Salwinder Singh vs State Of Punjab
- Court
- Punjab and Haryana High Court
CRM-M-17205-2021 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
150
CRM-M-17205-2021 (O&M)
Date of decision : 31.08.2026
Salwinder Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. H. S. Randhawa, Advocate
for the petitioner.
Ms. Ruchika Sabherwal, Sr. DAG, Punjab.
Mr. Ankur Jain, Advocate
for respondents No. 2 to 4.
MANISHA BATRA, J. (Oral)
1. The present petition has been filed under Section 482 of the Code
of Criminal Procedure (for short ‘Cr.P.C.) seeking quashing of order dated
25.03.2021 (Annexure P-5) passed by the Court of learned Additional Sessions
Judge, Tarn Taran in case arising out of FIR No.151 dated 12.10.2014,
registered at Police Station Sarhali, District Tarn Taran, under Sections 302,
201, 120-B, 148 and 149 IPC, whereby the application moved by the petitioner
seeking summoning of respondents No.2 to 4 to face trial along with the other
accused was dismissed. The petitioner has further prayed that the said
application be allowed and respondents No.2 to 4 be summoned to face trial in
accordance with the supplementary report submitted pursuant to the re-
investigation ordered by this Court.
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2. Brief facts of the case relevant for the purpose of disposal of this
petition are that the aforementioned FIR was registered on the basis of the
statement recorded by the petitioner/complainant Salwinder Singh alleging
therein that he was an agriculturist and had one son, namely, Gurjant Singh,
aged about 21 years, besides five daughters. On 12.10.2014, he, his son Gurjant
Singh, his servant Swaran Singh and his brother-in-law's son Satnam Singh had
gone to Grain Market, Sarhali, where their paddy crop had been brought. As the
paddy had not been auctioned, they put a tarpaulin over the heap and thereafter
proceeded towards their farmhouse on motorcycles. His son Gurjant Singh was
driving a motorcycle bearing registration number PB-46-L-7159, on which
Swaran Singh was sitting as pillion, whereas the petitioner was sitting on the
pillion of the motorcycle being driven by Satnam Singh. They left the Grain
Market at about 6:30 p.m., with Gurjant Singh and Swaran Singh ahead of the
petitioner and Satnam Singh. When they were about 200 yards short of the GT
Road at about 7:00 p.m., the petitioner saw Balbir Singh armed with a rifle;
Jarmanjit Singh armed with a kirpan; Stalinjit Singh armed with a datar; Uday
Singh armed with a datar; Gurdev Singh armed with a datar; Gurcharan Singh
armed with a datar; Chamkaur Singh armed with a kirpan and Sukhraj Singh
armed with a datar along with about 78 other persons armed with datars and
kirpans, standing on the road. The complainant further alleged that on seeing
Gurjant Singh on the motorcycle, Balbir Singh raised a lalkara asking others to
catch him and teach him a lesson for having quarrelled with them. On hearing
the lalkara, Jarmanjit Singh, Stalinjit Singh, Uday Singh, Gurdev Singh,
Gurcharan Singh, Chamkaur Singh, Sukhraj Singh and the unidentified persons
started causing injuries to Gurjant Singh. The petitioner and Satnam Singh, out
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of fear, stepped back and raised an alarm. Thereupon, the assailants fled
towards Harike on the GT Road via Canal Minor Bridge Khara in cars and
motorcycles, carrying their weapons. The petitioner and Satnam Singh then
proceeded towards the place of occurrence and found Swaran Singh lying
injured on the road and Gurjant Singh lying in the paddy field near the road
with numerous injuries. Gurjant Singh died at the spot. The petitioner called his
brother-in-law Sukhdev Singh and his son-in-law Dogar Singh. The police
station was telephonically informed about the incident. The petitioner stated
that there had been an earlier dispute between his son and the assailants and
alleged that all the accused, in furtherance of their common intention, had
murdered his son by causing injuries to him.
