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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: S.   L. APTE & ANOTHER

DATE OF JUDGMENT: 09/12/1960

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA DAS, S.K. SARKAR, A.K. MUDHOLKAR, J.R.

CITATION:  1961 AIR  578            1961 SCR  (3) 107  CITATOR INFO :  R          1965 SC  87  (6)  R          1965 SC 682  (11)  F          1988 SC1106  (7,8)  R          1989 SC   1  (8)

ACT: Double  Jeopardy-Rule-"Same  offence"-Test-Constitution   of India, Art. 20(2)-General Clauses Act, 1897 (10 Of 1897), s. 26 -Indian Penal Code, 1860 (XLV of 1860), s.  409-Insurance Act, 1938 (IV Of 1938), s. 105.

HEADNOTE: By Art. 20(2) of the Constitution "No person shall be prose- cuted and punished for the same offence more than once." Section 26 of the General Clauses Act, 1897, provides, "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  those enactments, but shall not be liable to be punished twice for the same offence." The  respondents  were both convicted and sentenced  by  the Magistrate under s. 409 Of the Indian Penal Code and S.  105 Of  the Insurance Act.  The Sessions judge on appeal  upheld the conviction and sentence under S. 409 of the Indian Penal Code, but set aside the conviction and sentence under s. 105 of the Insurance Act on the ground that no sanction under s. 107  of the Insurance Act had been obtained.   Sanction  was thereafter obtained and a fresh complaint was filed  against the  respondents  under s. 105 of the  Insurance  Act.   The trial ended in an acquittal by the Magistrate who held  that Art. 20(2) Of the Constitution and also s. 26 of the General Clauses Act were a bar to conviction.  The State appealed to the High Court against the 108 order of acquittal but the appeal was dismissed.  On further appeal by the State, Held,  that the crucial requirement to attract Art. 202)  Of the  Constitution  is  that  the  two  offences  should   be identical.  it  is,  therefore,  necessary  to  analyse  and compare  the  ingredients of the two offences, and  not  the

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allegations made in the two complaints, to see whether their identity is established. So  judged,  there  can be no doubt that  in  spite  of  the presence of    certain common elements between the two,  the offences under S.   409 of the Indian Penal Code and S., 105 of  the  Insurance Act  are distinct in  their  ingredients, content and scope and cannot be said to be identical. Om  Prakash Gupta v. State of U. P., [1957] S.C.R.  423  and State  of  Madhya   Pradesh v. Veereshw  ar  Rao  Agnihotry, [1957] S.C.R. 868, referred to. A  similar  view  of the scope of the  rule  as  to  double- jeopardy has always been taken by the American Courts. Albrecht  v. United States, (1927) 273 U. S. 1: 71  Law  Ed. 505, referred to. In S. 26 of the General Clauses Act also the emphasis is not on  the  facts  alleged in the two  complaints  but  on  the ingredients of the two offences charged. This  construction of Art. 20(2) of the Constitution and  S. 26  of the General Clauses Act, 1897, is precisely  in  line with s. 403(2) of the Code of Criminal Procedure. Consequently,  it  could not be said, in the  instant  case, that  the respondents were being sought to be  punished  for the  same offence so as to attract either Art. 20(2) Of  the Constitution or S.  26 of the General Clauses Act, 1897.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION:    Criminal Appeal No.  63 of 1957. Appeal  from the judgment and order dated March 2, 1956,  of the Bombay High Court in Cr.  A. No. 1258 of 1955. H.   R. Khanna and R. H. Dhebar, for the appellant. N.   S. Bindra, for the respondents (Amicus curiae). 1960.   December 9. The following Judgment of the Court  was delivered by AYYANGAR, J.-This appeal on a certificate under Art.  134(1) of  the  Constitution granted by the High Court  of  Bombay, principally  raises  for consideration the  application  and scope  of  Art. 20(2) of the Constitution and  s.26  of  the General Clauses Act. 109  The  facts  necessary for the appreciation  of  the  points involved  in this appeal are few and may be briefly  stated. The two respondents-S.  L. Apte and Miss Dwarkabai Bhat-were respectively   the  Managing  Director,  and  the   Managing Director of the Women’s department, of an insurance  Company by  name  ’The Long Life Insurance Company’  which  had  its headquarters  at  Poona.   A  power  of  attorney  had  been executed by the company in favour of the first respondent in June,  1942,  under  which he was  vested  with  the  power, control and possession inter alia of the moneys belonging to the  company  with a view to have them  invested  in  proper securities.  The second respondent as Manaaing Director also acted  under  another  power of  attorney  executed  by  the company in her favour in or about June, 1942, and by  virtue thereof  she  was assisting the first  respondent  in  main- taining the accounts of the company.  While the  respondents were thus functioning, an audit conducted in 1952  disclosed that considerable sums of money amounting to over Rs. 55,000 were  shown  as  cash balances with  the  first  respondent. Further  enquiries made by the Directors showed that  moneys aggregating  to over Rs. 95,000 had from time to  time  been withdrawn from the company by the first respondent with  the assistance   and   sanction  of   the   second   respondent,

