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PETITIONER: KUNJILAL AND ANOTHER

       Vs.

RESPONDENT: THE  STATE OF MADHYA PRADESH.

DATE OF JUDGMENT: 08/10/1954

BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.

CITATION:  1955 AIR  280            1955 SCR  (1) 872

ACT: Criminal Procedure Code (Act V of 1898), s. 403 (1) and (2)- Appellants  convicted  for offences under ss.  392  and  332 I.P.C.  while exporting contraband goods-Previous  acquittal for  prosecution  under  s.  7  of  the  Essential  Supplies (Temporary   Powers)  Act,  1946  -Whether  a  bar  to   the subsequent trial for offences under ss. 392 and 332 I.P.C.

HEADNOTE: The  appellants were tried and convicted for offences  under ss. 392 and 332 of the Indian Penal Code committed when they were  exporting  certain essential supplies, the  export  of which  was prohibited and constituted an offence under s.  7 of the Essential Supplies (Temporary Powers) Act, 1946.   It was  contended that the appellants were  already  prosecuted for an offence under s. 70 the Essential Supplies (Temporary Powers) Act, 1.946, and though convicted by the  Magistrate, were acquitted by the Additional Sessions Judge, Sagar,  and on  the basis of that judgment which was not brought to  the notice  of the High Court the appellants who and  once  been tried for the same offence and acquitted could not be  tried again  under  the  provisions of  s.403(1),of  the  Code  of Criminal  Procedure  for the same offence nor  on  the  same facts  for  any other offence for which a  different  charge from the one made against them might have been made under s. 236 of the Code of Criminal Procedure or for what they might have  been convicted under s. 237 of the’ Code  of  Criminal Procedure. Held, that neither s. 236 nor s. 237 was applicable and that sub-section (2) of s. 403 of the Code of Criminal  Procedure was a; complete answer to the contention because the  appall ants  were  not tried for the same offence  as  contemplated under  s. 403(1) but for a distinct offence as  contemplated by sub-section (2). 873

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 73  of 1953.

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Appeal by Special Leave granted by the Supreme Court by  its Order  dated the 30th January, 1953, from the  Judgment  and Order  dated the 12th November, 1952, of the High  Court  of Judicature  at Nagpur in Criminal Revision No. 399  of  1951 arising out of the Judgment and Order- dated the 26th March, 1951,  of the Court of the Magistrate at Sagar  in  Criminal Case No. 44 of 1950. Y.   Kumar for the appellant. B.   Sen and I. N. Shroff for. the respondent. 1954.  October 8. The Judgment of the Court was delivered by  GHULAM  HASAN  J.-This  appeal under  article  136  of  the Constitution is filed against an order of the High Court  of Judicature at Nagpur, passed in revision under the following circumstances. The  two appellants, Kunjilal and.  Deopal, who  are  father and  son,  the latter being aged 17, were  prosecuted  under section 392 and section 332, Indian Penal Code, in the Court of  the  Magistrate, Sagar.  They were sentenced  under  the former  to  1  year’s rigorous imprisonment  and  under  the latter  to a fine of Rs. 500 each.  Their  convictions  were upheld on appeal but Kunjilal’s sentence was reduced to  six months  R.I. and Rs. 350 fine, while Deopal was  bound  over under section 562 of the Code of Criminal Procedure and  the sentence  of  imprisonment  was set  aside.   His  fine  was reduced  under section 332, Indian Penal Code, to  Rs.  250. They  carried  the matter further in revision  to  the  High Court but it was dismissed. It  appears  that the export of certain  essential  supplies such as rice and ghee was prohibited from Madhya Pradesh  to another  State and any person contravening  the  prohibition was  guilty of an offence under section 7 of  the  Essential Supplies (Temporary Powers) Act, 1946.  Three bullock  carts belonging  to the appellants and carrying bags of  rice  and tins  of ghee were crossing the river Dhasan on  the  Madhya Pradesh  and Uttar Pradesh border on 1st March, 1949.   Head Constable 874 Abdul  Samad  on  recieving information  reached  the  spot, seized  the prohibited goods and brought the carts  back  to Shahgarh  in Madhya Pradesh.  When they reached  the  jungle near Shahgarh the two appellants are alleged to have  beaten the Read Constable and taken away the property seized to the house  of  Paltu Bania at Bagrohi.   They  were  accordingly charged  under sections 332 and 392, Indian Penal Code,  for voluntarily  causing  hurt  to  a  public  servant  in   the discharge  of his duty as such public servant and  also  for robbing  him  of the goods seized by  him.   The  appellants denied  the offence.  They pleaded that the goods  were  not being  exported  to  Uttar Pradesh but  to  a  place  called Baraitha and that they did not beat the Head Constable.  The Magistrate  who  tried the appellants found  that  both  the offences  were proved against the appellants.   He  accepted the  prosecution  evidence both on the point of  beating  as well as on the point of exporting the contraband goods.  The medical  evidence  supported  the  prosecution  case.    The appellants  were  accordingly  convicted  and  sentenced  as stated above. The   learned  Additional  Sessions  Judge,  Sagar,   while. agreeing  with the findings of the Magistrate further  found that  the story that the carts were being taken to  Baraitha which  is  in  Madhya  Pradesh was false  as  the  route  to Baraitha  did not pass through the Dhasan river but  lay  in quite  a  different direction.  He, however, held  that  the carts  were  caught at the other bank of  the  river  Dhasan after  they  had crossed the Madhya Pradesh border  but  the

