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inguva Mallikarjuna Sharma Vs. the State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ392
Appellantinguva Mallikarjuna Sharma
RespondentThe State of Andhra Pradesh and anr.
Excerpt:
.....are satisfied that the k. 5. no doubt the law does not contemplate anything like a preliminary charge-sheet. sanction of a prosecution must be expressed with sufficient particularity to indicate clearly the matter which is to be the subject of the proceeding and it should be apparent from the order of sanction that the authority applied its mind to the facts constituting the offence or offences. the order of sanction in the instant case clearly shows that the inspector-general of police, hyderabad wrote a letter and also forwarded the preliminary charge-sheet to the government. on a perusal of the facts contained in the preliminary charge-sheet, the government were satisfied that the accused persons should be tried for offences punishable under sections 121, 121-a, 122, 123 and..........sections 302, 395 and 397 of the indian' penal code;and whereas upon a perusal of the preliminary charge-sheet particulars to crime no. 13/74 of central crime station hyderabad the government are satisfied that the k. g. satyamurthi and 45 others whose names and other .particulars are specified in the schedule to this order should be tried for offences punishable under sections 121, 121-a, 122, 123 and 124-a of the penal code and also section 120-b read with sections 302, 395 and 397 of the penal code;now, therefore in exercise of the powers conferred by sub-clause (1) of section 196 of the cr.pc 1973, the governor of andhra pradesh hereby accords sanction for the prosecution of the said k. g. satyamurthi and 45 others, whose names and other particulars are specified in the schedule to.....
Judgment:

Madhusudan Rao, J.

1. These two petitions are filed Under Section 482 Cr.PC for quashing the charges framed against the petitioners. Sessions Cases Nos. 10/75, 67/75, 48/66 and 4/77 were clubbed for joint trial by the Additional Metropolitan Sessions Judge, Hyderabad. There are 39 accused arrayed as A-l to A-24 and A-26 A-40. All the 39 accused have been charged under six counts. The first charge is Under Section 120-B read with Sections 302, 395 and 397 IPC The second charge Is Under Section 121 I. P. C. The third, fourth, fifth and sixth charges are Under Sections 121-A, 122, 123 and. 124-A IPC respectively. The first accused has filed Crl. M. P. No. 1446 of 77. The 15th accused filed Crl. M. P. No. 1447 of 77.

2. Sri K. G. Kannabhiran, the learned counsel for the' petitioners has urged two grounds. The first ground is that the Court could not have validly taken cognizance of the offences Under Sections 121, 121-A, 122, 123 and 124-A IPC in so far as the sanction obtained is invalid. The second ground is that the trial of the accused for the offence of conspiracy Under Section 120-B IPC is invalid in go far as the previous consent of the State Government was not obtained as required under Sub-section (2) of Section 300 of the Code of Criminal Procedure. The learned Public Prosecutor opposes the application contending that the sanction obtained by the prosecution is valid and that the offence of conspiracy for which the accused are being prosecuted does not require the previous consent of the Government.

3. So far as the first ground is concerned, there is an order of the Government sanctioning the prosecution. It reads as follows:

General Administration (S. C. A.)

Department

G.O.Ms. 558 Dated the 12th Aug. 1974. Read the Following :- From the Inspector-General of Police, Hyderabad letter No. 526/N 93/74 dated 2-8-74.

ORDER

Whereas it has been made to appear to the Government of Andhra Pradesh that there is reason to believe that during the years 1969 to 1974 K. G. Satyamurthi and 45 others whose names and other particulars are specified in the Schedule to this Order have committed offences punishable Under Sections 121, 121-A, 122, 123 and 124-A of the Indian Penal Code and also Section 120-B read with Sections 302, 395 and 397 of the Indian' Penal Code;

AND WHEREAS upon a perusal of the preliminary charge-sheet particulars to crime No. 13/74 of Central Crime Station Hyderabad the Government are satisfied that the K. G. Satyamurthi and 45 others whose names and other .particulars are specified in the Schedule to this Order should be tried for offences punishable Under Sections 121, 121-A, 122, 123 and 124-A of the Penal Code and also Section 120-B read with Sections 302, 395 and 397 of the Penal Code;

NOW, therefore in exercise of the powers conferred by Sub-clause (1) of Section 196 of the Cr.PC 1973, the Governor of Andhra Pradesh hereby accords sanction for the prosecution of the said K. G. Satyamurthi and 45 others, whose names and other particulars are specified in the Schedule to this Order for the offences punishable Under Sections 121, 122, 123, 121-A and 124A of the Penal Code and also Section 120-B read with Sections 302, 395 and 397 Of the Penal Code.

