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Javerchand Tulsidas and ors. Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Applns. Nos. 469 and 471 of 1959
Judge
Reported inAIR1961Bom133; (1960)62BOMLR705; 1961CriLJ633; ILR1960Bom907
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 235(1), 236, 237, 249, 273, 403, 403(2) and 561-A; Police Act, 1861 - Sections 30 and 30(2); Indian Penal Code (IPC), 1860 - Sections 34, 109, 147, 148, 149, 152, 188, 323, 325, 326, 332, 338, 454 and 497; General Clauses Act, 1897 - Sections 26 and 188; Arms Act - Sections 19
AppellantJaverchand Tulsidas and ors.
RespondentThe State of Bombay
Appellant AdvocateM.N. Phadke and ;V.M. Golwalkar, Advs.
Respondent AdvocateN.L. Abhyankar, Special Govt. Pleader
Excerpt:
.....code (act v of 1898), sections 403, 235(1), 236, 237--police act, 1861, section 30(2)--indian penal code (act xlv of i860), sections 147, 332, 34, 149, 109--accused acquitted for offence under section 30(2), police act, for directing procession without obtaining licence--accused prosecuted under indian penal code for rioting and causing hurt to public servant on duty in respect of same procession but at different hour of same day--whether subsequent prosecution barred under section 403 of code.;the accused, who were prosecuted under section 30(2) of the police act, 1861, for directing or promoting a procession without a licence between 9 and 9-30 a.m. on march 3, 1958, at akola, were acquitted of the charge under section 30(2). these accused were prosecuted again under sections 147,..........were prosecuted again along with others under sections. 147, 332, 34, 149 and 109 of the indian penal code, for having committed rioting and for having voluntarily caused hurt to a public servant in the discharge of his duty as such public servant, at 10.30 a.m., on 3-3-58 at akola. 12 of the 200 persons (who are applicants in criminal revision application no. 469 of 1959) were subsequently prosecuted along with others for having committed offences under sections 147, 332, 34, 149 of the indian penal code at 1.30 p.m. on 3-3-58 at akola. the contention of these applicants that the two prosecutions are barred in view of the provisions of section 403, criminal procedure code, was rejected by the trying magistrate as well as by the sessions judge, and the same contention is now urged.....
Judgment:

1. This judgment will dispose of two Revision Applications Nos. 469 and 471 ot 1959. The facts giving rise to these two revision applications are: Orders admittedly amounting to orders of acquittal were passed in 16 cases under Section 30(2) of the Police Act in respect of more than 200 accused who had been prosecuted for directing or promoting a procession without a licence between 9 and 9.30 a.m., on 3-3-58 at Akola. 8 or these persons (who are applicants in Criminal Revision Application No. 471 of 1959) were prosecuted again along with others under Sections. 147, 332, 34, 149 and 109 of the Indian Penal Code, for having committed rioting and for having voluntarily caused hurt to a public servant in the discharge of his duty as such public servant, at 10.30 a.m., on 3-3-58 at Akola. 12 of the 200 persons (who are applicants in Criminal Revision Application No. 469 of 1959) were subsequently prosecuted along with others for having committed offences under Sections 147, 332, 34, 149 of the Indian Penal Code at 1.30 p.m. on 3-3-58 at Akola. The contention of these applicants that the two prosecutions are barred in view of the provisions of Section 403, Criminal Procedure Code, was rejected by the trying Magistrate as well as by the Sessions Judge, and the same contention is now urged before the High Court in these two revisions. The Criminal Procedure Code will hereinafter be referred to as the Code.

2. The contentions urged on behalf of the applicants by their learned counsel Mr. M. N. phadke are:-

(1) That the subsequent prosecution was barred under Section 403 of the Code.

(2) Even if it is taken that Section 403 of the Code does not apply, a principle analogous to the principle of Section 403 should be applied.

(3) At any rate, the High Court should exercise its inherent power under Section 561-A of the Code and should stop the prosecution.

