1957 Supreme(SC) 36

SUPREME COURT OF INDIA
5th April 1957
S.R. DAS, C.J.I., IMAM, S.K. DAS, GOVINDA MENON AND SARKAR, JJ.
State of M.P., Appellant
Versus
Veereshwar Rao Agnihotri, Respondent.
Criminal Appeals Nos. 130 and 131 of 1954.
Advocates appeared
Messrs, Shiv Dayal and R.H. Dhebar, Advocates, for Appellant; Mr. B.C. Mishra, Advocate, amicus curiae, for respondent.

Headnote:Article 20 (2)-Doctrine of autrefois acquit-Offence of criminal misconduct punishable under S. 5(2) of the Prevention of Corruption Act, 1947, not identical with an offence under S. 409, I P. C.-Section 403 (I) of Criminal Procedure Code not applicable.

       Two alternate changes in the same trial-Acquittal of the accused in one will not prevent the conviction on the other General Clauses Act, Section 26.

       The respondent 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, 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 23, 1952, the Criminal Law Amendment Act, 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-section (2) of S.5 of the Prevention of Corruption Act, 1947. Section 7 of the same statute laid down that notwithstanding anything 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-clause (b) of S. 7 laid down that when trying a case, tribal exclusively by a Special Judge under this statute, he may also try any other offence with which this 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, the respondents cases pending before the City Magistrate and Additional District Magistrate, Lashkar, were transferred to a Special Judge constituted for the purpose. By separate judgments dated June 5, 1953, the Special Judge found the respondent guilty of an offence under S. 409 of Indian Penal Code and sentenced him to rigorous imprisonment for three years. He, however, passed on order of acquittal under Ss. 468 and 477-A, I.P.C. As regards the charge under S. 5(2) of the Prevention of Corruption Act 1947, he was of the view that since the provisions of sub-section (4) of S. 5 of the Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub-section (2) of S. 5 of the 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, I.P.C., 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 I 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 section 409 of the Indian Penal Code. The respondent was, therefore, acquitted. The State was granted special leave to appeal to the Supreme Court against the order of acquittal.

       Held (allowing the appeal): (1) The offence of criminal misconduct punishable under section 5 (2) of the Prevention of Corruption Act, 1947, is not identical in essence, import and content with an offence under section 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 section 409 of the Indian Penal Code. It has been held that the offence created under .section 5 (1) (c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 of the Indian Penal Code and therefore there can be no question of section 5 (I) (c) repealing section 405 I.P.C.1 In view of the above pronouncement the view taken by the learned Judge of the High Court that the two offences are the one and the same is wrong, and if that is so, there can be no objection to a trial and conviction under section 409 of the Indian Penal Code even if the respondent has been acquitted of an offence under section 5 (2) of the Prevention of Corruption Act, 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 the accused person might have been made under section 236 of the Criminal Procedure Code, or for which he might have been convicted under section 237 when the earlier conviction or acquittal for such an offence remains in force. It is obvious that section 403 (I) 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. This 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 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.

       1. Om Prakash v. State of D.P., A.I.R. 1957 S.C. 458.

        (2) The argument on behalf of the appellant 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.