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professedly  for  the expenses of the  company.   Among  the papers  of the company was a voucher dated August  9,  1952, evidencing  the  withdrawal  of this  amount  by  the  first respondent  and  signed  by  him  and  this  also  bore  the signature of the second respondent in token of her sanction. The respondents, however, could furnish no proper account of the legitimate expenses of the company for which the  amount was purported to be taken. Both  the  respondents  were  thereupon  prosecuted  for  an offence  under s. 409 of the Indian Penal Code and also  for an  offence  under  s. 105 of the Indian  Insurance  Act  in Criminal Case 82 of 1953.  The learned Magistrate  convicted and  sentenced  both the respondents for both  the  offences with  which  they were charged.  The  respondents  thereupon filed 110 appeals  to the Court of the Sessions Judge, Poona  and  the learned  Sessions  Judge, by his order dated  May  3,  1954, while   confirming  the  conviction  and  sentence  on   the respondents under s. 409 of the Indian Penal Code set  aside their  conviction under s. 105 of the Indian Insurance  Act. The  reason  for  the latter order was the  finding  of  the learned Sessions Judge that the sanction required by s.  107 of the Indian Insurance Act which was a prerequisite for the initiation  of  the prosecution under s. 105  had  not  been obtained  before the complaint in respect thereof  had  beed filed.   The  conviction and sentence under s.  409  of  the Indian  Penal Code which had been affirmed by  the  Sessions Judge in both the cases have now become final. Subsequetly  the Insurance Company obtained the sanction  of the  Advocate-General of Bombay under s. 107 of  the  Indian Insurance  Act  and filed a complaint in the  Court  of  the Judicial Magistrate, Poona, on January 18, 1955, against the two respondents charging each of them with an offence  under s. 105 of the Indian Insurance Act.  The Magistrate took the case  on file and directed the issue of process.   Thereupon the   two  respondents  made  an  application   before   the Magistrate  on  March 22, 1955, praying that  the  complaint against  them may be dismissed as being barred by s.  403(1) of the Criminal Procedure Code, by reason of their  previous conviction by the Magistrate for the same offence under  the Insurance Act and their acquittal in respect thereof by  the Sessions   Judge,  pleading  in  addition  that   when   the conviction by the Magistrate stood, they had even  undergone a  portion of the sentence imposed.  The learned  Magistrate overruled this plea on the ground that the acquittal of  the respondents was not on the merits of the case, but for  lack of  sanction under s. 107 of the Indian Insurance Act  which rendered  the Magistrate without jurisdiction  to  entertain the  complaint.   The  trial was  then  proceeded  with  and evidence was led.  But finally the Magistrate acquitted  the respondents   on   the  ground  that  Art.  20(2)   of   the Constitution and s. 26 of the General Clauses Act were a bar to their 111 conviction  and punishment.  The State of  Bombay  thereupon filed  an  appeal  to the High Court under  s.  417  of  the Criminal  Procedure Code.  The appeal was dismissed  by  the learned  Judges  who however granted a  certificate  on  the strength of which this appeal has been preferred. As the prosecution against the respondents under s.    105 of the Insurance Act has been held to be barred by     reason of   the   provisions  contained  in  Art.  20(2)   of   the Constitution and s. 26 of the General Clauses Act, it  would be convenient to set out these provisions before entering on

