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PETITIONER: BHAGAT RAM

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT31/01/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M.

CITATION:  1972 AIR 1502            1972 SCR  (3) 503  1972 SCC  (2) 466  CITATOR INFO :  R          1973 SC2131  (13)  R          1980 SC 301  (4)  RF         1981 SC 365  (2,3)  R          1988 SC1531  (189)

ACT: Criminal Law-Practice and Procedure-Two accused charged with offenses  for  conspiracy and  other  offences-Acquitted  by trial  court  Appeal heard by two  Judges-Acquittal  of  one accused and the other of offenses of conspiracy etc. upheld- Difference  of opinion with respect to offence under s.  161 I.P.C.-Reference to third Judge-Jurisdiction of third  Judge to reopen entire matter.

HEADNOTE: An  Inspector of Police was charged with offenses under  ss. 120B,  161, 218, 347 and 389 I.P.C. and also under  s.  5(1) (a)  read with s. 5(2) of the Prevention of Corruption  Act. Another  accused  was charged along with  him  for  offenses under  ss. 120B and 165A, I.P.C. The trial court  acquitted both the accused. in appeal to the High Court a Bench of two judges confirmed the acquittal of the second accused and the acquittal  of the Inspector with respect to  offenses  under ss.  120B,  218, 349 and 389, I.P.C., but  with  respect  to offenses  under  s.  161,  I.P.C. and s.  5(1)  (a)  of  the Prevention  of Corruption Act, the two Judges  differed  and the  matter was referred to a third Judge.  The third  Judge held that the Inspector was guilty of the offenses under  s. 161 and also under ss. 120B. 218 and 347 I.P.C. In  appeal to this Court by the Inspector and by  the  State against the acquittal of the second accused, HELD  : (1) As regards the second accused there was  nothing to justify an interference with his acquittal. 1310 H] (2) It was not permissible for the third Judge to reopen the matter  and.  convict the Inspector for offenses  under  ss. 120B,  347 and 389 I.P.C., because it was not a  case  where the entire matter had been left open for the opinion of  the third  Judge.   The difference of opinion  between  the  two Judges  was only with respect to the offenses under  s.  161 I.P.C.  and s. 5(1)(a) of the Prevention of  Corruption  Act and  the third Judge could only go into that aspect  of  the matter. [309 B-D]

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The Division Bench had upheld the acquittal of the Inspector of  Police for offenses under ss. 120B, 347 and 389 and  the State  appeal  in  that respect had been  dismissed  by  the Division  Bench.  That order. unless set aside in appeal  to this  Court,  was binding and conclusive in  all  subsequent proceedings  between  the  parties.  The  principle  of  res judicata  is also applicable to criminal proceedings and  it is  not  permissible  in the subsequent stage  of  the  same proceedings  or  in  some other  subsequent  proceedings  to convict a person for an offence in respect of which an order for his acquittal has already been recorded. [309 F-H] Pritam  Singh  v.  State of Punjab, 1956  S.C.  A.I.R.  415, followed. Further when the second accused was acquitted of the  charge under s.  120B  I.P.C. the basis of the charge  against  the Inspector for conspiracy 7-LS879-jp.  Cl/72 304 between him and the second accused disappeared.  It was  not the  case  ,of the prosecution that he had  conspired with some  other person whose identity had not been  established. [310 E-F] In  view of the acquittal of the second accused it  is  also not  possible  to maintain the conviction of  the  Inspector under  s. 161 I.P.C. since it was not the  prosecution  case that he had made any demand directly for payment of  illegal gratification.   On the contrary, the prosecution  case  was that   the   Inspector   had  attempted   to   obtain   such gratification through instrumentality of the second accused. [311 B-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 36 of 1969 and 202 of 1970. Appeal from the judgment and order dated January 17, 1969 of the Rajasthan High Court in D.B. Criminal Appeal No. 376  of 1965. A.  S. R. Chari and Sobhagmal Jain, for the  appellant  (in, Cr. A. No. 36 of 1969). K.  B. Mehta for the respondent (in Cr.  A. No. 36 of  1969) (in Cr.  A. No. 202 of 1970). S. C. Gupta, Ramesh Chand, S. Bhandare and P. H. Parekh, for the respondent (in Cr.  A. No. 202 of 1970). The Judgment of the Court was delivered by Khanna,  J. This judgment would dispose of  criminal  appeal No. 36 of 1969 Bhagat Ram v. State of Rajasthan and criminal appeal  No. 262 of 1970 State of Rajasthan v.  Ram  Swaroop. Both  the appeals have been filed on certificate granted  by the Rajasthan High Court. Bhagat  Ram during the year 1962 was posted as  circle  ins- pector of police at Ganganagar.  Ancestral village of Bhagat Ram  is  Mehna  in Tehsil  Moga,  District  Ferozepur.   Ram Swaroop  also belongs to that village.  Both Bhagat Ram  and Ram Swaroop were tried in the court of special judge, Ganga- nagar for offenses under section 120B IPC for conspiring  to ,extort bribe of Rs. 2,000 from P W I Niranjan Dass of Moga. Charges  were  also framed against Bhagat Ram  for  offenses under  sections 161, 218, 347 and 389 Indian Penal  Code  as also section 5 (1) (a) read with section 5 (2) of Prevention of  Corruption  Act.  Additional charge under  section  165A Indian  Penal  Code was framed against  Ram  Swaroop.   Both Bhagat  Ram  and Ram Swaroop were acquitted by  the  special judge, Ganganagar in respect of all the charges.  The  State of  Rajasthan filed an appeal against the acquittal  of  the