Sd/- N. Bhagavandas,

Chief Secretary to

Government.

4. Relying on the observations of the Privy Council in Gokulchand Morarkav. The King, (1948) 75 Und App 30 : 49 Cri LJ 261 (PC) Sri Kannabhiran contends that sanctioning a prosecution Under Section 196, Cr.PC i9 not an empty formality and that the order of sanction must disclose that the sanctioning authority applied its mind and acted on legal evidence before sanctioning the prosecution. It is vehemently argued that in so far ag the sanctioning authority merely perused the preliminary charge-sheet and sanctioned the prosecution, it was not in possession of all the necessary facts for granting the sanction. It is further urged that a preliminary charge-sheet is no document in the eye of law, that it is no legal evidence and that moreover by the date of the preliminary charge-sheet all the facts constituting the offences were not available to the prosecution.

5. No doubt the law does not contemplate anything like a preliminary charge-sheet. It contemplates only the report of a Police Officer. A preliminary charge-sheet, however, is also a report of a Police Officer containing certain allegations. What all was held in Gokulchand Dwarkadas Murarka case 1948-49 Cri LJ 261 (PC) is that the sanction order must show that the sanctioning authority knew the facts alleged to constitute the offence. It was not held therein that there should be legal evidence before the sanctioning authority for sanctioning a prosecution Under Section 196, Cr.PC The object of Section 196, Cr.PC is to ensure prosecution only after due consideration by the appropriate authority so that frivolous or needless prosecutions are avoided. Sanction of a prosecution must be expressed with sufficient particularity to indicate clearly the matter which is to be the subject of the proceeding and it should be apparent from the order of sanction that the authority applied its mind to the facts constituting the offence or offences. In according or withholding sanction under the Section, the Government acts purely in an executive capacity and not in a judicial capacity. The sanction need not be based, on any legal evidence nor is it necessary that the authority should give reasons for sanctioning the prosecution or for withholding the prosecution. The order of sanction in the instant case clearly shows that the Inspector-General of Police, Hyderabad wrote a letter and also forwarded the preliminary charge-sheet to the Government. On a perusal of the facts contained in the preliminary charge-sheet, the Government were satisfied that the accused persons should be tried for offences punishable Under Sections 121, 121-A, 122, 123 and 124-A, I.P.C. and also Under Section 120-B read with Sections 302, 395 and 397 of the Penal Code.

6. The preliminary charge-sheet runs to 16 foolscap typed pages and the facts stated therein constitute the offences for which the sanction was accorded. The essence of the matter does not lie in the description of the document as a 'preliminary charge-sheet1. What is essential is whether the authority competent to sanction the prosecution was appraised of all the necessary facts constituting, the offences for which sanction is accorded, As pointed out by Sri Kannabhiran, no doubt the preliminary charge-sheet is dated 17-7-74 while the final charge-sheet was filed an 19-8-74. It is argued that on 12-8-74 when the sanction was accorded, the sanctioning authority was in possession of only those facts as were contained in the preliminary charge-sheet and was not aware of the facts contained in the final charge-sheet and that therefore the sanction is bad. We are unable to find any substance in this submission. The facts alleged in the final charge-sheet are the same. The report dated 17-7-74 was styled as preliminary charge-sheet by the prosecuting agency only because by that time the necessary sanction to prosecute the accused was not obtained.