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a discussion of their content and scope. Article 20(2) of the Constitution runs:               "No  person shall be prosecuted  and  punished               for the same offence more than once."               Section 26 of the General Clauses Act enacts:               "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   those               enactments,  but  shall not be  liable  to  be               punished twice for the same offence." As  the application of these two  provisions is  conditioned by  the identity of the two offences which form the  subject of  the  prosecution  or  prosecutions,  we  might  as  well reproduce  the  relevant  provisions  constituting  the  two offences,  viz., s. 409 of the Indian Penal Code and s.  105 of the Indian Insurance Act:               "409.  Whoever, being in any manner  entrusted               with  property,  or  with  any  dominion  over               property  in his capacity of a public  servant               or  in  the way of his business as  a  banker,               merchant,  factor, broker, attorney or  agent,               commits criminal breach of trust in respect of               that   property,   shall  be   punished   with               imprisonment for life, or with imprisonment of               either description for a term which may extend               to  ten  years, and shall also  be  liable  to               fine." Criminal  breach  of  trust referred to in  the  section  is defined in s. 405 of the Indian Penal Code in these terms:               "405.  Whoever, being in any manner entrusted               112               with  property,  or  with  any  dominion  over               property,   dishonestly   misappropriates   or               converts  to  his own use  that  property,  or               dishonestly uses or disposes of that  property               in   violation   of  any  direction   of   law               prescribing the mode in which such trust is to               be  discharged.  or  of  any  legal  contract,               express or implied, which he has made touching               the  discharge  of  such  trust,  or  wilfully               suffers  any  other person so to  do,  commits               ’criminal breach of trust’." The  offence  created  by the Indian  Insurance  Act  is  as follows:               "105.   (1)’Any  director,   managing   agent,               manager  or  other officer or employee  of  an               insurer  who wrongfully obtains possession  of               any property of the insurer or having any such               property   in   his   possession    wrongfully               withholds   it  or  wilfully  applies  it   to               purposes   other  than  those   expressed   or               authorised by this Act shall on the  complaint               of  the  Controller  made  after  giving   the               insurer not less than fifteen days’ notice  of               his  intention,  or, on the complaint  of  the               insurer  or  any member or  any  policy-holder               thereof,  be  punishable with fine  which  may               extend  to  one  thousand rupees  and  may  be               ordered  by  the Court trying the  offence  to               deliver up or refund within a time to be fixed               by  the  Court any  such              property               improperly obtained or wrong- fully   withheld               or  wilfully  misapplied  and  in  default  to               Buffer imprisonment for a period not exceeding