3. After registration of the FIR, investigation proceedings were
initiated. Accused/respondents No. 2 and 3, namely Stalinjit Singh and Gurdev
Singh, were arrested on 12.12.2014. Proceedings for declaring the remaining
accused as proclaimed offenders were initiated. An application was also
submitted by the father of respondent No.4-Gurcharan Singh alleging that
Gurcharan Singh had been falsely implicated on account of enmity. The DSP,
Sub-Division Patti, conducted an inquiry and found Gurcharan Singh innocent.
The said report was forwarded to the SSP, Tarn Taran, who agreed with the
same. In the meantime, however, Gurcharan Singh was summoned by the
learned Court as additional accused under Section 319 Cr.P.C.
4. On 19.01.2015, co-accused Balbir Singh, Jarmanjit Singh,
Chamkaur Singh, Uday Singh and Sukhraj Singh were declared proclaimed
persons by the Court of learned Judicial Magistrate First Class, Tarn Taran.
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Thereafter, on 21.01.2015, challan qua other accused was presented before the
learned Court on 12.02.2015.
5. In the meantime, the petitioner had approached this Court by filing
a petition bearing number CRM-M-41639-2014 , complaining, inter alia,
regarding the investigation, arrest of the accused and protection of himself and
his family members. Initially, on 22.09.2016, this Court disposed of the said
petition with a direction for an inquiry by the Inspector General of Police,
Crime, Punjab, within 45 days, and stayed the proceedings during the
subsistence of the inquiry. As the petitioner alleged non-compliance with the
aforesaid directions, he filed CRM-30012-2017 seeking modification/recalling
of the earlier order. The concerned Inspector General of Police, Crime, Punjab,
was summoned by this Court. On 18.12.2017, the said Officer appeared before
this Court and made certain statements regarding the inquiry and the status of
the proclaimed offenders. The petitioner subsequently produced material before
this Court which, according to him, contradicted the stand taken by the officer.
This Court passed further orders on 08.02.2018 and 22.02.2018, requiring the
State to verify the material and furnish the necessary information.
6. Thereafter, on 27.03.2018, this Court declared the status report
submitted by the police to be non-est in law and directed that the trial be
proceeded with on the basis of the final report submitted by the investigating
agency. The Court also directed expeditious conclusion of the trial. Thereafter,
on 06.04.2018, an FIR bearing No.36 was registered at Police Station Sarhali
under Sections 307, 341, 148 and 149 IPC and Sections 25/27 of the Arms Act
against the petitioner and others. Alleging that the said FIR was a result of mala
fide and pressure tactics, the petitioner approached this Court by filing
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CRM-M-19771-2018 , in which notice of motion was issued and the State was
directed to file a status report, vide order dated 10.05.2018. The petitioner also
filed another petition bearing number CRM-M-23160-2018 alleging threats to
himself and his family and pressure upon the petitioner and witnesses for
compromising the murder case. On 29.05.2018, this Court directed the SSP,
Tarn Taran, to ensure the safety of the petitioner and his family and further
directed the trial Court to record the statements of the eye-witnesses on the next
date positively.
7. The matter thereafter came up before this Court on 31.07.2018.
This Court, in the presence of the learned State counsel and the police officer
assisting the State, directed that, in the circumstances, the passing of the final
judgment by the trial Court would remain stayed till the next date of hearing.
The matter was adjourned to 05.09.2018. However, despite the aforesaid order,
the learned trial Court proceeded with the matter and on 04.08.2018, acquitted
respondents No. 2 to 4, Gurdev Singh, Stalinjit Singh and Gurcharan Singh of
the offences under Sections 302, 148, 149 and 120-B IPC, by extending benefit
of doubt. When the matter again came before this Court on 05.09.2018, it was
informed that despite the order dated 31.07.2018 staying the pronouncement of
the final judgment, the trial had concluded on 04.08.2018. The learned State
counsel stated that the order dated 31.07.2018 could not be communicated to
the authorities as it was uploaded on the website only on 07.08.2018. This
Court, however, noted that the order had been passed in open Court in the
presence of the learned State counsel and the officer assisting her and that they
were duty-bound to ensure compliance with the Court's directions. During the
subsequent proceedings, the petitioner alleged that the prosecution witnesses
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had been won over and that the trial had been conducted in a perfunctory
manner. On 02.07.2019, this Court considered the allegations regarding the
manner in which the trial had been conducted, the statements of witnesses
allegedly having been made under pressure and the conduct of the State. The
petitioner sought retrial and the trial Court record was requisitioned.