7. Yet another contention of Sri Kannabhiran is that though, the preliminary charge-sheet or otherwise the Investigating Officer did not bring to the1 notice of the Government that the ac- cused persons were already prosecuted for the offences of murders and dacoities, for murders and dacoities were brought to the notice of the Government, the Government might not have sanctioned the prosecution in the instant case. We do not find any substance in this submission also. What all is necessary for the sanctioning authority to examine whether there are sufficient facts constituting the offences for which sanction is to be accorded and the facts contained in the preliminary charge-sheet in the instant case do disclose the offences for which sanction was accorded.

8. So far as the second ground is concerned, Sub-section (2) of Section 300, Cr.PC reads as follows:

A person acquitted or convicted of any offence may be afterwards tried,. with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (1) of Section 220.

9. Sri Kannabhiran contends that the petitioners and other accused were tried under several cases for offences punishable Under Sections 302, 395 and 397, IPC and that while some cases resulted in convictions, some other cases resulted in acquittals and a few other cases ere still pending investigation. He points out that the conspiracy to commit these murders and dacoities and the commission of murders and dacoities constitute one series of facts so connected together as to form the same transaction and though they are different and distinct offences, they could be tried Under Section 220 (1), Cr.PC at one and the same trial; in so far as the accused persons were not tried for the offence of conspiracy to commit murders and dacoities in the trials for the murders and dacoities, they cannot be subsequently tried for conspiracy except with the previous consent of the Government. The learned Public Prosecutor contends that the prosecution was not in possession of facts constituting the conspiracy by the time the accused persons were charged for the offences of murders and dacoities. He says that the conspiracy came to light only long after the trials for the murders and dacoities and that therefore the accused could not have been tried for the offence of conspiracy in the trials for murders and dacoities. There is nothing before us to show that the prosecution was aware of the conspiracy during the previous trials. At this stage we have no reason to doubt the statement of the proecution particularly in the light of the affirmation of the Assistant Secretary in para 9 of the affidavit filed on behalf of the State, The affirmation is as follows:

The contention that the conspiracy was never alleged at the time of the trial of the cases cited above is of no avail to the petitioners as the conspiracy came to light only at a later point of time.

10. Section 300 of the Cr.PC of 1973 incorporates the doctrine of autre-fois acquit and autrefois convict which was sanctioned in Section 403 of the old Code. Sub-section (2) of Section 403 of the old Code was as follows:

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).

11. The new Sub-section (2) of Section 300 is slightly modified and brings in a restraint on the subsequent trial even for a distinct offence if the person could have been tried for the distinct offence in the earlier trial. The restraint is by way of a consent of the State Government. Under the old Code, when in a series of acts so connected together as to form the same transaction, distinct and different offences were committed, it was permissible to prosecute the person for one offence or some offences at one trial and for the remaining distinct and different offences in & subsequent trial. The rule of double jeopardy prohibits double trial for the same offence and not for several offences committed though in the course of the same transaction. Extending the principle of prohibition against double jeopardy to a reasonable extent, under the new Sub-section (2) of Section 300, the Legislature imposed a restriction and that restriction is that when several offences were committed in the course of the same transaction, however distinct those offences may be, if the person was tried for some of the offences committed in that transaction he should not be tried for the other offences except with the previous consent of the State Government. The rationale is clear and the new provision envisages a wholesome protection to the accused person. Consent of the State Gvernment is expected to be given only after due consideration of all the facts and circum- stances of the case and with the main intendment of the law viz., promotion of justice. When a person commits three offences in the course of the same transaction and if such person could have been tried for all the three offences in the same trial and was, however, tried only for two offences, it is but fair and proper that the question of again putting him on trial for the remaining offence is seriously considered by a responsible authority.

12. In the instant case the offence of conspiracy, though committed in the course of the same transaction in which the offences of murders and dacoities were committed, was not known to the prosecution at the time the accused persons were tried for the offences of murders and dacoities. It cannot therefore be said that the accused might have been charged for the offence of conspiracy at the time of the trials for the murders and dacoities. Sub-section (2) of Section 300, Cr.PC applies only for offences for which charge9 might have been framed at the previous trials. We do not therefore find any substance in the second ground also.

13. Under the above circumstances, we are of the view that both the petitions deserve to be dismissed and they are accordingly dismissed.


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