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seizure was nevertheless legal.  This finding was sought  to be made capital of in revision and it was contended that the seizure took place beyond the border of the State of  Madhya Pradesh  and  was  therefore  illegal.   Upon  the  question whether  the carts were within the limits of Madhya  Pradesh State when they were actually apprehended there was evidence which was accepted that the carts were seized when they were in  the  mid-stream  and the  cart-men  requested  the  Head Constable  to let them take the carts on the other  side  of the  river  so  that they may have their  meals.   This  was allowed  and after they had finished their meals, the  carts were brought back.  Upon 875 this  evidence  it  was held that the  carts  were  captured before  they  had crossed the Uttar Pradesh border  and  the seizure  was  in the circumstances legal  and  proper.   The convictions  were maintained but the sentences were  reduced as already stated. In  a Special Leave to Appeal under article 136, it  is  not open  to the appellants to re-agitate questions of fact  and ask the Court to disturb the findings of fact arrived at  by the Courts below.  Those findings must therefore be accepted as binding.  It was urged that there was absence of mens rea which it is necessary to establish under section 392.  It is contended  that the appellants honestly believed  that  they were taking the goods to a place within the State of  Madhya Pradesh  when  they  were caught in  the  mid-stream.   This conclusion  is,  however, clearly negatived by  the  finding that  the route which the appellants had chosen was not  the route which led to Baraitha or any other place within Madhya Pradesh State but actually led to Uttar Pradesh. It  was  also  contended that the  appellants  were  already prosecuted  for an offence under section 7 of the  Essential Supplies  (Temporary  Powers) Act, 1946, for  exporting  the contraband  goods  and although they were convicted  by  the Magistrate  they were acquitted on appeal by the  Additional Sessions  Judge, Sagar, on October 31, 1952.  It  is  argued upon the strength of this judgment which was admittedly  not brought  to the notice of the High Court that under  section 403(1) of the Code of Criminal Procedure, the appellants who had once been tried for the offence and acquitted could  not 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 them might have been made under section 236 or  for which they might have been convicted  under  section 237.   Neither  section 236 which deals with  a  case  where there is a doubt as to which offence has been committed  nor section 237 which entitles the Court to convict a person  of an  offence which he is shown to have committed although  he was  not  charged  with it,  applies.   Sub-section  (2)  of section 403 in our opinion furnishes a complete answer 876 to the contention raised on behalf of the appellants.   That sub-section reads: "  403 (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, subsection (1)." The appellants were not tried again for the same offence  as contemplated under section 403(1) but for a distinct offence as  contemplated  by sub-section (2).  It is  true  that  in order  to  sustain the charge under sections  332  and  392, Indian  Penal Code, the Court had to. consider  whether  the seizure  was legal and was made by a public servant  in  the discharge  of his duty but once that was found  against  the

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appellants -the further question to be determined was as  to whether  they  committed  the offence of  robbing  the  Head Constable  of  the goods lawfully seized  and  whether  they voluntarily  caused hurt to him while he was acting  in  the discharge  of  his duties as a public  servant.   Upon  both these points the finding of the Courts below is  concurrent. We  hold that there is no substance in this contention.   We accordingly dismiss the appeal. Appeal dismissed.