05 April 1957
Supreme Court
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THE STATE OF MADHYA PRADESH Vs VEERESHWAR RAO AGNIHOTRY

Bench: DAS, SUDHI RANJAN (CJ),IMAM, SYED JAFFER,DAS, S.K.,MENON, P. GOVINDA,SARKAR, A.K.
Case number: Appeal (crl.) 130 of 1954


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PETITIONER: THE STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: VEERESHWAR RAO AGNIHOTRY

DATE OF JUDGMENT: 05/04/1957

BENCH: MENON, P. GOVINDA BENCH: MENON, P. GOVINDA DAS, SUDHI RANJAN (CJ) IMAM, SYED JAFFER DAS, S.K. SARKAR, A.K.

CITATION:  1957 AIR  592            1957 SCR  868

ACT:   Autrefois  acquit--Trial for offences under s. 409 of  the Indian  Penal  Code  and  s.  5(2)  of  the  Prevention   of Corruption Act--Acquittal of charge, under s.  5(2)--Whether conviction  under s. 409 barred--Code of Criminal  Procedure s.  403--Constitution of India Art.  20(2)--General  Clauses Act s. 26.

HEADNOTE:   The  accused  was tried by a Special  Judge  for  offences under  s.  409 Of the Indian Penal Code and S. 5(2)  of  the Prevention of Corruption Act.  He was convicted under S. 409 but the judge held that the accused could not be tried under s.  5(2)  as  there had been no investigation  by  a  police officer  not  below the rank of a Deputy  Superintendent  of Police.   Upon appeal by the accused against the  conviction under  s.  409,  the High Court  applying  the  doctrine  of autrefois acquit held that the order of the judge in respect of  the charge under s. 5(2) was tantamount to an  acquittal for  that offence and on the same facts no conviction  could be had under S. 409 :    Held, that the offences under S. 409 of the Indian  Penal Code  and under S. 5(2) of the Prevention of Corruption  Act were  distinct and separate and there could be no  objection to  a trial and conviction under s. 469 even if the  accused had been acquitted under S. 5(2).    Om Prakash Gupta v. The State Of U.P., [1957] S.C.R. 423, applied.    Section  403(1) of the Code of Criminal Procedure has  no application  where  there  is only  one  trial  for  several offences,  of some of which the accused person is  acquitted though  convicted  of one.  Article 20 of  the  Constitution also does not apply where the accused had not already  been, tried:  and  acquitted for the same offence  in  an  earlier trial, 869 Where there are two alternate charges in the same trial, the fact  that the accused is acquitted of one of them will  not prevent the conviction on the other.

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JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos. 130 and 131 of 1954. Appeals  by special leave from the judgment and order  dated September  11, 1953, of the former Madhya Bharat High  Court in Appeals Nos. 42 and 43 of 1953. Shiv Dayal and R. H. Dhebar, for the appellant. B. C. Misra, amicus curiae, for the respondent. 1957.  April 5. The Judgment of the Court was delivered by   GOVINDA MENON J.-The State of Madhya Bharat, G which after November 1, 1956, had become merged in the present State  of Madhya  Pradesh, had obtained special leave from this  court on April 11, 1954, to appeal against the judgment and  order of  acquittal passed in favour of the respondent herein,  by the  High Court of Judicature of Madhya Bharat on  September 11,  1953, in two consolidated Criminal Appeals Nos. 42  and 43  of 1953, by the identical appellant before  that  court. The  question for decision in these two appeals is  how  far the High Court was justified in ordering the acquittal.   The respondent herein was a Tax-Collector in the Municipal Committee  of  Lashkar, Gwalior, and was prosecuted  in  the court  of  the  City  Magistrate  and  Additional   District Magistrate,  Lashkar,  firstly by means of a  challan  dated October 23, 1951, for offences under ss. 468, 477-A and  409 of  the Indian Penal Code and s. 5 (2) of the Prevention  of Corruption Act II of 1947, in that he misappropriated a  sum of more than Rs. 7,000, entrusted to him in the capacity  of Tax Collector, and during the course of the said transaction committed  various  offences.   On July 4,  1952,  a  second complaint was filed against him in the same court under  the identical sections for having misappropriated in 1950 a  sum of  Rs.  3,500 in all under  similar  circumstances.   While these  two  complaints were pending in the trial  court,  on July 28, 1952, the Criminal 112 870 Law  Amendment Act (Act No. 46 of 1952) came into force  and by s. 6 of that statute, the State Government was authorised to appoint a Special Judge for the trial of an offence under sub-s. (2) of s. 5 of the Prevention of Corruption Act 11 of 1947.   Section  7  of  the  same  statute  laid  down  that notwithstanding   any.  thing  contained  in  the   Criminal Procedure  Code,  or  any other law for the  time  being  in force,  an  offence  under s. 5 (2)  of  the  Prevention  of Corruption  Act  could  be tried only by  a  Special  Judge, appointed  under  s. 6 of the Criminal  Law  Amendment  Act. Sub-cl.  (b)  of  s. 7 laid down that when  trying  a  case, triable  exclusively by a Special Judge under this  statute, he may also try any other offence with which the accused may under the Code of Criminal Procedure, be charged at the same trial.   The last section of the Criminal Law Amendment  Act aforesaid provided that all cases triable by a Special Judge under  s. 7, which immediately :before the  commencement  of the  Act were pending before any Magistrate, shall  on  such commencement  be  forwarded for trial to the  Special  Judge having jurisdiction over such cases.  In accordance with the above-mentioned provisions of the statute, the cases pending before   the   City  Magistrate  and   Additional   District Magistrate,  Lashkar,  were transferred to a  Special  Judge constituted  for the purpose before whom they were  numbered as  Case  No.  3  of 1953 and No.  6  of  1953.   After  the prosecution  evidence  was  over, on  March  10,  1953,  the

