1. Petitioner who along with others, has been made an accused of Patna Harijan P.S. Case No.23 of 1998 registered under Sections 419, 420, 465, 467, 468, 471, 474/120B IPC and 3(1)(i)(iv)/3(2)(vii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has asked for quashing of the aforesaid FIR relating to his interest.
2. Opposite Party No.2, Ramesh Kumar Singh, Inspector of Police-cum-Officer-in-charge, Harijan Police Station, Patna has recorded his own fardbeyan on account of divulgences of fact that after getting forged and fabricated caste certificate of Scheduled Caste / Tribe the accused named therein including the petitioner got themselves admitted under quota so prescribed therefor at different medical colleges.
3. It has been contended on behalf of petitioner that arraying him as an accused in the present FIR is bad and contrary to spirit of the law because of the fact that the same happens to be hit by double jeopardy and is violative of Article 20(2) of the Constitution of India as well as Section 300 of the Cr.P.C. To support the same it has been submitted that an earlier occasion BDO, Ekangarsarai had instituted Hilsa P.S. Case No.160 of 1986 against the petitioner alleging that after creating forged caste certificate, got admitted in the medical college wherein charge sheet was submitted and on the basis thereof, petitioner had faced trial however acquitted on 16.03.1991 by the competent court. Therefore, subsequent prosecution for the same cause happens to be contrary to the spirit of law and, accordingly should be quashed.
4. Counter affidavit has been filed and taking into account the averments made therein, it has been submitted on behalf of learned Additional Public Prosecutor that instant prosecution happens to be legally permissible in the background of the fact that though allegation has been made in similar way but the case has been registered under different sections including Section 420 of the IPC wherein earlier prosecution was conducted.
5. The concept of double jeopardy originates on the principle of œautrefois acquit and autrefois convict.? The same has been elaborately dealt with by the HonŸble Apex Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat reported in (2012) 7 SCC 621, at page 628 :
œ9. The sole issue raised in this appeal is regarding the scope and application of the doctrine of double jeopardy. The rule against double jeopardy provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 300 CrPC; Section 26 of the General Clauses Act and Section 71 IPC.
10. Section 300(1) CrPC reads:
œ300. Person once convicted or acquitted not to be tried for same offence.”(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to 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 him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof.?
11. Section 26 of the General Clauses Act, 1897 reads:
œ26. Provision 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 offence.?
12. Section 71 IPC reads:
œ71. Limit of punishment of offence made up of several offences.”Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided.?
13. In Maqbool Hussain v. State of Bombay, the Constitution Bench of this Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the Customs Authorities and the gold seized from his possession was confiscated. Later on, a prosecution was launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947 (hereinafter called œthe FERA?) read with the relevant notification. In the background of these facts, the plea of autrefois acquit was raised seeking protection under Article 20(2) of the Constitution of India, 1950 (hereinafter called œthe Constitution?).
14. This Court in Maqbool Hussain held that the fundamental right which is guaranteed under Article 20(2) enunciates the principle of œautrefois convict? or œdouble jeopardy? i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.
15. The Constitution Bench of this Court in S.A. Venkataraman v. Union of India3 explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20(2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words œprosecuted? and œpunished? are to be taken not distributively so as to mean prosecuted or punished. Both the factors must coexist in order that the operation of the clause may be attracted.
16. In Om Parkash Gupta v. State of U.P.4 and State of M.P. v. Veereshwar Rao Agnihotri5 this Court has held that the prosecution and conviction or acquittal under Section 409 IPC do not debar trial of the accused on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content.
17. In Leo Roy Frey v. Supt., District Jail, proceedings were taken against certain persons in the first instance before the Customs Authorities under Section 167(8) of the Sea Customs Act and heavy personal penalties were imposed on them. Thereafter, they were charged for an offence under Section 120-B IPC. This Court held that an offence under Section 120-B IPC is not the same offence as that under the Sea Customs Act: (AIR p. 121, para 4)
œ4. ¦ The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.?
(emphasis added)
18. In State of Bombay v. S.L. Apte7 the Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2) of the Constitution, held: (AIR pp. 581 and 583, paras 13 and 16)
œ13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for žthe same offenceŸ. 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. ¦
* * *
16. The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to žthe act or omission constituting an offence under two or more enactmentsŸ, the emphasis is not on the facts alleged in the two complaints but rather on the 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 žshall not be liable to be punished twice for the same offenceŸ. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.?