8. After the acquittal, Stalinjit Singh, who had already been
acquitted, filed CRM-27982-2019 , opposing any order of retrial. Ultimately, on
06.12.2019, this Court disposed of the aforesaid proceedings and directed
re-investigation of the entire case by Shri Kanwar Vijay Pratap Singh, Inspector
General of Police, Punjab. This Court recorded serious concerns regarding the
investigation, the conduct of the prosecution, the circumstances in which the
accused had been allowed to remain at large despite being proclaimed
offenders, the alleged influence exercised upon the witnesses and the failure to
communicate the order dated 31.07.2018 staying pronouncement of the final
judgment. The SSP concerned was directed to hand over the entire record to
Shri Kanwar Vijay Pratap Singh, who was required to complete the exercise
and submit a report within five months. Pursuant thereto, re-investigation was
undertaken. The investigating officer examined the complainant and other
persons, inspected the place of occurrence and recorded statements. The re-
investigation report also referred to allegations regarding pressure upon the
complainant and witnesses, registration of other criminal cases against persons
connected with the complainant and the circumstances surrounding the earlier
trial and acquittal. During the re-investigation, respondents No. 2 to 4, Gurdev
Singh, Stalinjit Singh and Gurcharan Singh, were also interrogated, while the
other accused were dealt with in accordance with their custody/arrest status.
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The investigating officer ultimately presented a supplementary report under
Section 173(8) of Cr.P.C. against Stalinjit Singh, Gurdev Singh, Gurcharan
Singh, Jarmanjit Singh, Uday Singh, Chamkaur Singh, Sukhraj Singh and
Balbir Singh for commission of offences punishable under Sections 302, 201,
120-B, 148 and 149 IPC. However, upon commitment, the case was committed
to the Court of Sessions only against the remaining accused, while respondents
No.2 to 4, who had already faced trial and had been acquitted, were not
summoned. The petitioner thereafter moved an application dated 08.03.2021
before the learned trial Court seeking summoning of respondents No.2 to 4 to
face trial along with the other accused on the basis of the fresh investigation
and supplementary report. However, the learned Additional Sessions Judge,
Tarn Taran, dismissed the said application, vide impugned order 25.03.2021 by
observing that respondents No. 2 to 4 had already been acquitted vide judgment
dated 04.08.2018 and the said judgment had never been set aside by any
superior Court. The learned Court further observed that the order of this Court
directing re-investigation did not direct retrial of the persons already acquitted.
It was also observed that the private respondents had already faced a complete
trial, including examination of witnesses and recording of their statements
under Section 313 Cr.P.C., and that, without the earlier judgment of acquittal
being set aside, they could not be tried again in view of the specific bar
contained in Section 300 Cr.P.C. It also noticed that the supplementary report
did not disclose any new evidence against the persons already tried and
acquitted and that no new offence had been alleged against them.
9. It is also relevant to mention that against the order dated
06.12.2019 passed by this Court in the earlier proceedings, Stalin Jeet Singh
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and another filed SLP (Crl.) Nos.1459 of 2020 before the Hon'ble Supreme
Court, wherein on 02.03.2020, notice was issued. However, subsequently, the
same was dismissed as withdrawn. The present petition was thereafter filed on
19.04.2021, challenging the order dated 25.03.2021.
10. It is argued by learned counsel for the petitioner/complainant that
the impugned order is not sustainable in the eyes of law as the learned trial
Court has failed to appreciate the true import of the order dated 06.12.2019
passed by this Court in the earlier proceedings. It is submitted that this Court,
after examining the entire matter in detail, had found serious deficiencies in the
investigation and prosecution and had directed re-investigation of the whole
case by a senior police officer. Pursuant thereto, a fresh investigation was
conducted and a supplementary report under Section 173(8) Cr.P.C. was
submitted wherein respondents No.2 to 4 were again shown as accused.