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Special   Judge  framed  charges  under  all  the   sections complained  against.   By separate judgments dated  June  5, 1953,  the Special Judge found the respondent guilty  of  an offence under s. 409 of the Indian Penal Code and  sentenced him to rigorous imprisonment for three years.  He,  however, passed an order of acquittal under ss. 468 and 477-A, of the Indian Penal Code.  As regards the charge under s. 5 (2)  of Act  II of 1947, the learned Special Judge was of  the  view that  since  the  provisions of sub.s. (4) of s.  5  of  the Prevention  of Corruption Act to the effect that  no  police officer  below the rank of Deputy Superintendent  of  Police shall investigate any offence punishable under sub-s. (2) 871 of s. 5 of the Prevention of Corruption Act without an order of  a 1st Class Magistrate, had not been complied with,  the foundation   for  preferring  a  complaint  had   not   been established  and, therefore, there was an  illegality  which affected the jurisdiction of the court to try the case,  the result  being that the accused could not be tried  for  that offence.  Such being the case, no formal order of  acquittal was passed by the trial court.   Aggrieved  by the convictions under s. 409 of  the  Indian Penal Code, the respondent preferred two appeals to the High Court  of  Madhya  Bharat which were  consolidated  by  that court,  and  by a common judgment that  court  applying  the doctrine of autrefois acquit held that when once on the same facts the trial Judge found that the respondent could not be found guilty of an offence under s. 5 (2) of the  Prevention of  Corruption  Act, it was tantamount to an  acquittal  for that offence in which case no conviction could be had  under s.  409  of  the Indian Penal  Code.   The  respondent  was, therefore,  acquitted.  As mentioned already, the State  has been  granted special leave to appeal against the orders  of acquittal.   The  correctness of the conclusion of the High  Court  has been  challenged  in more ways than one by  the  appellant’s counsel.  Firstly, it is argued that the offence under s.  5 (2)  of the Prevention of Corruption Act and that  under  s. 409  of  the Indian Penal Code, are not the same,  and  such being the case, granting that the order of the Special Judge amounted to an acquittal under s. 5 (2) of the Prevention of Corruption  Act, still that would not bar the conviction  of the  respondent  under  s. 409 of  the  Indian  Penal  Code. Secondly,  it  is pointed out that when at  the  same  trial there  are two alternative charges like those with which  we are now concerned, acquittal of the accused under one charge is no impediment to his conviction on the other; and  lastly it  is contended that any defect in the investigation  would not amount to an illegality which would invalidate the trial and conviction if the proceedings culminate that way. 872 This  court  has recently held in Om Prakash  Gupta  v.  The State  of U. P.(1), that the offence of criminal  misconduct punishable  under s. 5 (2) of the Prevention  of  Corruption Act  II  of  1947 is not identical in  essence,  import  and content  with  an offence under s. 409 of the  Indian  Penal Code.   The offence of criminal misconduct is a new  offence created  by  that  enactment  and  it  does  not  repeal  by implication or abrogate s. 409 of the Indian Penal Code.  In the common judgment in those appeals the conclusion has been expressed in the following words:-  "Our  conclusion,  therefore, is that the  offence  created under  s.  5(1)(c) of the Prevention of  Corruption  Act  is distinct and separate from the one under S. 405 I.P.C.  and, therefore,  there can be no question of s.5(1)(c)  repealing

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s. 405 I.P.C."   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 a. 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.  Section 403(1) of the  Criminal  Procedure Code only prohibits a subsequent trial for the same offence, or  on  the  same facts for any other offence  for  which  a different charge from the one made against an accused person might have been made under s. 236 of the Criminal  Procedure Code, or for which he might have been convicted under s. 237 when the earlier conviction or acquittal for such an offence remains  in  force.   It is obvious that s.  403(1)  has  no application  to the facts of the present case,  where  there was  only one trial for several offences, of some  of  which the  accused person was acquitted while being  convicted  of one.   On this ground alone the order of the High  Court  is liable to be set aside.  The High Court also relied on  Art. 20  of the Constitution for the order of acquittal but  that Article   cannot  apply  because  the  respondent  was   not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the  (1) [1957] S.C.R.423. 873 well-known maxim " Nemo debet bis vexari, si constat  curice 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. The  next argument on behalf of the appellant is that  where there are two alternate charges in the same trial, the  fact that  the  accused  is acquitted of one of  them,  will  not prevent  the conviction on the other, is also  well-founded. Section  26 of the General Clauses Act can be called in  aid in  support  of this proposition.  There is no  question  of double jeopardy.  Section 26 runs as follows:  "Provisions  as  to offences punishable under two  or  more enactments: 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."   We are, therefore, of the opinion that the learned Judge’s view on this aspect of the case is also unsound.   In  view of what has been stated above, it is  unnecessary to deal with the last contention of the learned counsel  for the appellant except merely to state that the Special  Judge had jurisdiction to try the accused person under s. 7 of the Prevention of Corruption Act, 1947. The  result  is that the appeals succeed, the order  of  the High Court acquitting the respondent of an offence under  s. 409  of the Indian Penal Code is set aside and  the  appeals are  remanded  to the High Court of Madhya Pradesh  for  re- hearing on the merits. 874