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two  accused.   The  appeal was heard by  a  Division  Bench consisting of Tyagi and Lodha, T.T. 305 The  Division  Bench dismissed the said appeal  against  the acquittal  of Ram SwarooP.  The appeal of the State  against Bhagat  Ram  in so far as it related to  his  acquittal  for offenses under sections 347, 218, 389 and 120B IPC was  also dismissed.   There  was, however, a  difference  of  opinion between  the two learned judges on the point as  to  whether the acquittal of Bhagat Rain for offenses under section  161 IPC  and 5(1) (a) of Prevention of Corruption Act should  be maintained.  According to Tyagi, J., the case against Bhagat Ram for the above mentioned two offenses had not been proved and  the State appeal in that respect also was liable to  be dismissed.   As  against that Lodha, J. took the  view  that Bhagat  Ram was guilty of offenses under section 161  Indian Penal Code and section 5 (1) (a) of Prevention of Corruption Act.   He accordingly passed an order for the conviction  of Bhagat Ram for the above mentioned two offenses. In  view of the difference between the two judges  regarding the  acquittal of Bhagat Ram for offenses under section  161 IPC and 5 (1) (a) of Prevention of Corruption Act, the  case was  placed  under  section  429 of  the  Code  of  Criminal Procedure before Jagat Narayan, J. Jagat Narayan, J. came to the  conclusion that the material on record showed that  Ram Swaroop  and  Bhagat Ram had entered into  an  agreement  to extort  bribe, from Niranjan Dass and, as such, were  guilty of  an offence under section 120A punishable  under  section 120B of Indian Penal Code.  The learned judge, however, felt that in view of the decision of the Division Bench, he could not  set  aside the acquittal of Ram  Swaroop.   As  regards Bhagat Ram, the learned judge came to the conclusion that he could  set  aside the acquittal of Bhagat Ram  for  offenses under sections 120B, 218 and 347 IPC.  Bhagat Ram was  found guilty  by Jagat Narayan, J. of the offenses under  sections 120B,  161, 218 and 347 IPC.  For the offence under  section 161  IPC,  Bhagat  Ram was  sentenced  to  undergo  rigorous imprisonment  for a period of one year and to pay a fine  of Rs. 5001- or in default to undergo rigorous imprisonment for a  further period of three months.  For the  offenses  under sections  218  and  347 IPC, Bhagat  Ram  was  sentenced  to undergo  rigorous imprisonment for a period of one  year  on each   count.    These  sentences  were   ordered   to   run concurrently  with  the sentence imposed under  section  161 IPC.  No sentence was awarded for the offence under  section 120B  IPC.  Bhagat Ram has filed criminal appeal No.  36  of 1969 against his conviction and sentence, while the State of Rajasthan  has  filed  appeal No. 202 of  1970  against  the acquittal of Ram Swaroop. The  prosecution case is that a case under sections 408  and 420  IPC was registered on June 14, 1962 at  police  station Ganganagar  on  a  report made by  the  general  manager  of Ganganagar 306 Sugar Mills against Ramesh, an employee of the sugar  mills. Bhagat.Ram,  who  was circle inspector of  Ganganagar,  took over the investigation of the above case.  Bhagat Ram during investigation  came  to  know  that  Ramesh  had  sent   the misappropriated  amount  to  his  brother  Puran  Chand   at Ludhiana.  Bhagat Ram also came to know that Puran Chand had entered into a transaction for the purchase of a truck  from PW  Niranjan  Dass  of  Moga for a-  price  of  Rs.  22,000. Niranjan  Dass received Rs. 7,000 from Puran Chand  in  that connection.  As Puran Chand could not pay the balance of the purchase  price, the bargain regarding the purchase  of  the