(emphasis added)
19. In Roshan Lal v. State of Punjab8, the accused had caused disappearance of the evidence of two offences under Sections 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences under Section 201 IPC. It was held that neither Section 71 IPC nor Section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences under Section 201 IPC, though it would be appropriate not to pass two separate sentences. A similar view has been reiterated by this Court in Kharkan v. State of U.P.9
20. In Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra10, while dealing with the issue, this Court held: (AIR pp. 688-89, paras 11-12)
œ11. ¦ The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar v. State of Bombay. Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour. The present case relates to a different conspiracy altogether. The conspiracy in question was to lift the funds of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter. Therefore, it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, some of the facts proved to establish the Jupiter conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence.
¦
12. ¦ The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive is not an ingredient of an offence. The proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of Article 20(2) of the Constitution and, therefore, that article has no relevance to the present case.?
(emphasis added)
21. In State of A.P. v. Kokkiliagada Meerayya this Court while having regard to Section 403 CrPC, 1898, held: (SCC pp. 163-64, para 6)
œ6. The following important rules emerge from the terms of Section 403 of the Code of Criminal Procedure:
(1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the court trying the first offence was incompetent to try that other offence.
(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made.
(3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which resulted therefrom constituted a different offence, he may again be tried for that different offence arising out of the consequences, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.
(4) A person who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure.?
(emphasis added)
23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. (Vide Pritam Singh v. State of Punjab AIR 1956 SC 415, Manipur Admn. v. Thokchom Bira Singh AIR 1965 SC 87, Workmen v. Gujarat Electricity Board (1969) 1 SCC 266 and Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787.)
24. In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia18 wherein the accused were prosecuted under the Customs Act, 1962 (hereinafter referred to as œthe Customs Act?) and subsequently under the Gold (Control) Act, 1968, [hereinafter called as œthe Gold (Control) Act?] it was held that: (SCC p. 474, para 7)
œ7. ¦ the ingredients of the two offences are different in scope and content. The facts constituting the offence under the Customs Act are different and are not sufficient to justify the conviction under the Gold (Control) Act.?
(emphasis in original)
It was held that what was necessary is to analyse the ingredients of the two offences and not the allegations made in the two complaints.
25. In P.V. Mohammad Barmay Sons v. Director of Enforcement 1993 Supp (2) SCC 724 it was held: (SCC p. 732, para 11)
œ11. The further contention that under the Customs Act, 1962 for the selfsame contravention, the penalty proceedings terminated in favour of the appellant, is of little avail to the appellant for the reasons that the two Acts operate in different fields, one for contravention of FERA and the second for evasion of [excise] duty. The mere fact that the penalty proceedings for evasion of the [excise] duty had ended in favour of the appellant, does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application.?
(See also State of Bihar v. Murad Ali Khan (1988) 4 SCC 655, Union of India v. K.V. Jankiraman (1991) 4 SCC 109, State of T.N. v. Thiru K.S. Murugesan (1995) 3 SCC 273 and State of Punjab v. Dalbir Singh (2001) 9 SCC 212.
26. In A.A. Mulla v. State of Maharashtra (1996) 11 SCC 606 the appellants were charged under Section 409 IPC and Section 5 of the Prevention of Corruption Act, 1947 for making false panchnama disclosing recovery of 90 gold biscuits on 21-9-1969 although according to the prosecution case the appellants had recovered 99 gold biscuits. The appellants were tried for the same and acquitted. The appellants were also tried for the offence under Section 120-B IPC, Sections 135 and 136 of the Customs Act, Section 85 of the Gold (Control) Act and Section 23(1-A) of FERA and Section 5 of the Imports and Exports (Control) Act, 1947. The appellants filed an application before the Judicial Magistrate contending that on the selfsame facts they could not be tried for the second time in view of Section 403 of the Code of Criminal Procedure, 1898 (corresponding to Section 300 CrPC).
27. This Court held: (A.A. Mulla case (1996) 11 SCC 606, SCC pp. 613-14, para 22)
œ22. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the respective parties, it appears to us that the ingredients of the offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact situation and the enquiry for finding out facts constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature. ¦ Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC of 1898 as alleged by the appellants.?