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             two years.               (2)This section shall apply in respect of a               provident society as defined in Part III as it               applied in respect of an insurer." Before addressing ourselves to the arguments urged before as by  the  Yearned  Counsel  for the  appellant  State  it  is necessary to set out one matter merely to put it aside.  The entire argument on behalf of the State before the High Court proceeded  on  denying that the order of  a  Criminal  Court passed  under s. 105 of the Indian Insurance  Act  directing the accused to "deliver up or refund...... any such property improperly  withheld or wilfully misapplied" was a  "punish- ment" within either Art. 20(2) of the Constitution or 113 s. 26 of the General Clauses Act.  The learned Judges of the High Court rejected this contention.  Though learned Counsel for   the  appellant  originally  submitted  that   he   was contesting  this conclusion of the High, Court, he  did  not address  us  any  argument under that head  and  we  do  not therefore  find  it  necessary to dwell on  this  point  any further, but shall proceed on the basis that a direction  by the  Magistrate to replace the moneys of the insurer with  a penalty  of imprisonment in default of compliance  therewith was a "punishment" within Art. 20(2) of the Constitution and s. 26 of the General Clauses Act. Turning  to the main points urged before us, we may  premise the discussion by stating that it was not disputed before us by  learned  Counsel for the State, as it was  not  disputed before  the  learned  Judges of the  High  Court,  that  the allegations  to  be  found  in  the  original  complaint  in Criminal  Case 82 of 1953 on which the conviction  under  s. 409  of the Indian Penal Code was obtained were  similar  to the allegations to be found in the complaint under s. 105 of the Indian Insurance Act.  It should, however, be  mentioned that there was not any complete identity in the statement of facts  which set out the acts and omissions on the  part  of the  respondents  which were alleged to constitute  the  two offences-s.  409 of the Indian Penal Code and s. 105 of  the Insurance  Act.   For instance, in the complaint  which  has given rise to this appeal, the crucial paragraphs  detailing the allegations are 12 and 13 of the complaint which run:               "12.  The company submits that the accused has               thus  wrongfully  obtained possession  of  Rs.               95,000   or  having  that  property   in   his               possession wrongfully withheld it or  wilfully               applied  it  to  purposes  other  than   those               expressed or authorised by the      Insurance               Act, 1938, and committed an offence on   the               9th August, 1952, under Sectionof the  Insurance               Act, 1938."               "13. The company through their Solicitorscalled               upon  the  accused  to  explain  his   conduct               within7               15               114               days  from  the receipt of  the  letter.   The               accused  has failed and neglected to reply  to               the said letters." It is obvious that on these allegations alone the offence of criminal  breach of trust could not be established  as  they lack  any reference to any entrustment or to  the  dishonest intent  which  are the main ingredients of  the  offence  of criminal  breach  of  trust.  But to this  point  about  the difference  in the ingredients of the two offences we  shall revert a little later.

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Even  assuming that the allegations to be found in  the  two complaints  were identical, the question,  however,  remains whether  to attract the ban imposed by either Art. 20(2)  of the Constitution or s. 26 of the General ClausesAct  on  a second punishment, it is  sufficient that the allegations in the two complaints are substantiallythe same or  whether it is necessary further that theingredients         which constitute the two offences should be identical. We shall first take\ up for consideration Art. 20(2) of  the Constitution whose terms we shall repeat:               "20.  (2)  No person shall be  prosecuted  and               punished for the same offence more than once." To  operate  as  a  bar  the  second  prosecution  and   the consequential  punishment thereunder, must be for "the  same offence".  The crucial requirement therefore for  attracting the  Article is that the offences are the same,  i.e.,  they should  be  identical.  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 the ingredients of the two offences  and see  whether their identity is made out.  It would  be  seen from a comparison of s. 105 of the Insurance Act and a.  405 of Indian Penal Code (a. 409 of the Indian Penal Code  being only  an  aggravated form of the same offence)  that  though some of the necessary ingredients are common they differ  in the following: (1)Whereas  under  a.  405 of the Indian  Penal  Code  the accused must be "entrusted" with property or with  "dominion over that property", under s. 105 of 115 the Insurance Act the entrustment or dominion over  property is  unnecessary it is sufficient if the  manager,  director, etc.  "obtains possession" of the property. (2)The offence of criminal breach of trust (s. 405 of  the Indian  Penal  Code)  is not committed  unless  the  act  of misappropriation  or  conversion  or  "the  disposition   in violation of the law or contract", is done with a  dishonest intention,  but  s. 105 of the Insurance Act  postulates  no intention and punishes as an offence the mere withholding of the  property-whatever be the intent with which the same  is done,  and  the  act of application of the  property  of  an insurer  to purposes other than those authorised by the  Act is similarly without reference to any intent with which such application   or   misapplication   is   made.    In   these circumstances  it  does not seem possible to  say  that  the offence  of criminal breach of trust under the Indian  Penal Code  is the "same offence" for which the  respondents  were prosecuted  on  the complaint of the company  charging  them with an offence under s. 105 of the Insurance Act. This  aspect of the matter based on the two  offences  being distinct  in  their ingredients, content and scope  was  not presented to the learned Judges of the High Court,  possibly because   the  decisions  of  this  Court   construing   and explaining the scope of Art. 20(2) were rendered later.   In Om  Prakash Gupta v. State of U.P. (1) the accused, a  clerk of a municipality had been convicted of an offence under  s. 409 of the Indian Penal Code for having misappropriated sums of money received by him in his capacity as a servant of the local  authority  and the conviction had  been  affirmed  on appeal,  by the Sessions Judge and in revision by  the  High Court.   The plea raised by the accused before this  Court, in  which the matter was brought by an appeal  with  special leave,  was  that s. 409 of the Indian Penal Code  had  been