Learned counsel submits that the learned trial Court, instead of merely
considering the application for summoning respondents No.2 to 4 in the light of
the fresh investigation, proceeded to adjudicate upon the validity/effect of the
supplementary report itself and thereby virtually nullified the re-investigation
ordered by this Court. It is argued that the learned trial Court could not sit in
judgment over the order passed by this Court and was bound to give effect to
the same.
11. It is further argued that the earlier acquittal dated 04.08.2018
cannot be treated as an impediment because the said judgment was pronounced
in defiance of the order dated 31.07.2018 whereby this Court had stayed the
passing of the final judgment. The order of acquittal was therefore a nullity and
could not confer any protection under Section 300 Cr.P.C. Learned counsel for
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the petitioner further submits that the factum of the stay order having been
passed in open Court in the presence of the State counsel and the police officer
demonstrates that the subsequent acquittal could not have been permitted to
defeat the proceedings before this Court. Learned counsel further submits that
the High Court had suo motu invoked its revisional jurisdiction under Section
397(1) Cr.P.C. and, therefore, it was not necessary for the petitioner to
separately challenge the order of acquittal. It is argued that the earlier order of
acquittal stood rendered non-est because it was passed during subsistence of the
stay order. The impugned order suffers from non-application of mind as the
application before the trial Court was for summoning the three respondents on
the basis of the supplementary report, whereas the trial Court went beyond the
scope of the application and disposed of the supplementary report itself. It is,
therefore, prayed that the impugned order dated 25.03.2021 be set aside and
respondents No.2 to 4 be summoned to face trial along with the remaining
accused. To fortify his arguments, learned counsel for the petitioner has relied
upon Popular Muthiah v. State represented by Inspector of Police, 2006 (3)
RCR (Criminal) 527, Dinesh Dutt Joshi v. State of Rajasthan, 2001 (4) RCR
(Criminal) 429, A. V. Papayya Sastry and others v. Government of A. P. and
others, 2007 SCC Online SC 317 and Baldev Kaur v. Surinder Singh, 1984
Law Finder (P&H) 1239.
12. On the other hand, learned State counsel submits that there is no
illegality in the impugned order. It is submitted that respondents No.2 to 4 had
already faced trial in the same FIR and had been acquitted by the learned
Additional Sessions Judge, Tarn Taran, vide judgment dated 04.08.2018. The
said judgment has never been set aside by any competent superior Court and
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neither the State nor the complainant preferred any appeal or revision against
the same. Learned State counsel submits that the order dated 06.12.2019 passed
by this Court directed re-investigation of the case but did not specifically direct
retrial of the accused who had already been acquitted. It is further submitted
that the subsequent order of this Court recorded that the report under Section
173(8) Cr.P.C. had been presented before the competent Court and that the trial
Court was to proceed with the case and there was no direction to reopen the
concluded trial against respondents No.2 to 4. Hence, it is urged that the
petition is liable to be dismissed.
13. Learned counsel appearing on behalf of respondents No.2 to 4 has
argued that the present petition deserves to be dismissed as these respondents
have already been tried and acquitted by the learned trial Court. It is submitted
that the judgment dated 04.08.2018 has neither been challenged nor set aside
and consequently remains final and binding. The trial Court, therefore, rightly
refused to summon them in view of the statutory bar contained in Section 300
Cr.P.C. It is further submitted that the prosecution had originally filed the
report under Section 173(2) Cr.P.C. against Gurdev Singh and Stalinjit Singh,
while Gurcharan Singh was subsequently summoned under Section 319
Cr.P.C.. All three faced the complete trial, including examination of witnesses
and recording of their statements under Section 313 Cr.P.C., and were
thereafter acquitted. Thus, there is no question of their being subjected to a
second trial without the earlier judgment of acquittal having first been set aside.
Learned counsel further submits that the subsequent re-investigation did not
result in any new evidence or a new offence against the already acquitted
respondents. The learned trial Court specifically noticed that no new evidence
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had surfaced against them in the supplementary report. It is, therefore,
contended that merely mentioning their names in column No.4 of the
supplementary report cannot override the protection available to them under
Section 300 Cr.P.C. Hence, it is urged that the petition deserves dismissal.
