Back
Andhra Pradesh High Court
Judges : SANJEEVA ROW NAIDU
In Re: Osaman Ali - Appellant
Versus
State OF A.P. - Respondent
Decided On : 11-26-58
CRIMINAL PROCEDURE CODE - SECTION 403 - SECTION 233 - SECTION 222 (2) - SECTION 234 - SECTION 235 - SECTION 236 - SECTION 239 - SECTION 537 - SECTION 26 OF THE GENERAL CLAUSES ACT, 1897 - SECTION 188 OF THE CODE OF CRIMINAL PROCEDURE - INTERPRETATION - SCOPE AND APPLICABILITY - AUTREFOIS ACQUIT - AUTREFOIS CONVICT - DISTINCTION - SEPARATE CHARGES FOR DISTINCT OFFENCES - GROSS SUM INCLUSION - LEGALITY - SUBSEQUENT TRIAL FOR DISTINCT OFFENCES - PERMISSIBILITY - EVIDENCE - IDENTITY - RELEVANCE - PREJUDICE TO ACCUSED - CURE BY SECTION 537 - APPLICABILITY.
Fact of the Case:
The petitioner was charged with two counts of criminal misappropriation. He had previously been acquitted of two other charges of criminal misappropriation. The petitioner argued that the prosecution should not be allowed to proceed with the current charges because they could have been included in the previous charges under Section 222(2) of the Code of Criminal Procedure (CrPC).
Finding of the Court:
The court held that Section 403 of the CrPC, which deals with autrefois acquit and autrefois convict, did not apply in this case because the subsequent charges were for distinct and different offenses. The court also held that Section 222(2) of the CrPC, which allows the prosecution to include a gross sum in a charge for criminal misappropriation, is an enabling provision and does not require the prosecution to do so. The court further held that the subsequent trial was not barred by Section 537 of the CrPC, which allows for the curing of defects in a trial, because the trial was not conducted in contravention of a mandatory provision of law.
Issues: 1. Whether Section 403 of the CrPC barred the prosecution from proceeding with the subsequent charges. 2. Whether Section 222(2) of the CrPC required the prosecution to include the subsequent charges in the previous charges. 3. Whether the subsequent trial was barred by Section 537 of the CrPC.
Ratio Decidendi: 1. Section 403 of the CrPC applies only to cases where the subsequent offense is the same offense or a different offense for which a different charge could have been made under Section 236 or for which the accused could have been convicted under Section 237. In this case, the subsequent charges were for distinct and different offenses, so Section 403 did not apply. 2. Section 222(2) of the CrPC is an enabling provision that allows the prosecution to include a gross sum in a charge for criminal misappropriation. It does not require the prosecution to do so. 3. Section 537 of the CrPC allows for the curing of defects in a trial, but it does not apply to cases where the trial was conducted in contravention of a mandatory provision of law. In this case, the trial was not conducted in contravention of a mandatory provision of law, so Section 537 did not apply.
Final Decision: The court dismissed the petitioner's revision petitions.
( 1 ) THE simple point that arises for consideration in these Revision Petitions is whether the prosecution in respect of two charges of criminal misappropriation should not be allowed to proceed with and should be quashed in view of the fact that two other charges of criminal misappropriation against the same accused have ended in acquittal.
( 2 ) THE main ground that is urged on behalf of the petitioner is, that Section 222 (2) of the Code of Criminal Procedure, permitted the inclusion of a gross sum in respect of which the offence of criminal misappropriation is alleged to have been committed within a period of one year, without having to specify the particular items and the exact dates, and the charge so framed shall he deemed to be a charge for an offence within the meaning of Section 234, Criminal P. C. From this it is contended by the learned counsel for the petitioner, that as the prosecution could have preferred one charge in respect of the gross amount made up of several sums misappropriated by the accused, including the sums which were the subject-matter of the two charges that are now being proceeded with, it would he illegal for the prosecution to try the accused on these charges. The plea apparently is based on Section 403, Criminal P. C. , which embodied the well-known principle of autrefois acquit. Section 403, Criminal P. C. , is as follows: "403 (1), A person who has once been tried by a Court of competent jurisdiction for an of-fence 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 Section 236, or for which he might have been convicted under Section 237. (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 ). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such lastmentioned offence, 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 acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897, or of Section 188 of this Code. Explanation: The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section. " It may be seen from this section that the following conditions required to be fulfilled before that Section could be taken advantage of by an accused person: (1) He should have once been tried by a Court of competent jurisdiction for an offence; (2) He should either have been convicted or acquitted of the offence; and (3) Such a conviction or acquittal should have remained in force. Once the above conditions are fulfilled, the accused can claim that he is not liable to be tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, Criminal P. C. , or for which he might have been convicted under Section 237, Criminal P. C.
( 3 ) THE Section itself recognises that where a person is so convicted or acquitted of any offence,
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
