accused
had been acquitted under S. 5(2).
Om Prakash Gupta v. The State Of U.P., [1957] S.C.R. 423,
applied.
Section 403(1) of the Code of Criminal Procedure has no
application where there is only one trial for several
offences, of some of which the accused person is acquitted
though convicted of one. Article 20 of the Constitution
also does not apply where the accused had not already been,
tried: and acquitted for the same offence in an earlier
trial,
869
Where there are two alternate charges in the same trial, the
fact that the accused is acquitted of one of them will not
prevent the conviction on the other.
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
130 and 131 of 1954.
Appeals by special leave from the judgment and order dated
September 11, 1953, of the former Madhya Bharat High Court
in Appeals Nos. 42 and 43 of 1953.
Shiv Dayal and R. H. Dhebar, for the appellant.
B. C. Misra, amicus curiae, for the respondent.
1957. April 5. The Judgment of the Court was delivered by
GOVINDA MENON J.-The State of Madhya Bharat, G which after
November 1, 1956, had become merged in the present State of
Madhya Pradesh, had obtained special leave from this court
on April 11, 1954, to appeal against the judgment and order
of acquittal passed in favour of the respondent herein, by
the High Court of Judicature of Madhya Bharat on September
11, 1953, in two consolidated Criminal Appeals Nos. 42 and
43 of 1953, by the identical appellant before that court.
The question for decision in these two appeals is how far
the High Court was justified in ordering the acquittal.
The respondent herein was a Tax-Collector in the Municipal
Committee of Lashkar, Gwalior, and was prosecuted in the
court of the City Magistrate and Additional District
Magistrate, Lashkar, firstly by means of a challan dated
October 23, 1951, for offences under ss. 468, 477-A and 409
of the Indian Penal Code and s. 5 (2) of the Prevention of
Corruption Act II of 1947, in that he misappropriated a sum
of more than Rs. 7,000, entrusted to him in the capacity of
Tax Collector, and during the course of the said transaction
committed various offences. On July 4, 1952, a second
complaint was filed against him in the same court under the
identical sections for having misappropriated in 1950 a sum
of Rs. 3,500 in all under similar circumstances. While
these two complaints were pending in the trial court, on
July 28, 1952, the Criminal
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870
Law Amendment Act (Act No. 46 of 1952) came into force and
by s. 6 of that statute, the State Government was authorised
to appoint a Special Judge for the trial of an offence under
sub-s. (2) of s. 5 of the Prevention of Corruption Act 11 of
1947. Section 7 of the same statute laid down that
notwithstanding any. thing contained in the Criminal
Procedure Code, or any other law for the time being in
force, an offence under s. 5 (2) of the Prevention of
Corruption Act could be tried only by a Special Judge,
appointed under s. 6 of the Criminal Law Amendment Act.
Sub-cl. (b) of s. 7 laid down that when trying a case,
triable exclusively by a Special Judge under this statute,
he may also try any other offence with which the accused may
under the Code of Criminal Procedure, be charged at the same
trial. The last section of the Criminal Law Amendment Act
aforesaid provided that all cases triable by a Special Judge
under s. 7, which immediately :before the commencement of
the Act were pending before any Magistrate, shall on such
commencement be forwarded for trial to the Special Judge
having jurisdiction over such cases. In accordance with the
above-mentioned provisions of the statute, the cases pending
before the City Magistrate and Additional District
Magistrate, Lashkar, were transferred to a Special Judge
constituted for the purpose before whom they were numbered
as Case No. 3 of 1953 and No. 6 of 1953. After the
prosecution evidence was over, on March 10, 1953, the
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Special Judge framed charges under all the sections
complained against. By separate judgments dated June 5,
1953, the Special Judge found the respondent guilty of an
offence under s. 409 of the Indian Penal Code and sentenced
him to rigorous imprisonment for three years. He, however,
passed an order of acquittal under ss. 468 and 477-A, of the
Indian Penal Code. As regards the charge under s. 5 (2) of
Act II of 1947, the learned Special Judge was of the view
that since the provisions of sub.s. (4) of s. 5 of the
Prevention of Corruption Act to the effect that no police
officer below the rank of Deputy Superintendent of Police
shall investigate any offence punishable under sub-s. (2)
871
of s. 5 of the Prevention of Corruption Act without an order
of a 1st Class Magistrate, had not been complied with, the
foundation for preferring a complaint had not been
established and, therefore, there was an illegality which
affected the jurisdiction of the court to try the case, the
result being that the accused could not be tried for that
offence. Such being the case, no formal order of acquittal
was passed by the trial court.
