1. This is a revision against an order on Crl. M. S. C. petition 24/54 in C. C. No. 3/54 on the file of the Special Judge, Chittoor. The petitioner prayed in that petition that the proceedings against him in C. C. No. 3 of 1954 be dropped and that he be acquitted of the charge on the ground that he had already been prosecuted for a similar offence committed by him on 26-6-1950 and convicted and sentenced therefor.
The accused was Bill Collector attached to the Assistant Commercial Tax Officer, Tirupathi, and was collecting money from the assessees. In S. C. 1/52, he was tried for an offence under Section 409 read with Section 477-A, I.P.C. and Section 5(2) of Act 2/47 for having misappropriated a sum of Rs. 400/- collected by him on 26-6-1950 from the firm of P. Chengalraya Chetty and Sons, Tirupathi, and for wilful and fraudulent falsification of accounts with regard to the same.
He was convicted and sentenced to five years' simple imprisonment and a fine of Rs. 500/- or in the default three months' simple imprisonment. On appeal to the High Court, Madras, the sentence was reduced to nine months' rigorous imprisonment. In C. C. 3/54, the accused is being prosecuted under Section 5(1)(c) of Act II/47 read with Section 5(2) of Act 11/47 for having misappropriated a sum of Rs. 4700/- between 8-1-1951 and 31-3-1951.
The charge-sheets in both cases were filed at the same time but the prosecution in this case did not proceed to trial. The learned Special Judge declined to uphold the plea of the accused and dismissed the petition. Mr. Narasinga Rao for the petitioner contends that though the learned Special Judge was right in his view that the provisions of Section 403, Cr. P.C. do not, strictly speaking, apply to the facts of this case, there is a wider principle of 'autrefois convict' which can be invoked in support of the petitioner's contention.
He referred me to Sidh Nath v. Emperor AIR 1929 Cal 457 at P. 458 (A) where a Division Bench of the Calcutta High Court held that the principle underlying Section 403 could be extended to cases not falling strictly within the letter of the section.
They were dealing with a case where an accused was convicted under Section 408, I.P.C., in respect of three times in the first instance. Subsequently, another charge-sheet was filed by the Police in which he was charged with having committed criminal breach of trust of three sums justice Mukherjea observed:
The present case is one in which the prosecution knew perfectly well what was the gross Bum in respect of which the petitioner had committed criminal breach of trust.
They could have, if they liked, proceeded against the petitioner in respect of this gross amount under Section 222(c) Cr. P.C. Instead of doing so, they elected to proceed on three items and got the petitioner convicted.
Justice Suhrawardy, the other Judge, observed as follows:
As the law stands, it is difficult to hold the conviction is illegal. If a person commits breach of trust of or misappropriates different sums of money he commits so many offences. But it is not desirable that he should be tried as many times when he could have been tried for all of them at One trial.
2. That was a case where the objection was taken after the conviction under the second prosecution. The next case cited by Mr. Narasingarao is the one reported in - Emperor v. Anant Narayana Kulkarni AIR 1945 Bom 413 (B). The material portion of the head-note runs thus:
The accused was found to have misappropriated a sum of Rs. 655/0/6 which was later repaid by him. Two complaints were filed against the accused. In the first he was charged under Sections 409 and 466 for having misappropriated two sums of Rs. 10 and Rs. 40 out of the sum of Rs. 655/0/6 from 19th March to 19th June 1941, and forged two receipts with respect to those amounts.
In the second complaint the accused was charged under Section 409 with criminal breach of trust in respect of the sum of Rs. 572-15-8 out of the Rs. 655/0/6 committed between 25th April and 19th June 1941. In the trial for the first two offences, the accused was acquitted. In the trial for the third offence the accused claimed to be tried and at the same time objected that in view of his previous acquittal the proceedings were barred under Section 403 and that he was entitled to acquittal:
Held that (1) the plea of autrefois acquit was not raised late.
(2) Even though the plea of autrefois 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.
Their Lordships followed the Calcutta case referred to above:
3. Another case cited by Mr. Narasingarao was that reported in - Chaman Lal v. Emperor AIR 1943 Lah 304 (C). There the petitioner was acquitted on a trial of three charges. Subsequently, he was prosecuted for five similar charges. It was found that the evidence in the remaining cases was identical with that in the three cases in which he was acquitted. The learned Judge held that it would be an abuse of the process of the Court for the accused to be further prosecuted in those cases.
This case is slightly different from the cases above mentioned. But the Calcutta case was cited by the learned Judge and he distinguished the case before him from the Calcutta case in the following words:
In the present case, however, the charges against the present petitioner in the first prosecution have failed and, therefore, prima facie it would be difficult to say that the prosecution were not entitled to go on and see if they could not succeed on some of the other charges.
4. He, therefore, directed an investigation into the nature of the evidence in support of the subsequent charges and whether there was or was not any essential difference between such evanesce and the evidence led in the cases which have already been heard. Mr. Narasingarao has also drawn my attention to the observations in - In re. Chinna Kaliappa Goundan 29 Mad 126 (FB) (D)
That was a case where the Court was dealing with the question as to whether it was competent to a Magistrate after dismissing a complaint under Section 203 Cr. P.C. to rehear the same complaint while the order of the dismissal continued to be in force and had not been set aside by a higher Court. The majority of the Court held that such a dismissal did not operate as a bar to the re-hearing of the complaint by the same Magistrate. In the course of his judgment, Subrahmanya Ayyar J. who was in a minority made these observations:
Nor is authority wanting for the view that even where the plea of 'autrefois acquit' is not available, the principle of it is available for the accused when the interests of justice require its extension in his favour.
5. On the facts of the present case, I am satisfied that the principle invoked and applied by the learned Judges of the Calcutta High Court in AIR 1929 Cal 457 at p 459 (A) should be given effect to. The revision petition is, therefore, allowed and the proceedings in C. C. 3/54 on the file of the Special Judge, Chittoor, quashed.