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truck was cancelled and the amount received by Niranjan Dass was  stated to have been returned to Puran Chand.  It  seems that  Bhagat Ram took the stand that part of Rs.  7,000  had been  kept  by  Niranjan Dass  with  himself.   Bhagat  Ram, therefore.   summoned  Niranjan  Dass  to   police   station Ganganagar.  In obedience to the summons, Niranjan Dass went with his brother Manohar Lal PW to Ganganagar police station on  July 27, 1962.  Niranjan Dass and Manohar Lal could  not meet  Bhagat  Ram on that day but met him on  the  following day.   Bhagat Ram then behaved in an unduly rude  and  harsh manner to Niranjan Dass and kept him at the police  station. Manohar Lal apprehending trouble, returned to Moga and  took with  him  Ram  Swaroop  accused  and  some  other  persons. Manohar  Lal and his companions reached Ganganagar  on  July 29,  1962.   In  the  meanwhile,  Bhagat  Ram  had  gone  to Hindumalkot.  Accompanied by Niranjan Dass, Ram Swaroop  and others,  Manohar Lal went to Hindumalkot Dak bungalow  where Bhagat Ram was staying.  It is stated that Ram Swaroop  went inside  the  room  in which Bhagat Ram  was  present,  while others  stayed outside.  After’ some time Ram  Swaroop  came out  of the room and told Niranjan Dass and Manohar Lal  not to  feel  worried.   Niranjan  Dass  was  asked  to  give  a statement  which  was  thereafter recorded  by  Bhagat  Ram. Bhagat  Ram  then produced three documents relating  to  the agreement  for  the  sale of truck  and  the  receipt  which Niranjan Dass had obtained from Puran Chand. for the  refund of Rs. 7,000.  Bhagat Ram then told Niranian Dass to go back to  Moga.  It was also mentioned by Bhagat Ram that  if  the presence   of  Niranjan  Dass  was  required   for   further investigation, he would be summoned again. About  10  or 15 days after that, it is stated,  Bhagat  Ram went  to Moga in a jeep and stayed at the house of  Niranjan Dass  and  Manohar Lal for the night.   While  leaving  Moga early  next  morning,  Bhagat Ram  told  Niranjan  Dass  and Manohar  Lal that they should have a talk with  Ram  Swaroop and  act  according to Ram  Swaroop’s  instructions.   After Bhagat Ram had left Moga, Ram Swaroop met Niranjan Dass  and informed him that Bhagat Ram Wanted Rs. 21,000 as bribe  for having helped Niranjan Dass 307 to get out of the trouble and that otherwise, Niranjan  Dass would  be  again entangled in the case. Niranjan  Dass  then told  Ram Swaroop that he would consult a lawyer and give  a reply. Ram  Swaroop,  according to the prosecution  case,  came  to Niranjan  Dass in the first week of October 1962 and  showed letter P. 2 which had been sent by Bhagat Ram to Ram Swaroop from  Alwar.  In  the course of that letter  it  was  stated Kindly  kindness  send  that thing to Alwar.  This  is  very important and please do  not  be careless and slack  in  the matter." Ram Swaroop told Niranjan Dass that the words "that thing" in the letter referred to Rs. 2,000 and demanded that amount from Niranjan Dass, so that it could be passed on  to Bhagat Ram. Niranjan Dass expressed his inability to  accede to  this  demand.  The  letter  was,  however,  retained  by Niranjan Dass. A few days thereafter Ram Swaroop again  came to Niranjan Dass and showed him telegram P.3A dated  October 19,  1962. The telegram had been addressed by Bhagat Ram  to Ram  Swaroop  and  it was stated therein  that  Ram  Swaroop should  ask  Niranjan  Dass  to  see  Bhagat  Ram  and  that otherwise  ,  warrants  of arrest would  be  issued  against him.This  telegram  too  was kept  by  Niranjan  Dass,  with himself. On  December 26, 1962, it is stated, Niranjan Dass came  tos know  that warrants for his arrest had been received by  the

