The bar of double jeopardy under Art. 20(2) of the Constitution and S. 26 of the General Clauses Act applies only when the offences are the same, i.e., identical in their ingredients.

Headnote:
CRIMINAL LAW - Double Jeopardy - Art. 20(2) of the Constitution and S. 26 of the General Clauses Act - Scope and Application - Identity of Offences - Ingredients of Offences - Distinction between Criminal Breach of Trust (S. 409, IPC) and Offence under S. 105 of the Insurance Act.
Fact of the Case:

The respondents, Managing Director and Managing Director of Women's Department of an Insurance Company, were convicted under S. 409 of the Indian Penal Code for misappropriation of company funds. Subsequently, they were charged under S. 105 of the Indian Insurance Act for the same acts. The Magistrate acquitted them, holding that Art. 20(2) of the Constitution and S. 26 of the General Clauses Act barred their conviction and punishment.
Finding of the Court:

The Court held that the offences under S. 409 of the Indian Penal Code and S. 105 of the Indian Insurance Act were distinct and not the same offence. The ingredients of the two offences differed, with S. 409 requiring entrustment or dominion over property and dishonest intent, while S. 105 did not require any intent and punished mere withholding or misapplication of property. Therefore, the bar of double jeopardy under Art. 20(2) of the Constitution and S. 26 of the General Clauses Act did not apply.
Issues: 1. Whether the offences under S. 409 of the Indian Penal Code and S. 105 of the Indian Insurance Act were the same offence for the purpose of double jeopardy under Art. 20(2) of the Constitution and S. 26 of the General Clauses Act. 2. Whether the ingredients of the two offences were identical.
Ratio Decidendi: The Court interpreted Art. 20(2) of the Constitution and S. 26 of the General Clauses Act to require identity of offences for the bar of double jeopardy to apply. The Court analyzed the ingredients of the two offences and found that they were distinct, with S. 409 requiring entrustment or dominion over property and dishonest intent, while S. 105 did not require any intent and punished mere withholding or misapplication of property. Therefore, the Court held that the offences were not the same and the bar of double jeopardy did not apply.
Final Decision: The Court allowed the appeal, set aside the judgment and order of the High Court, and remanded the case to the Magistrate for further proceedings.

Judgment

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.

2. 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 Managing 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 maintaining 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, 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.

3. 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 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 pre-requisite for the initiation of the prosecution under S. 105 had not been obtained before the complaint in respect thereof had been 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.

4. Subsequently 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 imp

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1960 Supreme(SC) 344

The bar of double jeopardy under Art. 20(2) of the Constitution and S. 26 of the General Clauses Act applies only when the offences are the same, i.e., identical in their ingredients.

Cases Referred (2)