1. The accused Sunderlal was a driver plying the passenger motor vehicle No. M. B. K. 1188 from Double Choki to Indore, on 9-11-1951. The vehicle left Double Choki on the aforesaid date at about 7-30 P. M. for going to Indore with about 8 or 10 passengers. The vehicle dashed against a culvert which is at a distance of 7 miles and 144 ft. from Indore and was upset down.
Two passengers P. W. Ramprashad and P.W. Bholaram received injuries in this incident. Both of them lodged separate reports at the Khudel Police Station. P. W. Bholaram lodged his report Immediately after the occurrence and it is exhibited as D/1. P. W. Ramprashad wrote a letter to the Police Officer Khudel on 11-11-1951 which is exhibited as P/1. The separate prosecutions were launched by the Police Khudel before the Sub Divisional Magistrate First Class Indore. One of these being Criminal Case No. 875 of 1951 was based on the report D/1 given by P.W. Bholaram. The accused in this case was prosecuted for a breach of the provisions of Motor Vehicle Rules No. 117, 123, 89/112 and was at the end of the trial acquitted by the Magistrate by his order dated 11-7-1952.
The other prosecution was Instituted on 18-12-1951 for an offence under Section 338 I.P.C. and was registered as Criminal Case No. 909 of 51. The trial Court, in this case, found the accused guilty and sentenced him to suffer rigorous imprisonment for a period of six months.
The accused filed an appeal against his conviction and sentence but the appeal was dismissed by the Sessions Judge, Indore. Aggrieved by this, the accused has preferred this revision application.
2. Mr. D. P. Bhargav, the learned Counsel for the petitioner Sunderlal, raised the following points:
(1) That the prosecution was lodged on the basis of P/1 but it was not the first information report and was therefore not admissible to evidence.
(2) That the lower Courts were wrong in finding that the petitioner was driving the vehicle rashly or negligently at the time of the occurrence. It was a case of accident caused by the boulders which were lying on the road and that the vehicle was overturned by the shaft propeller being dislodged.
The learned Counsel contended that there was no reliable evidence to prove that the vehicle dashed against the culvert because the accused was heavily drunk and unable to control it or because the lights were off.
(3) That the evidence on which the lower Courts had founded the conviction was not to fact relied upon in the previous trial of Criminal Case No. 875 of 1951 and was therefore not entitled to much weight,
(4) That the accused was acquitted in Criminal Case No. 875 of 1951 and the present prosecution having been founded on the same set of facts was not tenable in view of the provisions of Section 403, Criminal P. C.
(5) That the sentence of six months' rigorous imprisonment was too heavy in the circumstances of this case and deserved to be reduced.
3. But before proceeding further to discuss the questions of law and facts raised by the learned Counsel for the petitioner it would be useful to state the facts found by the lower Court against the accused in holding him guilty of the offence charged.
4. The trial Court held that the very fact that the vehicle struck against the boulders and then dashed against the culvert indicates that the lights were not working and that the accused himself was dead drunk and driving the vehicle rashly and negligently.
5. The appellate Court has given similar finding and it has held that the accused was probably so much drunk and intoxicated that he was unable to understand even the ordinary things. If the lights were on, the accused could have steered the vehicle through the boulders.
6. Thus according to the findings of the Sessions Judge the accused was negligent in driving vehicle because he was so much intoxicated that he forgot to switch on the lights and drove the vehicle in the dark.
There is no finding that the accused was driving the vehicle very fast or that he was not qualified and experienced to be in charge of a passenger bus.
In the previous case (Criminal Case No. 875 of 1951) the accused was charged for being Intoxicated and therefore unable to control the vehicle. He was also charged for having failed to put on the lights though it had become very dark. Both the charges were held not proved by the trial Court and the accused was consequently acquitted. The present findings of rash and negligent driving are based as stated above on the same set of facts viz., that the accused was heavily drunk and intoxicated and therefore failed to switch on the lights and steer the vehicle with care and caution through the boulders lying in the street.
There is no evidence in this case that the accused was running the vehicle very fast and the finding of rash and negligent , driving is based solely on the fact that the accused was intoxicated and unable to understand the ordinary things.
7. As regards the bar of Section 403, Criminal P. O. by reason of the acquittal in Criminal Case No. 875 of 1951 the learned Judge observed that it was true that a charge under Section 338, I, P. O. could have been framed against the accused in Criminal Case No. 875 of 1951 but the accused failed to press for it. The learned Judge has further observed that the present trial cannot be affected by the judgment in the previous case as the decision of each case is based on the evidence on record in that case.
8. The most important point that arises for consideration is whether the present trial is barred by reason of the provisions of Section 403, Criminal P. O.