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Moga  police  in  the above  mentioned  case  registered  at Ganganagar.Niranjan  Dass then consulted a lawyer  and  sent complaint  dated December 26, 1962 to the Inspector  General of  Police,  Special  Police  Establishment.   A  case   was thereafter registered on the basis of the above complaint by DSP   Umaid  Singh  of  AntiCorruption  Department.    After necessary  investigation,  Bhagat Ram and Ram  Swaroop  were sent up for trial. In  his statement under section 342 of the Code of  Criminal Procedure, Ram Swaroop admitted that he knew Bhagat Ram  and that  he had gone to him on July 29, 1962 with  Manohar  Lal and  Niranjan Dass at Hindumalkot.  Ram Swaroop denied  that Bhagat  Ram  had  made any demand through  him  for  illegal gratification.   According  to Ram Swaroop, Bhagat  Ram  had asked  him  to realise the embezzled  amount  from  Niranjan Dass.  The other allegations made against him were denied by Ram Swaroop. he, however, admitted having received letter P. 2 and telegram P. 3A from Bhagat Ram and having handed  over those documents to Niranjan Dass.  Ram Swaroop added that he had  asked Niranjan Dass to pay the embezzled  amount  which was with him. Bhagat  Ram  admitted that he had been  entrusted  with  the investigation  of  the case against Ramesh and that  he  had called  Niranjan  Dass  to Ganganagar  in  that  connection. Bhagat Ram 308 denied  having maltreated Niranjan Dass or having  kept  him under unlawful detention.  Bhagat Ram admitted that Niranjan Dass and Ram Swaroop had met him on July 29, 1962 at  Hinau- malkot  but  he denied having made any  demand  through  Ram Swaroop  for  the  payment of Rs. 2,000 as  bribe.   It  was admitted  by  Bhagat Ram that he had gone to  Moga  but  the demand  for any illegal gratification from Niranjan Dass  at Moga  was denied by Bhagat Ram.  Bhagat Ram admitted  having sent  letter  P. 2 and telegram P. 3A to  Ram  Swaroop.   As regards the words "that thing", Bhagat Ram stated that  they referred to the embezzled amount which had been retained  by Niranjan Dass. The  trial  court,  as stated earlier,  acquitted  both  the accused,  while the High Court maintained the  acquittal  of Ram Swaroop.  As regards Bhagat Ram, there was a  difference between the two judges.  On the matter being referred to the third  judge,  Bhagat  Ram was convicted  and  sentenced  as above. Arguments  have  been addressed in the two  appeals  by  Mr. Mehta  on  behalf of the State of Rajasthan,  Mr.  Chari  on behalf of Bhagat Ram and Mr. Gupta on behalf of Ram Swaroop. After  hearing  the learned counsel, we are of  the  opinion that  the  appeal  filed by the State  of  Rajasthan  merits dismissal, while that-filed by Bhagat Ram should be allowed. It  would appear from the resume of facts given  above  that both  Bhagat Ram and Ram Swaroop were acquitted by the  spe- cial  judge.   On  appeal filed by the  State  of  Rajasthan against  the acquittal of the two accused, Tyagi and  Lodha, JJ.  maintained the order relating to the acquittal  of  Ram Swaroop.   As  regards  Bhagat  Ram,  though  there  was   a difference between the two judges regarding the  correctness of  his  acquittal for offenses under section  5(1)  (a)  of Prevention of Corruption Act and section 161 of Indian Penal Code., they concurred with regard to the acquittal of Bhagat Ram in respect of the charges under sections 120B. 218,  347 and  389  IPC.  The State appeal against  the  acquittal  of Bhagat  Ram was dismissed to that extent.  The  order  which was  made by the learned judges of the Division Bench  reads as under :