14. This Court has heard the rival submissions at considerable length,
besides going through the material placed on record.
15. At the outset, it is worth mentioning that although the present
petition has been filed invoking the inherent jurisdiction of this Court under
Section 482 Cr.P.C., the relief sought by the petitioner, in substance, is
premised upon treating the judgment dated 04.08.2018, whereby respondents
No.2 to 4 were acquitted, as having ceased to operate. The petitioner seeks their
summoning to face trial once again for the very occurrence and the very
offences in respect of which they have already faced trial and have been
acquitted. Such a course necessarily postulates that the earlier judgment of
acquittal is first displaced in accordance with law. The statutory scheme does
not contemplate that a subsisting judgment of acquittal can be rendered
ineffective indirectly by seeking summoning of the acquitted persons on the
basis of a subsequent police report. The Code provides a specific appellate
mechanism against an order of acquittal. The State and the
complainant/petitioner did not pursue the judgment dated 04.08.2018 to its
appellate conclusion and the said judgment has admittedly not been set aside by
any competent Court. Consequently, the application filed before the learned
trial Court on the strength of the supplementary report could not be permitted to
achieve, indirectly, what could not be achieved without first questioning the
subsisting judgment of acquittal in appropriate proceedings. The inherent
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jurisdiction under Section 482 Cr.P.C. cannot be employed as a substitute for a
remedy specifically provided by the Code, particularly where exercise of such
jurisdiction would result in subjecting a person to a second prosecution
notwithstanding a subsisting acquittal.
16. Learned counsel for the petitioner has strenuously contended that
the judgment dated 04.08.2018 is a nullity since it was pronounced despite the
order dated 31.07.2018 passed by this Court, whereby pronouncement of the
final judgment by the learned trial Court had been stayed. The record indeed
shows that such an order had been passed by this Court and that,
notwithstanding the same, the learned trial Court proceeded to pronounce the
judgment of acquittal on 04.08.2018. The subsequent proceedings before this
Court also reflect the concern expressed regarding the circumstances in which
the order dated 31.07.2018 was not acted upon. The question, however, is
whether such circumstance, by itself and without the judgment of acquittal
having been set aside in appropriate proceedings, enables this Court, while
deciding the present petition, to treat the said judgment as non-existent for the
purpose of Section 300 Cr.P.C.? In the considered view of this Court, the
answer has to be in the negative. It is a settled principle that an order cannot
simply be ignored on the unilateral assertion that it is void or otherwise legally
defective. Its invalidity has to be established before a competent forum in
appropriate proceedings. Reference in this regard can be made to Tayabbhai M.
Bagasarwalla v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443 , wherein
Hon’ble Supreme Court held that an order passed by a court, even one later
found to have lacked jurisdiction to entertain the case, does not thereby become
non-est or a nullity for all purposes. Rather, it remains binding and must be
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obeyed and any disobedience committed while it was in force remains
punishable, unless and until its invalidity is established and it is set aside in
proceedings taken by a party entitled to challenge it. The said conclusion was
based on the settled principle extracted from Shiv Chander Kapoor v. Amar
Bose, (1990) 1 SCC 234 and State of Punjab v. Gurdev Singh, (1991) 4 SCC
1 , wherein it was held that 'void' is not meaningless in an absolute sense and
that an order even a hypothetically void one remains presumptively valid and
operative until the invalidity is judicially established.