Aggrieved by the convictions under s. 409 of the Indian
Penal Code, the respondent preferred two appeals to the High
Court of Madhya Bharat which were consolidated by that
court, and by a common judgment that court applying the
doctrine of autrefois acquit held that when once on the same
facts the trial Judge found that the respondent could not be
found guilty of an offence under s. 5 (2) of the Prevention
of Corruption Act, it was tantamount to an acquittal for
that offence in which case no conviction could be had under
s. 409 of the Indian Penal Code. The respondent was,
therefore, acquitted. As mentioned already, the State has
been granted special leave to appeal against the orders of
acquittal.
The correctness of the conclusion of the High Court has
been challenged in more ways than one by the appellant’s
counsel. Firstly, it is argued that the offence under s. 5
(2) of the Prevention of Corruption Act and that under s.
409 of the Indian Penal Code, are not the same, and such
being the case, granting that the order of the Special Judge
amounted to an acquittal under s. 5 (2) of the Prevention of
Corruption Act, still that would not bar the conviction of
the respondent under s. 409 of the Indian Penal Code.
Secondly, it is pointed out that when at the same trial
there are two alternative charges like those with which we
are now concerned, acquittal of the accused under one charge
is no impediment to his conviction on the other; and lastly
it is contended that any defect in the investigation would
not amount to an illegality which would invalidate the trial
and conviction if the proceedings culminate that way.
872
This court has recently held in Om Prakash Gupta v. The
State of U. P.(1), that the offence of criminal misconduct
punishable under s. 5 (2) of the Prevention of Corruption
Act II of 1947 is not identical in essence, import and
content with an offence under s. 409 of the Indian Penal
Code. The offence of criminal misconduct is a new offence
created by that enactment and it does not repeal by
implication or abrogate s. 409 of the Indian Penal Code. In
the common judgment in those appeals the conclusion has been
expressed in the following words:-
"Our conclusion, therefore, is that the offence created
under s. 5(1)(c) of the Prevention of Corruption Act is
distinct and separate from the one under S. 405 I.P.C. and,
therefore, there can be no question of s.5(1)(c) repealing
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s. 405 I.P.C."
In view of the above pronouncement, the view taken by the
learned Judge of the High Court that the two offences are
one and the same, is wrong, and if that is so, there can be
no objection to a trial and conviction under a. 409 of the
Indian Penal Code, even if the respondent has been acquitted
of an offence under s. 5(2) of the Prevention of Corruption
Act II of 1947. Section 403(1) of the Criminal Procedure
Code only prohibits a subsequent trial for the same offence,
or on the same facts for any other offence for which a
different charge from the one made against an accused person
might have been made under s. 236 of the Criminal Procedure
Code, or for which he might have been convicted under s. 237
when the earlier conviction or acquittal for such an offence
remains in force. It is obvious that s. 403(1) has no
application to the facts of the present case, where there
was only one trial for several offences, of some of which
the accused person was acquitted while being convicted of
one. On this ground alone the order of the High Court is
liable to be set aside. The High Court also relied on Art.
20 of the Constitution for the order of acquittal but that
Article cannot apply because the respondent was not
prosecuted after he had already been tried and acquitted for
the same offence in an earlier trial and, therefore, the
(1) [1957] S.C.R.423.
873
well-known maxim " Nemo debet bis vexari, si constat curice
quod sit pro una et eadem causa" (No man shall be twice
punished, if it appears to the court that it is for one and
the same cause) " embodied in Art. 20 cannot apply.
The next argument on behalf of the appellant is that where
there are two alternate charges in the same trial, the fact
that the accused is acquitted of one of them, will not
prevent the conviction on the other, is also well-founded.
Section 26 of the General Clauses Act can be called in aid
in support of this proposition. There is no question of
double jeopardy. Section 26 runs as follows:
"Provisions as to offences punishable under two or more
enactments: 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."
We are, therefore, of the opinion that the learned Judge’s
view on this aspect of the case is also unsound.
In view of what has been stated above, it is unnecessary
to deal with the last contention of the learned counsel for
the appellant except merely to state that the Special Judge
had jurisdiction to try the accused person under s. 7 of the
Prevention of Corruption Act, 1947.
The result is that the appeals succeed, the order of the
High Court acquitting the respondent of an offence under s.
409 of the Indian Penal Code is set aside and the appeals
are remanded to the High Court of Madhya Pradesh for re-
hearing on the merits.
874