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repealed by implication by the enactment of sub-ss. (1)  (c) and (2) of s. 5 of the Prevention of Corruption Act  because the  latter dealt with an offence of substantially the  same type.  This Court repelled that contention.  It (1)  [1957] S.C.R. 423. 116 analysed  the  ingredients  of the two  offences  and  after pointing  out the difference in the crucial  elements  which constituted the offences under the two provisions, held that there  was  no repeal of s. 409 of the  ’Indian  Penal  Code implied by the constitution of a new offence under the terms of the Prevention of Corruption Act.  It was the application of this decision and the ratio underlying it in the  context of  Art. 20(2) ,of the Constitution that is of relevance  to the present appeal.  The occasion for this arose in State of Madhya  Pradesh v. Veereshwar Rao Agnihotry (1).   The  res- pondent  was  a tax-collector under a municipality  and  was prosecuted  for  offences among others under s. 409  of  the Indian Penal Code and s 5(2) of the Prevention of Corruption Act  for misappropriation of sums ’entrusted to him as  such tax-collector.  By virtue of the provision contained in s. 7 of  the Criminal Law Amendment Act, XLVI of 1952,  the  case was transferred to a Special Judge who was appointed by  the State Government after the prosecution was commenced  before a Magistrate.  The Special Judge found the accused guilty of the  offence  under  s. 409 of the  Indian  Penal  Code  and convicted  him to three years’ rigorous imprisonment but  as regards  the  charge  under S. 5(2)  of  the  Prevention  of Corruption  Act, he acquitted the accused on the  ground  of certain  procedural  non-compliance  with the  rules  as  to investigation  prescribed  by  the  latter  enactment.   The respondent   appealed  to  the  High  Court   against   this conviction  and  sentence under s. 409 of the  Indian  Penal Code and there urged that by reason of his acquittal in res- pect  of  the  offence under s. 5(2) of  the  Prevention  of Corruption  Act, his conviction under s. 409 of the  Indian, Penal  Code  could not also be maintained,  the  same  being barred by Art. 20(2) of the Constitution.  The High Court of Madhya Bharat accepted this argument and allowed the  appeal and the State challenged the correctness of this decision by an appeal to this Court.  Allowing the appeal of the  State, Govinda  Menon,  J., delivering the judgment  of  the  Court observed: (1)[1957] S.C.R. 868: 117               "This  Court has recently held in  Om  Prakash               Gupta v. The State of U.P. that the offence of               criminal  misconduct punishable under s.  5(2)               of  the  Prevention of Corruption Act,  11  of               1947, is not identical in essence, import  and               content  with an offence under s. 409  of  the               Indian  Penal  Code   In  view  of  the  above               pronouncement,  the view taken by the  learned               Judge of the, High Court that the two offences               are one and the same, is wrong, and if that is               so,  there can be no objection to a trial  and               conviction  under s. 409 of the  Indian  Penal               Code,   even  if  the  respondent   has   been               acquitted  of an offence under s. 5(2) of  the               Prevention of Corruption Act, II of 1947   The               High  Court  also  relied on Art.  20  of  the               Constitution  for the order of  acquittal  but               that  Article  cannot apply because  the  res-               pondent  was  not  prosecuted  after  he   had               already been tried and acquitted for the  same