(4) In any case, the principle of res judicata applied by their Lordships of the Supreme Court in Pritam Singh v. State of Punjab, : 1956CriLJ805 should be applied and it should be held that the subsequent prosecutions are not maintainable.

3. I reject both the revision applications for the following reasons: The applicants have been acquitted in a prosecution under Section 30(2) of the Police Act under which a licence should be applied for when an order contemplated in that Sub-section is passed by the Magistrate of the District or the sub-division, requiring persons convening or collecting an assembly or directing or promoting a procession to apply for a licence. The applicants were acquitted of the charge of having directed or promoted a procession between 9 and 9.30 a.m., on 3-3-5S without applying for a licence as required by Sub-section (2) of Section 30. The question is whether their subsequent prosecution under the sections of the Indian Penal Code, namely, Sections 147, 332, 34, 149 and 109 for having committed those offences at 10.30 a.m. and 1.30 p.m., are barred under Section 403 of the Code.

4. Section 403 of the Code reads as follows; '403. Persons 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 Section 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 of fence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the samp 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.' It is clear that the offences for which they are being fried subsequently were not the same offences of which they had been acquitted. The offence of which they were acquitted was the offence of directing or promoting a procession without applying for a licence. The subsequent offences are the offences of rioting and voluntarily causing hurt to a public servant. Moreover, the first offence for which they were acquitted was said to have been committed between 9 and 9.30 a.m. whereas the subsequent offences relate to the incidents at 10.30 a. m. and 1.30 p.m. although on the same day. There is therefore no doubt that the subsequent offences are not the offences of which they have been acquitted. Nor does the case fall under Section 236 or Section 237 of the Code which read as follows;

'236. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will Constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.'

'237. (1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he Committed a different offence for which he might have been Charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.'

This is not a case of doubt as to what offence had been committed between 9 and 9.30 a.m. Some offence had been committed between 9 and 9.30 a.m. and other offences at 10.30 a.m. and at 1.30 p.m. There is in fact no question of any doubt as to whether the acts constituted an offence under Section 30 of the Police Act or offences under Sections 147 and 332 of the Indian Penal Code. There could have been convictions for all the three offences if there had been a proper charge. I therefore hold that Section 403 of the Code does not assist the applicants.

5. It is however contended that Section 403 is not exhaustive and that the same principle should be extended, and reliance is placed by Mr. Phadke on Gauri Shankar Rai v. Emperor : AIR1947Pat290 , Emperor v. Anant Narayan AIR 1945 Bom 413, Sunderlal Bhagaji v. State AIR 1954 Madh B 129 and Nga Myat v. Emperor AIR 1935 Rang 436. It is urged that as in the Patna Case, in the instant case the different prosecutions are based on the same set of facts as the procession was the same procession on 9 a.m. to 1.30 p.m.

6. In the Patna case it was held that where accused persons are tried under Sections 147 and 323, Penal Code, and acquitted by a competent Magistrate, they cannot be tried again under Section 188, Penal Code, for disobeying an order under Section 144 of the Code on the same facts and as part of the same occurrence. The Patna High Court held that the accused persons could not be tried again because the bar of autre fois acquit is not confined to cases failing under Sections 236 and 237 of the Code. It was observed that on a close examination of Section 403 of the Code, the principle behind the section as a whole is that generally no accused shall he vexed with more than one trial for offences arising out of the same set of tacts. With reference to Sub-section (2) of Section 403 it was observed that under this Sub-section different offences as contemplated do not arise out of the same set ot facts, but they arise in one series of acts so connected together as to form the same transaction. It was therefore held that Sub-section (2) of Section 403 of the Code does not militate against the view that the mischief aimed at by the section is 'trying the accused persons again on the same facts.' It was therefore held that when an accused is tried under Sections 147 and 323, Penal Code, and acquitted by a competent Magistrate he cannot be tried again under Section 188, Penal Code, for disobeying an order under Section 144 of the Code on the same facts and as part of the same occurrence. In the view of the Patna High Court, to such a case Section 235(1) of the Code is not applicable. If Section 235(1) of the Code is applicable then under Section 403(2) or the Code the bar of retrial does not apply to Cases falling under Section 235(1) of the Code. With great respect the view of the Patna High Court that such offences which are part of the same occurrence are offences which arise out of the same set of facts and riot offences arising from a series of acts so connected as to form the same transaction is not logical and is contrary to the illustrations given to Sub-section (1) of Section 235 of the Code. Illustrations (a), (b), (c) and (g) to Sub-section (1) of section 235 of the Code read as follows:-

'(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged with, and convicted of, offences under Sections 225 and 333 of the Indian Penal Code.