On behalf of the petitioner it was contended that the present prosecution was based on the same set of facts on which the accused was ac-quitted. The learned Government Advocate on the contrary contended that it was not so barred. He pointed out that in view of the provisions in Article 20 of the Constitution the general principle of 'double jeopardy' of the English Common Law had ceased to apply to the Indian Territories and a second trial of the accused could not be barred unless the case was directly covered by the provisions of Section 403.
The learned Government Advocate relied on Sub-sections 2, 3 and 4 to Section 403 and submitted that this trial of the accused under Section 338 was competent. According to the learned Government Advocate the offences under the Motor Vehicle Rules and the offence of causing grievous hurt by rash and negligent driving were different offences and were committed in one series of acts so connected together as to form part of the same transaction within the meaning of Section 235(1) and that Sub-section 2 to Section 403 expressly permitted such a trial.
He also contended that the causing of the injuries to Ramprasad and Bholaram was the consequence of the acts dealt with in Criminal Case No. 875 of 1951 and together with those acts constituted an offence different from that for which the petitioner was once tried and acquitted.
He finally urged that the Court which acquitted the petitioner had tried that case as a summons case whereas the present trial was a trial of a warrant case and the present charge which was for a distinct offence and triable as a warrant case could not have been included in the trial of Criminal Case No. 875 of 1951. The Court which acquitted the accused was thus not a Court of competent jurisdiction and the acquittal in Criminal Case No. 875 of 1951 was not conclusive as far as the present trial was concerned.
9. Section 403 of the Criminal P. C. is to the following effect:
(1) A person who has been once 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 offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same 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.
10. This section embodies the well known principle 'autrefois acquit' and 'autrefois convict.' For the present case Mr. Bhargav has relied upon the principle of 'autrefois acquit'. The learned Counsel did not rely on the principle of 'double jeopardy' of the English Common Law but maintained that this case fell within the ambit of Section 403 and the principle underlying that section and the present trial would therefore be barred unless the provisions of Sub-sections 2, 3 or 4 could be invoked.
11. Sub-section 3 to Section 403 cannot be invoked as on the date of the judgment in Criminal Case No. 875 of 1951 the consequences for which the present proceedings are instituted viz. injuries to P. W. Ramprasad and P. W. Bholaram had occurred and had become known to the learned Magistrate, Sub-section 3 could only be invoked when the consequences had not happened or were not known to the Court to have happened at the time when the accused was convicted.
12. Sub-section 4 to Section 403 is equally not applicable. The competency of the Court to try the subsequent case is not determined by the nature of the proceedings but by the power of the Magistrate to entertain them. The Magistrate who tried Criminal Case No. 909 of 1951 was the same who had tried Criminal Case No. 875 of 1951 and there was no change in his powers in between these two trials. The Court concerned was therefore a court which was competent to try the different charges constituted by the same act. The words 'not competent to try' in Section 403(4) mean 'had no jurisdiction to try'. If the Court which tried the previous offence was also competent to try the subsequent offence the trial of the latter offence is barred. This Sub-section refers to the competency of the tribunal to try the offence and not to the nature of the proceeding, namely whether it is an offence triable as a summons case or warrant case.
A reference in this connection may be made to the case of - 'Krishna. Ayyar v. King Emperor', 24 Mad 641 (A) where the first offence was triable by the Sessions Judge with the aid of assessors and the second offence was triable by the same Court with the assistance of the Jury and it was held that this difference was not material for determining the competency of the Court and the second trial was barred.
In - 'Kanai Hizra v. Golap Hizra' 0065/1953 : AIR1953Cal197 , the accused was first tried under Section 352, I.P.C. and was acquitted. Subsequently on the same facts he was tried for an offence under Section 323, I.P.C. On an objection being raised by the accused, the High Court held that the trial was barred.
It was a case where in the previous trial, which was the trial of a summons case, the Court had acquitted the accused under Section 247, Criminal P. C. The prosecution had contended that an acquittal under Section 247 did not bar the second trial.
The High Court was of the opinion that it was after all an acquittal on the same facts and that Section 403 equally applied whether it was an acquittal under Section 247 or any other section of the Criminal P. C.
13. The words 'Court of competent jurisdiction' appearing in Section 403(1) were interpreted by the Privy Council in - 'Yusofalli Mulla v. The King' AIR 1949 PC 264 (C) as meaning a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. And in my opinion the word 'competent' appearing in Sub-section 4 is used in the same sense. There is therefore no force in the contention that the Magistrate who tried the earlier criminal case was not competent to try the second offence.
14. This brings me to the consideration of Sub-section 2 to Section 403, Criminal P. C. which provides for an exception to the general rule contained in Sub-section (1) and permits a fresh trial in cases governed by Section 235(1). This Section is reproduced below:
If in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
15. The learned Counsel for the petitioner submitted that Section 235(1) applies to cases where there is a series of acts so connected together as to form part of the same transaction different acts committed in course of it give rise to different offences, but it does not apply to a case when different offences arise out of the same set of facts.