17. The submission that the judgment dated 04.08.2018 is void ab
initio and may therefore simply be ignored would, in effect, require this Court,
in the present proceedings, to undertake an adjudication upon the validity of the
said judgment without the judgment itself being under challenge before this
Court in appropriate appellate or revisional proceedings. Such a course cannot
be adopted merely as an incident of deciding whether respondents No.2 to 4
should be summoned afresh. It is one thing to hold that the pronouncement of
the judgment was contrary to a subsisting direction of this Court and that such
conduct may warrant appropriate legal consequences but at the same time, it is
quite another to hold that the judgment thereby became a complete nullity for
all purposes without any formal adjudication to that effect. The latter
consequence cannot follow merely by implication. The position becomes still
clearer when examined in the context of Section 300 Cr.P.C. The protection
under the provision presupposes a prior prosecution before a competent Court
and a conviction or acquittal which continues to operate. The Hon'ble Supreme
Court in T.P. Gopalakrishnan v. State of Kerala, (2022) 14 SCC 323 , while
explaining the conditions necessary for attracting the protection against double
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jeopardy under Section 300 Cr.P.C. and Article 20(2) of the Constitution of
India, held that three conditions must be satisfied: first, there must have been a
previous proceeding before a Court of competent jurisdiction in which the
person was prosecuted and such prosecution must have been valid and not null,
void or abortive; second, the conviction or acquittal in that previous proceeding
must be in force at the time of the second proceeding, in relation to the same
offence and the same set of facts; and third, the subsequent proceeding must be
a fresh proceeding seeking to prosecute and punish the person a second time for
the same offence and the same facts, as opposed to a mere continuation of the
earlier proceeding such as an appeal. It was further clarified that for an offence
to be treated as the 'same offence' as the earlier one, it must be shown that the
offences are not distinct and that their ingredients are identical; where two
offences are made up of different ingredients, the bar has no application even if
the offences have some overlapping features. The said principle was reiterated
and applied by the Hon’ble Supreme Court in P. Manikandan v. Central
Bureau of Investigation and others, 2024 INSC 1007 , where a clear
distinction has been drawn between a 'retrial' and a 're-investigation', the former
being a continuation of the same prosecution and the latter requiring the
investigating agency to start collecting and examining evidence afresh. It was
held that while an appellate court has the power under Section 386(b) Cr.P.C. to
direct a retrial in exceptional cases, this power does not extend to directing a
fresh re-investigation once an acquittal has been recorded and doing so,
particularly through a different investigating agency starting from zero,
amounts to a fresh proceeding seeking to prosecute the person a second time for
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the same offence and the same facts, and therefore violates the protection
against double jeopardy under Article 20(2) of the Constitution.
18. In the present case, there is no material to suggest that the learned
trial Court lacked jurisdiction to conduct the trial against respondents No.2 to 4.
The complaint is essentially regarding the pronouncement of the final judgment
despite the order dated 31.07.2018. That circumstance, serious as it may be, is
distinct from a case where the entire previous prosecution was inherently
without jurisdiction or was otherwise null and abortive. The judgment dated
04.08.2018, therefore, cannot be treated as having disappeared from the legal
record merely because its pronouncement is alleged to have been in breach of
the order dated 31.07.2018.
19. Now coming to the order dated 06.12.2019, whereby this Court
directed re-investigation of the case. The said order must be read in the context
in which it was passed and for the purposes for which it was issued. The order
was undoubtedly passed after this Court had noticed serious concerns regarding
the investigation, the conduct of the prosecution and the circumstances
surrounding the trial. The record demonstrates that the Court did not lightly
exercise its jurisdiction and directed re-investigation of the case by Shri Kanwar
Vijay Pratap Singh, Inspector General of Police, Punjab. Pursuant thereto, the
investigating agency undertook further investigative exercise and a report under
Section 173(8) Cr.P.C. came to be presented before the competent Court.
However, a direction for re-investigation cannot, merely by implication, be
treated as an order setting aside an already recorded judgment of acquittal. The
order dated 06.12.2019 does not expressly set aside the judgment dated
04.08.2018, nor does it contain a specific direction that respondents No.2 to 4,
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who had already faced trial and stood acquitted, should be subjected to a fresh
trial. The distinction assumes greater significance in view of the subsequent
pronouncement of the Supreme Court in P. Manikandan’s case (supra) . In that
case, the Hon’ble Supreme Court examined the legality of directing de novo
investigation after an acquittal and emphasised the distinction between retrial
and re-investigation. It was held that the power to order retrial in the
circumstances contemplated by law is distinct from directing a fresh
investigation after an acquittal and that a direction for re-investigation on the
same facts and for the same offences, resulting in a second prosecution, cannot
be used to defeat the protection against double jeopardy under Article 20(2) of
the Constitution and Section 300 Cr.P.C. The ratio of the said judgment is
particularly relevant here because the present case involves an acquittal
followed by an investigation which has again sought to implicate the same
persons in respect of the same occurrence. Whatever may have been the
deficiencies in the earlier investigation, and however serious the circumstances
which persuaded this Court to direct re-investigation, such re-investigation
cannot, by itself, have the legal effect of wiping out a subsisting acquittal. This
is also consistent with the principle recognised in Vinay Tyagi v. Irshad Ali @
Deepak and others, (2013) 5 SCC 762 , concerning the distinction between
further investigation and the judicial adjudication which has already taken
place. A subsequent investigative report may add to the material available
before the Court, but it does not, merely by being submitted, automatically
supersede or nullify an adjudication already rendered by a competent criminal
Court.