(b) A commits house-breaking by day with intent to commit adultery, and commits in the house so entered adultery with B's wife. A may be separately charged with, and convicted of, offences under Sections 454 and 497 of the Indian Penal Code.

(c) A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with, and convicted of, offences under sections 498 and 497 of the Indian Penal Code.

(g) A, with six others, commits the offences of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under Sections 147, 325 and 152 of the Indian Penal Code.'

According to the Code therefore all these cases are cases of a series of acts forming the same transaction within the meaning of Section 235 (1) of the Code. The facts of the Patna case were that when disobeying an order under Section 144 of the Code the accused also committed rioting and hurt. The facts are exactly similar to the facts of illustrations (a) and (g) to Section 235(1) of the Code. An accused who disobeys an order under Section 144 of the Code and while doing so causes hurt can be tried for both the offences at one trial only because the case falls under Section 235(1) of the Code. The distinction drawn by the Patna High Court between the same set of facts and one series of acts so connected together as to form the same transaction does not therefore, with great respect, appear to be logical in this Connection. If a person commits the offences under Sections 147, 148 and 323, Penal Code, at the same time, there is no reason to hold that the three offences are not committed in one transaction but form the same set of facts. With great respect, therefore, it is difficult to agree with the view taken in Patna case that the accused persons cannot be tried under Section 188, Penal Code, for disobeying an order, if they had been previously acquitted of charges under Sections 147 and 323, Penal Code, committed at the same time. To such a case Sections 236 and 237 of the Code do not apply.

7. The next case relied on by Mr. Phacikc is : AIR1947Pat290 was relied on and it was held that where the accused was prosecuted and acquitted under Motor Vehicles Rules for driving a motor bus when he was fully drunk and was under influence of liquor, he Cannot be subsequently prosecuted on self-same facts under Section 338, Penal Code. But this view is contrary to that taken by our High Court in Emperor v. Rama Deoji 30 Bom LR 636 : AIR 1928 Bom 231 where it was held that a person who was convicted or acquitted for driving under the influence of liquor can be subsequently convicted of the offence of rash and negligent driving at the same time.

8. The next case relied on by Mr. Phadke is AIR 1935 Rang 436 where it was held that the acquittal of an accused person on a charge under Section 41(16) of the Rangoon Police Act (i.e. for behaving in a disorderly manner on a public thoroughfare) and tried subsequently for offences under Sections 147 and 326, Penal Code, was equivalent to an acquittal of a charge of rioting. The Rangoon High Court did not hold that such a person could not be tried or convicted under Section 326, Indian Penal Code, but on the evidence it held that it was impossible to support the conviction for having caused grievous hurt under Section 326. This case does not therefore assist Mr. Phadke because it amounts to a decision that such a person could be tried and convicted under Section 326, Indian Penal Code.

9. The next case relied on by Mr. Phadke is AIR 1945 Bom 413, where the accused who was acquitted of two offences of criminal misappropriation of two sums of Rs. 10/- and Rs. 40/- out of a sum of Rs. 655/- was subsequently put on trial for the third offence of having committed criminal breach of trust in respect of a sum of Rs. 572/-out of Rs. 655/-. It was held that even though the plea of autarchy fois acquit under Section 403 was not technically available to the accused, the principle of it was available to him in the interest of justice and that the accused should not be tried again in respect of the third offence and should be acquitted. Reliance was placed on Emperor v. Chinna Kalliappa ILR 29 Mad 126 where it was observed as follows:-

'Nor is authority wanting for the view that even where the plea of autre lois acquit is not technically available, the principle of it is available for the accused when the interests of justice require its extension in his favour.'