The learned Counsel placed reliance on the Judgment of Bay J. in - 'Gauri Shankar v. Emperor' AIR 1947 Pat 290 (D). This was a case where the Sub-Divisional Magistrate had passed an order against the petitioners under Section 144, Criminal P. C. restraining them from going over certain lands in dispute or to commit a breach of peace over the said lands. It was alleged that the petitioners in disobedience of that order entered upon the lands in question and forming themselves with others into an unlawful assembly armed with deadly weapons, committed a riot and caused bodily injuries to some persons lawfully employed in ploughing the lands. The petitioners were therefore prosecuted under Section 188 of the I. P. Code.
The petitioners moved the High Court for quashing the proceedings started against them among other grounds contending that they were previously tried under Sections 147 and 323, I.P.C. on the selfsame facts and on the same occurrence and were acquitted by competent Magistrate.
The learned Judge considered the provisions of Section 403 (2) read with Section 235(1) and held that under Section 235(1) different offences as contemplated do not arise out of the same set of facts. They do arise when in one series of acts so connected together as to form the same transaction, different acts may give rise to or bring into existence different offences. The acts are different and necessarily the facts which amount to the acts must be different, though the different offences arising out of the different acts may form the subject-matter of separate charges in one trial that does not mean that either the facts or acts are identical.
The learned Judge also held that the combined effect of Section 403(2) and Section 235(1) of the Criminal P. C. was to lay down that generally no accused shall be vexed with more than one trial for offences arising out of the same set of facts.
In 'Emperor v. John Mciver' AIR 1938 Mad 353 (E), a Full Bench of the Madras High Court had occasion to consider the effect of Section 403 (2) and Section 235(1). Cornish J. with whom Mockett J, agreed held that Section 403(2) will prevent an acquittal of the offence constituted by one act or set of acts being a bar to the trial of the accused for a distinct offence constituted by another act or set of acts, but Section 235(1) had no application when an offence is based upon identical facts upon which another offence has been charged.
It was a case where the accused was charged with having obtained some bonds from the complainant by cheating. Those were sold and proceeds misappropriated by the accused. The complaint was under Section 406 and 420, I.P.C. The offence under Section 420 which was the only offence made out according to the trial Judge was compounded with the leave of the Court. The Crown appealed against the acquittal and the High Court upheld the acquittal for cheating but directed the Magistrate to proceed with the trial of the offence as regards 406, I.P.C.
At the trial the accused pleaded the bar of Section 403, Cri. Pro. Code and the Sessions Judge referred the matter to the High Court. There it was held that the facts of the cheating offence of which the accused was acquitted were identical with the facts on which he had been put up for trial for criminal breach of trust and therefore the acquittal furnished a valid plea of autrefois acquit as bar of the accused being tried for an offence under Section 406, I.P.C.
16. The learned Government Advocate has invited my attention to the case of - 'Gur Narayan v. Emperor' AIR 1928 All 191 (F), This was a case where the accused a driver of Motor Lorry was put to trial and convicted under Section 5 of the Motor Vehicle Act for reckless driving which had resulted in the lorry knocking against a Chabutra and fracturing bones of the leg of a person sitting on it. He was subsequently tried for an offence under Section 279, I.P.C. The accused pleaded the bar of autrefois convict and relied upon Section 403.
A Single Judge of the Allahabad High Court overruled the plea and held that the accused was liable to be tried again for an offence under Section 338, I.P.C. The learned Judge observed:
That the conviction for rash driving cannot protect the accused from prosecution for the consequences of such rash driving under S 325 or 338, I.P.C., though he could not have been prosecuted under Section 279, I.P.C. for rash driving on the public road so as to endanger human life.
It is clear from the facts as also from the observations in the judgment that according to the learned Judge the case fell within Section 403(3) and the accused was directed to stand his trial for the! result of rash driving and it wag held that his conviction for rash, driving did not operate as a bar to this trial.
In the present case there is no conviction in the previously decided case and Sub-section 3 to Section 403 has no application. There is acquittal in the previous case on a finding against the prosecution that the accused was so drunk as to make him incapable of controlling the vehicle and that the lights were for that reason not put on though it was quite dark.
17. The learned Government Advocate also referred to a Patna decision reported in - 'Balchandham v. Emperor' AIR 1933 Pat 670 (G).
This was a case where the accused a sentry on duty was prosecuted under Section 223, I.P.C. and Section 29, Police Act for negligently suffering a prisoner to escape. He was acquitted but later on prosecuted for violating another departmental rule which required a sentry on duty to rouse the night officer for public service.