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             "BY THE COURT               The  result  is that the appeal of  the  State               against  the order of acquittal of  respondent               Ram  Swaroop is dismissed.  The appeal of  the               State so far as it relates to the acquittal of               respondent Bhagat Ram under sections 347, 218,               389  and  120B  Indian  Penal  Code  is   also               dismissed.   In  view  of  the  difference  of               opinion  about  the acquittal  of  Bhagat  Ram               under section 161 Indian 309 .lm15 Penal  Code  and  section 5 (1) (a)  of  the  Prevention  of Corruption  Act, the matter may be laid before  Hon’ble  the Chief Justice for referring it to the third judge." In  view  of  the fact that the  State  appeal  against  the acquittal  of Bhagat Ram for offenses under  sections  120B, 218,  347 and 389 I P C had been dismissed by  the  Division Bench, it was, in our opinion, not permissible for the third judge  to  reopen  the matter and  convict  Bhagat  Ram  for offenses  under sections 347, 389 and 120B IPC.  The  matter had been referred under section 429 of the Code of  Criminal Procedure   to  Jagat  Narayan,  J.  because  there  was   a difference  of  opinion  between Tyagi,  J.  and  Lodha,  J. regarding the correctness of the acquittal of Bhagat Ram for offenses  under  section  161 IPC and section  5(1)  (a)  of Prevention  of Corruption Act.  Jagat Narayan, J.  could  go only  into  this  aspect of the matter  and  arrive  at  his conclusion.   The present was not a case wherein the  entire matter relating to the acquittal or conviction of Bhagat Ram had  been  left  open because of  a  difference  of  opinion between  the  two judges.  Had that been the  position,  the whole  case  relating to Bhagat Ram  could  legitimately  be considered by Jagat Narayan, J. and he could have formed his own  view  of the matter regarding the  correctness  of  the order  of  acquittal made by the trial judge in  respect  of Bhagat  Ram.   On  the contrary, as  mentioned  earlier,  an express order had been made by the Division Bench  upholding the  ’acquittal  of Bhagat Ram for offenses  under  sections 120B,  218,  347 and 389 IPC and the State  appeal  in  that respect  had  been  dismissed.  The above  decision  of  the Division Bench was binding upon Jagat Narayan, J. and he was in  error  in  convicting  Bhagat  Ram  for  offenses  under sections  120B,  218 and 347 IPC despite the  order  of  the Division  Bench.   It was, in our opinion,  not  within  the competence  of  the learned judge to reopen the  matter  and pass  the  above  order of conviction in  the  face  of  the earlier  order  of the Division Bench whereby the  order  of acquittal  of Bhagat Ram made by the trial judge in  respect of  the said three charges had been affirmed.  The order  of the Division Bench unless set aside in appeal to this Court, was  binding  and conclusive in all  subsequent  proceedings between the parties.  The principle of res judicata is  also applicable to criminal proceedings and it is not permissible in  the subsequent stage of the same proceedings or in  some other  subsequent  proceedings to convict a  person  for  an offence  in respect of which an order for his acquittal  has already  been recorded.  The plea of autrefois acquit  as  a bar  to prosecution embodied in section 403 of the  Code  of Criminal  Procedure  is  based  upon  the  above   wholesome principle. 310 In  the case of Sambasivam v. Public Prosecutor, Federal  of Malaya(1), Lord MacDermott observed:               "The   effect  of  a  verdict   of   acquittal