The Madras High Court made these observations in order to hold that although a particular order might not amount to an acquitttal, it may be treated as an order of acquittal and that to this extent the principle of Section 403 of the Code may be extended. But Explanation to Section 403 provides that

'the dismissal of a Complaint, the stopping oi 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'.

The Madras High Court did not lay down that Section 403 should be extended by extending it in a different manner, namely, by holding that although the subsequent trial is not for the same offence but for a different offence the bar of autre fois acquit or autre fois convict should be applied. The facts of the Bombay case are peculiar. In that case reference was made to Emperor v. Kashinath 12 Bom LR 226, a Division Bench case, where the accused was acquitted of the offence of criminal breach of trust as a public servant in respect of Rs. 127-but was again tried in respect of another item of Rs. 19/- misappropriated during the same period as that to which Rs. 12/- related and was convicted; it was held that the previous acquittal did not operate as a bar to the conviction of the accused at the second trial. It was, however, held in AIR 1945 Bom 413 that the principle enunciated in ILR 29 Mad 126 applied to the facts of the case before their Lordships and that the second trial of the accused should be prevented. But the facts of that Bombay case are peculiar because it appears that even at the first trial the prosecution case was that Rs. 655/- had been entrusted to the accused and the accused was tried on charges of misappropriating Rs. 10/- and Rs. 40/- out of this sum, and on the third prosecution it was another item out of the same amount which was the subject-matter of the trial. Moreover, in that case the sanction of the Government was obtained for the prosecution of the accused for the whole of the amount or Rs. 655/-. The prosecution case therefore appears to have been that the accused had misappropriated the whole amount of Rs. 655/- but he was tried of the two offences in respect of Rs. 10/- and Rs. 40/-alone. In view of the fact that the prosecution was under a sanction to prosecute which was lor misappropriation of the whole amount it may be taken that it was the prosecution case that the misappropriation of Rs. 10/- and Rs. 40/- was part of the misappropriation of Rs. 655/-. On this ground the facts in AIR 1945 Bom 413 might fall under Sub-section (1) of Section 403 of the Code and the second prosecution may be barred. But it was not held by our High Court in that case that if a person commits three offences of the same kind or misappropriates three items at three different times, in one year, and he is tried and acquitted of the first o, he cannot subsequently be tried in regard to the third. The cases relied on by Mr. Phadke do not therefore assist him.

10. It is next contended that under Section 561-Aof the Code the High Court has inherent powersto make any orders necessary to secure the ends ofjustice. In my opinion, there is nothing in this Caseto hold that the prosecution of the applicants forrioting and for voluntarily causing hurt to a publicservant is not in the interests of justice simply because they had been acquitted of the offence ofnot applying for a licence when taking out the pro-cession.

11. The next contention is that the principle of res judicata should be applied even in criminal trials as laid down by their Lordships of the Supreme Court in : 1956CriLJ805 . Following Sambasivam v. Public Prosecutor, Federation ot Malaya, 1950 AC 458 their Lordships observed as follows:-

' 'The effect of a verdict of acquittal pronounced by a competent Court on a 'awful 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'. (Observations of Lord MacDer-mott at p. 950 AC 458.

Having regard, therefore, to the circumstances attendant upon the recovery of the revolver Ex. P-14, and the acquittal of the accused of the offence under Section 19(f), Arms Act, the High Court was of the opinion that this evidence could not bo taken into consideration against him.'

Their Lordships therefore held that the evidence relating to the recovery of the revolver could not be taken into consideration against the accused at the second trial in a charge of murder. Their Lordships enunciated a rule of evidence and did not say that the second trial should not have been held. In the instant case in the subsequent trial for rioting and hurt it would not be open to the prosecution to lead evidence that accused had not applied for a licence but the subsequent trial would not be barred. This case therefore does not support the applicants.

12. There is therefore no merit in the contentions of the applicants and both the revision applications arc dismissed.

13. Revision dismissed.


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