1. The question that arises for determination in this case is the scope of the principle of double jeopardy outlined in Section 403(1), Criminal Procedure Code, Article 20 of the Constitution of India, and section a6 of the General Clauses Act (Central).
2. The facts of the case are briefly the following:
It was alleged that on 23th July, 1959, at 9-30 p.m., inside a hotel called 'Premier Cafe ' in Madras City, seven persons committed certain acts which involved assault on one another. The people assembled in the hotel interfered. Then two Policemen arrived at the scene and took all the seven persons to the Police Station. They were charge-sheeted for an offence under Section 75 of the City Police Act. The Special Presidency Magistrate, Mobile Court, George Town, found them all guilty on their own plea, and convicted them and sentenced them to pay fines. This conviction was on 25th July, 1959, the day after the date of the alleged offence. Subsequently, on 6th August, 1959, Ramaswami (the first accused in the earlier case) filed a complaint for an offence under Section 323 of the Indian Penal Code in the Court of the II Presidency Magistrate, Madras, against five persons who were accused 2, and accused 4 to 7 in the earlier case. The accused filed a petition before the II Presidency Magistrate, stating that the subsequent trial, in respect of the incidents on 24th July, 1959, was barred under Section 403(1) of the Code of Criminal Procedure. The Special Honorary Magistrate held the view that : there was no such bar. The present Revision Case is directed against the above decision.
3. The learned Counsel appearing for the petitioners urged that Article 20(2) of the Constitution read with the definition of ' offence' in Section 3(38) of the General Clauses Act as well as Section 26 of the General Clauses Act will be a bar to the subsequent trial. Section 3 (38) of the General Clauses Act defines 'offence' as 'any act or omission made punishable by any law for the time being in force.' Article 20(2) of the Constitution enacts 'No person shall be prosecuted and punished for the same offence more than once.' Section 26 of the General Clauses Act states:
Where an act or omission constitutes 'an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of these enactments, but shall not be liable to be punished twice for the same offence.
4. Now, the words ' same offence ' used in Article 20 of the Constitution and Section 26 of the General Clauses Act have been the subject of interpretation in a recent decision of the Supreme Court in State of Bombay v. S.L. Apte (1961) S.C.J. 685 : (1961) M.L.J. 331. It has been observed that when it is said that the offences are the same, the crucial requirement is, that they should be identical. But
if, however, the two offences are distinct then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is therefore necessary to analyse and compare not the allegations in the two complaints, but ingredients of the two offences and see whether their identity is made out.
The learned Judges also observed that this construction of Article 20(2) of the Constitution and Section 26 of the General Clauses Act is precisely in line with the terms of Section 403(2) of the Code of Criminal Procedure.
5. In the present case, it is clear that the ingredients of the two offences, namely, the offence under Section 75 of the City Police Act and the offence under Section 323 of the Indian Penal Code are not the same. Under Section 75 of the City Police Act, the ingredients are (a) the offender being found drunk and incapable of taking care of himself; or (b) he is guilty of any riotous, disorderly or indecent behaviour in any public place, in any place of public amusement, etc., or (c) is guilty of any violent or disorderly behaviour in any Police Court, etc. Leaving out of considerations for a moment, the first instance of drunkenness, the other instances require as a pre-requisite the ingredient of disturbance to other persons or annoyance to the public. It is more analogous to the offence of affray in Section 160 of the Indian Penal Code. Section 323, Indian Penal Code, does not involve this element of annoyance to the public or disorderly or indecent conduct in a public place. It was this disorderly or indecent and riotous conduct in a hotel, frequented by the public that formed the main basis of the conviction under Section 75 of the City Police Act, in the circumstances of this case. The facts which were mentioned in that connection no doubt involved an allegation of assault on the complainant by some of the other persons. Such assault by itself is sufficient to form the necessary ingredient for an offence under Section 323, Indian Penal Code, which is really an offence against an individual without any element of annoyance to the public or riotous behaviour in public. It is this latter ingredient that forms an essential additional pre-requisite before Section 75 of the City Police Act is attracted. Therefore, it is clear that the ingredients of the two offences are not the same, though the same facts might have been relied upon in both the cases. Therefore, there is no question of the principle of autrefois acquit enunciated in Section 403, of the Code of Criminal Procedure being applicable. On the other hand, even examining it from the point of view of the provisions in Section 403, Criminal Procedure Code, this is a case where Section 403(2), Criminal Procedure Code, will apply because, a separate charge might have been framed against the offender in the former trial under Section 235, Criminal Procedure Code, because the riotous behaviour in Section 75 of the City Police Act, and the hurt in Section 323, Indian Penal Code, constituted different offences committed by the same set of persons in the course of the same transaction.
6. There has been a decision of this Court given in Subbiah Kone v. Kandaswamy Kone (1931) 62 M.L.J. 197 : I.L.R. Mad. 788, which held that
Section 403 of the Code of Criminal Procedure is no bar to convictions successively under Section 323, Indian Penal Code, and under Section 3(12) of the Madras Towns Nuisances Act, in respect of the same conduct of being guilty of disorderly behaviour.
It was pointed out that the offence of hurt is an offence against an individual while the offence under the Towns Nuisances Act is an offence against the public. Section 3(12) of the Madras Towns Nuisances Act (III of 1889) is analogous in its terms to Section 75 of the City Police Act. Consequently I uphold the decision of the lower Court.
7. The petition fails and is dismissed.