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             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 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." "The  above observations were quoted with approval  by  this Court in the case of Pritam Singh v. State of Punjab(2).  We are,  therefore, of the opinion that the judgment  of  Jagat Narayan,  J.  in so far as he has convicted Bhagat  Ram  for offenses  under  sections 120B, 218 and 347  IPC  cannot  be sustained. The matter can also be looked at from another angle.   ’The, charge  under  section  120B IPC  related  to  ,  conspiracy between  Bhagat Ram and Ram Swaroop for extorting Rs.  2,000 as  illegal  gratification  from Niranjan  Dass.   When  Ram Swaroop was acquitted of the charge under section 120B  IPC, the  basis of the charge against Bhagat Ram  for  conspiracy between  him  and Ram, Swaroop disappeared.  It is  not  the case  of the prosecution that Bhagat Ram bad conspired  with another  person  and even though the identity of  the  other person has not been established.  Bhagat Ram would still  be guilty  for  the  offence under section 120B  IPC.   On  the contrary,  the case of the prosecution was that  Bhagat  Ram had  conspired  with  Ram Swaroop to  extort  Rs.  2,000  as illegal gratification from Niranjan Dass.  Once Ram  Swaroop was   acquitted  in  respect  of  the  charge  relating   to conspiracy,  the  charge against Bhagat Ram  for  conspiracy must necessarily fall to the ground. So  far  as the State appeal against the acquittal  of  Rain Swaroop  is  concerned, we find that  there  are  concurrent findings  of  the trial court and the High  Court  that  the evidence on record had failed to prove that he was guilty of offenses  under  sections 120B and 165A IPC.   Nothing  has, been brought to our notice at the (1) [1950] A.C. 458. (2) [1956] S.C.R. 415. 311 hearing of the appeal as may justify interference with those concurrent   findings  by  a  fresh  appraisement  of   that evidence.   We  are, therefore, of the view that  the  State appeal against the acquittal of Ram Swaroop is liable to  be dismissed. As  regards  the conviction of Bhagat Ram  for  the  offence under  section  161  IPC,  we  find  that  it  is  not   the prosecution  case  that  Bhagat  Ram  had  made  any  demand directly   to   Niranjan  Dass  for   payment   of   illegal gratification.   On the contrary, the High Court found  that Bhagat  Ram  had not demanded bribe directly  from  Niranjan Dass.  The case set up by the prosecution is that Bhagat Ram attempted to obtain illegal gratification from Niranjan Dass through the instrumentality of Ram Swaroop.  In view of  the acquittal of Ram Swaroop, it is not possible to maintain the conviction  of  Bhagat Ram.  The acquittal  of  Ram  Swaroop

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would  necessarily lead to the conclusion that the  prosecu- tion  allegation about Ram Swaroop having made a  demand  of illegal gratification from Niranjan Dass for Bhagat Ram  has not  been proved.  The case, in the  circumstances,  against Bhagat  Ram  for asking for bribe through Ram  Swaroop  must consequently  fail.   It  would indeed  be  incongruous  and inconsistent  to  acquit  Ram Swaroop,  for  offenses  under sections 165A and 120B IPC and, at the same time, to convict Bhagat Ram for the offence tinder section 161 IPC for asking for bribe from Niranjan Dass through the instrumentality  of Ram Swaroop. We,  therefore,  accept  the appeal of Bhagat  Ram  and  set aside  .his  conviction and acquit him.  The appeal  of  the State  of Rajasthan against the acquittal of Ram Swaroop  is dismissed. V.P.S.                         Appeal allowed. 312