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20. This case has one another angle also. The learned trial Court has
specifically noticed that the supplementary report did not disclose any new
evidence or any new offence qua respondents No.2 to 4 which was distinct
from the material and offences already forming the subject matter of their
earlier trial. The said finding has not been displaced before this Court by
pointing out any specific piece of fresh material in the supplementary report
which, by itself, could constitute a legally sustainable basis for subjecting the
respondents to a second trial. It is true that, during the re-investigation,
respondents No.2 to 4 were again interrogated and the investigating agency
ultimately included their names in the report submitted under Section 173(8)
Cr.P.C. However, the mere fact that the investigating agency, upon re-
examination of the material, again formed an opinion against them cannot, by
itself, undo the judicial determination already rendered in their favour. The
subsequent report, therefore, cannot be treated as furnishing a fresh cause to put
respondents No.2 to 4 on trial for the same occurrence merely because their
names have again been mentioned in the supplementary report. A police report,
however differently worded or differently assessed, cannot by itself convert a
concluded prosecution into a fresh prosecution against persons who already
stand acquitted.
21. Still further, Section 300 Cr.P.C. embodies the statutory protection
against a second prosecution and gives effect, in the criminal process, to the
fundamental principle against double jeopardy. The provision seeks to attach
finality to a prosecution once a person has been tried and acquitted or convicted
by a competent Court, subject to the exceptions recognised by law. The Hon'ble
Supreme Court in State of Bombay v. S.L. Apte, AIR 1961 SC 578 , while
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examining the scope of Article 20(2) of the Constitution, held that the
protection against double jeopardy is attracted only where the two offences are
identical in their ingredients, content and scope, and clarified that what is to be
compared for this purpose is not the allegations set out in the two proceedings
but the ingredients of the offences themselves; even where the offences share
some common elements or arise from substantially overlapping facts, the bar
has no application so long as the offences remain distinct, being made up of
different ingredients. Applying the aforesaid principles to the facts of the
present case, all the relevant requirements stand satisfied. Respondents No.2 to
4 were tried by a competent Court in the very FIR in question. The trial was not
a mere preliminary proceeding; prosecution evidence was recorded and their
statements under Section 313 Cr.P.C. were also recorded. The proceedings
culminated in their acquittal vide judgment dated 04.08.2018. The said
judgment has neither been set aside nor reversed and continues to subsist. The
present attempt to summon them on the basis of the supplementary report
would necessarily expose them to a fresh prosecution arising from the same
occurrence and the same offences. Thus, unless the earlier judgment of acquittal
is first displaced by a competent forum in accordance with law, the statutory
protection under Section 300 Cr.P.C. stands attracted. It is, therefore, not open
to the learned trial Court, while considering an application for summoning, or
to this Court in exercise of jurisdiction under Section 482 Cr.P.C., to simply
treat the subsisting judgment of acquittal as inoperative. The fact that this Court
had earlier directed re-investigation does not alter the legal position,
particularly when the said order did not expressly set aside the acquittal or
direct a retrial of respondents No.2 to 4.