(emphasis added)
28. In Union of India v. Sunil Kumar Sarkar (2001) 3 SCC 414, this Court considered the argument that if the punishment had already been imposed for court-martial proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20(2) of the Constitution. The Court explained that the court-martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the Court placed reliance upon its earlier judgment in R. Viswan v. Union of India (1983) 2 SCC 401.
29. In Union of India v. P.D. Yadav (2002) 1 SCC 405, this Court dealt with the issue of double jeopardy in a case where the pension of the official, who stood convicted by a Court Martial, had been forfeited. The Court held: (SCC p. 425, para 25)
œ25. ¦ This principle is embodied in the well-known maxim nemo debet bis vexari, (si constat curiae quod sit) pro una et eadem causa meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others. ¦ Offences such as criminal breach of trust, misappropriation, cheating, defamation, etc., may give rise to prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages, etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16(a) for forfeiting pension, a person is not tried for the same offence of misconduct after the punishment is imposed for a proven misconduct by the General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16(a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16(a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases.?
30. In State of Rajasthan v. Hat Singh (2003) 2 SCC 152 this Court held that as the offence of glorification of Sati under Section 5 of the Rajasthan Sati (Prevention) Act, 1987, is different from the offence of violation of prohibitory order issued under Section 6 thereof, the doctrine of double jeopardy was not attracted for the reason that even if the prohibitory order is promulgated, a subsequent criminal act even if it falls under Section 5 could not be covered under Section 6(3) of the said Act. Doctrine of double jeopardy is enshrined in Section 300 CrPC and Section 26 of the General Clauses Act. Both the provisions employ the expression œsame offence?.
31. Similar view has been reiterated by this Court in State of Haryana v. Balwant Singh (2003) 3 SCC 362, observing that there may be cases of misappropriation, cheating, defamation, etc. which may give rise to prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages, etc. Therefore, it is not always necessary that in every such case the provisions of Article 20(2) of the Constitution may be attracted.
32. In Hira Lal Hari Lal Bhagwati v. CBI, (2003) 5 SCC 257 this Court while considering the case for quashing the criminal prosecution for evading the customs duty, where the matter stood settled under the Kar Vivad Samadhan Scheme, 1998, observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy.
33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
34. In Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 while dealing with the proceedings under the provisions of the Foreign Exchange Regulation Act, 1973, this Court quashed the proceedings (by a majority of 2:1) under Section 56 of the said Act because adjudication under Section 51 stood finalised. This Court held: (SCC p. 598, para 38)
œ38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.?
The ratio of the aforesaid judgment is not applicable in this case for the reason that the proceedings under Section 138 of the NI Act are still sub judice as the appeal is pending and the matter has not attained finality.
35. The learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 wherein during the pendency of the proceedings under Section 138 of the NI Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to the abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case.
36. Same remained the position so far as the judgment in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703 is concerned. It has been held therein that once the conviction under Section 138 of the NI Act has been recorded, the question of trying the same person under Section 420 IPC or any other provisions of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.PC.?
So, from the aforesaid finding, it is evident that it is not the sameness of allegation rather sameness of prosecution which matters while appreciating the theme of double jeopardy.
6. Now coming to the facts of the case, it is evident from the FIR of both the case that same set of allegation has been attributed against the petitioner whereunder by creating forged and fabricated caste certificate, petitioner had succeeded in getting himself admitted at Bhagalpur Medical College. Though at an initial stage he was prosecuted for an offence punishable under Section 420 IPC (Hilsa P.S. Case No.160 of 1986) However, for the same allegation present case has been registered under different sections of the penal code. Even after minute observation of allegation so attributed, it did not justify instant prosecution because of the fact that mere application of different sections it would not exclude turf of sameness prosecution. The nature of allegation does inspire the surf of sameness of prosecution with regard to intended prosecution under different sections of Penal Law which was available to the prosecution at an earlier prosecution. So far applicability of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is concerned, none of the sections whereunder case has been registered is found coming out from the averments made in the self-statement of respondent no.2 and again mere registering the case under aforesaid act does not permit subsequent prosecution for want of ingredient coming therefrom.
7. On account thereof, FIR of Patna Harijan P.S. Case No.23 of 1998 is hereby quashed relating to the interest of petitioner, Vivekanand Prasad. Consequent thereupon, petition is allowed.