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             offence  in an earlier trial  and,  therefore,               the  well-known maxim "Nemo debet bis  vexari,               si  constat curiae quod sit pro una  et  eadem               causa" (No man shall be twice punished, if  it               appears  to the court that it is for  one  and               the  same  cause) embodied in Art.  20  cannot               apply"  Before  leaving this part of the case we might  also  point out  that  a  similar view of the scope of the  rule  as  to double-jeopardy  has  always  been taken by  the  Courts  in America.  The words of the Vth Amendment where this rule  is to be found in the American Constitution are:               "Nor shall any person be subject, for the same               offence,  to be twice put in jeopardy of  life               or limb." and it will be noticed that there as               well,   the  ban  is  confined  to  a   second               prosecution   and  punishment  for  the   same               offence.   Willoughby after referring  to  the               words  quoted  in the  Fifth  Amendment  says:                             "Cases  may  occur in which the  same  act  ma y               render  the  actor  guilty  of  two   distinct               offences;  In  such cases the  accused  cannot               plead   the  trial  and  acquittal,   or   the               conviction  and punishment for one offence  in               bar  to  a conviction for the  other"(1).   In               Albrecht v.               (1)Constitution   of  the  United   States,               Vol.II.- p. 1158.,               118               United States (1) Brandeis, J., speaking for a               unanimous Court said:               "There  is  a claim of violation  of  the  Vth               Amendment   by   the  imposition   of   double               punishment.   This contention rests  upon  the               following  facts.  Of the nine, counts in  the               information four charged illegal possession of               liquor, four illegal sale and one  maintaining               a  common  nuisance.  The contention  is  that               there was double punishment because the liquor               which the defendants were convicted for having               sold is the same that they were convicted  for               having possessed.  But possessing and  selling               are  distinct  offences.   One  may  obviously               possess without selling; and one may sell  and               cause to be delivered a thing of which he  has               never   had  possession;  or  one   may   have               possession and later sell, as appears to  have               been  done  in this case.  The fact  that  the               person  sells  the liquor which  he  possessed               does  not render the possession and  the  sale               necessarily   a  single  offence.   There   is               nothing  in  the Constitution  which  prevents               Congress  from punishing separately each  step               leading  to the consummation of a  transaction               which  it has power to prohibit and  punishing               also the completed transaction." If,  therefore,  the  offences were  distinct  there  is  no question  of the rule as to double-jeopardy as  embodied  in Art. 20(2) of the Constitution being applicable. The  next point to be considered is as regards the scope  of s.  26  of  the General Clauses Act.  Though s.  26  in  its opening words refers to "the act or omission constituting an offence  under two or more enactments", the emphasis is  not on the facts alleged in the two complaints but rather on the

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ingredients  which constitute the two offences with which  a person  is  charged.  This is made clear by  the  concluding portion of the section which refers to "shall not be  liable to  be  punished  twice  for the  same  offence,".   If  the offences are not the same but are distinct, the ban  imposed by  this  provision also cannot be  invoked.   It  therefore follows that in the present case as the respondents are  not being sought to be punished for "the (1)  (1927) 273 TT.S. I: 71 Law.  Ed. 505.                             119 same  offence"  twice  but for two  distinct  offences  con- stituted or made up of different ingredients the bar of  the provision is inapplicable. In  passing, it may be pointed out that the construction  we have  placed on Art. 20(2) of the Constitution and s. 26  of the General Clauses Act is precisely in line with the  terms of s. 403(2) of the Criminal Procedure Code which runs:               "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, sub-section (1)." It  would  be noticed that it is because of  this  provision that  the  respondents  before us  were  originally  charged before  the  Magistrate  in Criminal Case 82  of  1953  with offences under s. 409 of the Indian Penal Code as well as s. 105 of the Indian Insurance Act. The  respondents in this case did not appear in  this  Court and as the appeal had to be heard ex parte Mr. N. S.  Bindra was requested to appear as amicus curiae to assist the Court at the hearing of the appeal.  We express our thanks to  him for the assistance he rendered. The  appeal is accordingly allowed and the judgment and  the order  of the High Court is set aside and the case  will  go back  to the Judicial Magistrate, Fourth Court,  Poona,  for being proceeded with according to law. Appeal allowed. Case remanded. 120