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22. The further grievance of the petitioner that the learned trial Court
travelled beyond the scope of the application by examining the effect of the
supplementary report is also not made out. The application filed by the
petitioner was specifically for summoning respondents No.2 to 4 to face trial
along with the other accused on the basis of the report submitted under Section
173(8) Cr.P.C. The learned trial Court was, therefore, necessarily required to
determine whether there existed any legal impediment to summoning persons
who had already faced trial and had been acquitted. Examination of Section 300
Cr.P.C. in that context was not an adjudication upon the correctness or
otherwise of the re-investigation report in its entirety. Rather, it was a threshold
examination of the legal competence of the Court to subject the already
acquitted persons to another trial. The learned trial Court also took note of the
fact that the judgment of acquittal dated 04.08.2018 had not been set aside and
that the supplementary report did not disclose any new offence or fresh
evidence against respondents No.2 to 4 sufficient to overcome the statutory bar.
The approach adopted by the learned trial Court, therefore, cannot be
characterised as one of non-application of mind.
23. So far as the judgments relied upon by learned counsel for the
petitioner are considered, in the considered view of this Court, they do not
advance his case and are distinguishable on facts as well as in principle. Dinesh
Dutt Joshi’s case (supra) deals with the scope of Section 482 Cr.P.C. in the
context of a discharge order set aside by the High Court without hearing the
accused. It lays down the general principle that Section 482 confers no new
power but only recognizes the High Court's inherent power to cover lacunae in
procedural law, whereas A.V. Papayya Sastry’s case (supra) is equally
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inapposite as it was rendered in the context of a civil revisional authority's suo
motu power under the Urban Land (Ceiling and Regulation) Act, and holds that
the doctrine of merger and finality does not apply where a judgment or order is
shown to have been obtained by fraud. No fraud, as distinct from a procedural
irregularity in the pronouncement of the judgment, has been alleged or
established qua the acquittal dated 04.08.2018 and even the principle in A.V.
Papayya Sastry’s case (supra) does not permit a judgment to be treated as a
nullity and disregarded. In Baldev Kaur’s case (supra) , which is a Single
Bench decision of this Court, it was held that proceedings taken by a trial court
after a stay of "further proceedings" are without jurisdiction. That case dealt
with a situation where the trial court kept going ahead with a divorce case even
though the High Court had already stayed the proceedings before it. The
judgment does not say anything about what happens to an order once it has
already been passed and exists on record. It certainly does not say that a
different court, in a separate case, can simply ignore such an order without it
first being set aside. Lastly, Popular Muthiah’s case (supra) concerns the
power under Section 319 Cr.P.C. to summon an additional accused who was
never previously tried. This authority has no application to a person who has
already faced trial and stands acquitted, since Section 319 and Section 300
Cr.P.C. occupy entirely distinct fields and the general observations therein
regarding Section 482 being available to secure the ends of justice cannot be
read as overriding the specific statutory bar enacted in Section 300 Cr.P.C.
24. In view of the discussion as made above, this Court is of the
considered view that the learned trial Court has not committed any illegality,
perversity or jurisdictional error in declining to summon respondents No.2 to 4
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on the basis of the supplementary report. The judgment dated 04.08.2018
whereby respondents No.2 to 4 were acquitted continues to hold the field and
has not been set aside by any competent forum. In such circumstances, the
statutory protection contained in Section 300 Cr.P.C. squarely comes into
operation and the subsequent re-investigation and supplementary report cannot,
by themselves, provide a lawful basis for subjecting the said respondents to a
second trial for the same occurrence and offences. The argument that the
judgment dated 04.08.2018 was pronounced in breach of the order dated
31.07.2018 may give rise to such remedies as are otherwise available in law but
that circumstance cannot, in the present collateral proceedings, be treated as
having automatically obliterated the judgment of acquittal. Whether the said
judgment is liable to be interfered with on that or any other legally permissible
ground is a matter for determination in appropriate proceedings before the
competent forum. Accordingly, finding no merit in the petition, the same is
hereby dismissed.
25. It is, however, clarified that nothing contained in the present order
shall preclude the petitioner from pursuing, in accordance with law, such
remedy as may be available to him against the judgment dated 04.08.2018,
including on the ground relating to the order dated 31.07.2018, before the
appropriate forum, subject to all questions of maintainability, limitation, delay,
condonation and jurisdiction being decided in accordance with law.
31.08.2026 (MANISHA BATRA)
Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari
JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
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