On a plea of autrefois acquit being raised, it was held that suffering a prisoner to escape is in no way connected with the alleged failure of the accused to rouse the night officer when the public service required it. The facts of that case have no application here as is borne out by the observations of the learned Judge himself at p. 671 where he distinguished an earlier case of the same High Court - 'Maksudan Mistry v. Emperor', Am 1921 Pat 22 (H) in which it was held that acquittal for rash and negligent driving of a car precluded trial for driving the car without a license, on the ground that there it was the same act of driving the car for which the accused was being again prosecuted.
I am in respectful agreement with the view expressed by Ray J. in AIR 1947 Pat 290 (D) and the view expressed by the majority in the Full Bench case of the Madras High Court in AIR 1936 Mad 353 (FB) (E). In my opinion Section 403 (2) does not apply to case where the second trial is founded on the self-same facts for which the accused was tried once. Section 235(1) is intended to govern a case where in a series of acts so connected together as to form part of the same transaction different acts constituted different offences and not to a case where identical acts give rise to more offences than one and for any one of which the accused could be tried independently of the other. That is not so in the present case where the accused being prosecuted for a different offence arising out of the same set of facts viz. driving the vehicle when he was fully drunk and under the influence of liquor.
18. The effect of an acquittal in the previous trial is considered by the Privy Council in - 'Samba, Sivam v. Public Prosecutor, Federation of Malaya', 54 Cal W. N. 695 (I). It was a case where the accused one S. was tried on two charges one relating to the carrying of fire arms and other relating to possession of ammunitions. On the second charge, the trial Court having agreed with the assessors' verdict of not guilty acquitted S. but on the first charge the learned Judge having disagreed with the assessors' verdict of not guilty ordered re-trial of S. The re-trial of the first charge took place and S. was found guilty and sentenced to death. The appeal by S. was dismissed by the Court of appeal. An appeal was filed to the Privy Council and their Lordships held that the effect of the verdict of acquittal pronounced by competent Court oh a lawful charge & after lawful trial is not only that the person acquitted cannot be tried again for the same offence taut that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The Judgment of the Board was delivered by Lord MacDermott. At 'p. 705' the learned Judge has observed as under:
The effect of a verdict of acquittal pronounced by a competent Court on a lawful 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 proveritate 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 step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.
19. The High Court of Calcutta has followed the aforesaid Privy Council case in - 'Manakchand v. State' : AIR1952Cal730 . It was a case where a petitioner had to file a certain return with the Textile Department on a specified date and it was alleged that the accused had filed a return late and offered a bribe to the public servant employed in the Textile Department to accept the return and to antidate it.
The petitioner was prosecuted for not having submitted the return on the due date but was found not guilty as the court was satisfied that he had submitted the return in time. There was subsequent trial wherein the accused was convicted for attempting to bribe a public servant. As the conviction was maintained by the appellate Court the accused went up in revision to the High Court. A Division Bench of the Calcutta High Court consisting of Chief Justice Harries and Guha J. held;
The two cases, were between the same parties and both were concerned with failing to file a return. That in itself was made the basis of the charge upon which the petitioner was acquitted, whereas it is one of the fundamental facts that have to be established to convict him of the second charge namely of attempting to bribe.
According to the learned Judges the conviction for bribery in this case was utterly impossible as the very basis of the case was the fact that the return had not been filed in time and on this point the evidence of acquittal was conclusive.
20. Subject to the exceptions contained in Subsections 2 to 4 of Section 403, the effect of an acquittal is conclusive and binding in all subsequent proceedings between parties to the adjudication. The principle underlying the plea of autrefois acquit is not fully stated merely by saying that an accused person should not be vexed twice by prosecution on the same set of facts. The acquittal in the previous trial by a competent Court has one further effect of making the decision binding in all subsequent proceedings between the same parties.
The conviction for rash negligent driving in the present case is not based on the speed with which the accused was running the bus nor on his want of ability or experience to control a passenger bus. The accused is found guilty because he was driving the vehicle when he was completely under the Influence of liquor and unable to understand even the ordinary things. According to the appellate Court the, accused had for the same reason failed to put on the lights though it had grown quite dark. Now these precisely are the facts on which the accused was charged in the previous trial and acquitted. The very basis of conviction in this case was the fact that the petitioner was heavily drunk & therefore unable to drive the vehicle properly and on this aspect the acquittal in Criminal Case No. 875 of 1951 was conclusive. In my opinion the previous decision is binding on the prosecution and the plea of autrefois acquit must prevail. ' (21) Having regard to the view I have taken it Is not necessary to consider the merits of the case any further.
22. The result is that the revision application is allowed. The conviction and sentence is set aside and the petitioner is acquitted.