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2016 Supreme(Guj) 585
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.S. Jhaveri and G.B. Shah, JJ.
State of Gujarat – Appellant
Vs.
Asgarali – Respondents
Criminal Appeal Nos. 167 and 174 of 2008
Decided On : 30-03-2016
For the Appellant : J.M. Panchal, Spl. Public Prosecutor
For the Respondents:B.M. Gupta and C.B. Gupta, Advocates
The principle of section 300 of Cr.P.C. was applied to determine whether a second trial relating to the same set of facts and evidence was barred, and it was found that it was indeed barred in this case.
Headnote:
POTA - Criminal Proceedings - Section 300 of Cr.P.C. - [Section 300 of Cr.P.C.]
Fact of the Case:
The respondents-accused were tried and convicted in POTA Case No. 10 of 2003. They were sought to be tried in POTA Case No. 12 of 2003 based on the same set of evidence. The accused filed applications to drop the proceedings in POTA Case No. 12 of 2003 under section 300 of Cr.P.C. The POTA Court dropped the proceedings, leading to the State's appeals.
Finding of the Court:
The POTA Court held that as the set of facts and evidence were similar and identical in both cases, a larger conspiracy was not revealed in POTA Case No. 12 of 2003. It further held that the second trial relating to the same set of facts and evidence was barred under section 300 of Cr.P.C. The appeals were dismissed, and the impugned order was upheld.
Issues: Whether the second trial relating to the same set of facts and evidence was barred under section 300 of Cr.P.C.
Ratio Decidendi: The POTA Court found that the second trial relating to the same set of facts and evidence was barred under section 300 of Cr.P.C. as a larger conspiracy was not revealed in the second case.
Final Decision: The appeals were dismissed, and the impugned order was upheld.
K.S. Jhaveri, J.
1. The present appeals are filed by the State of Gujarat being aggrieved and dissatisfied with the common order dated 19th December, 2007 passed below Exhs.602 and 615 in POTA Case No. 12 of 2003 by the learned Addl. Special Judge under POTA, Court No. 14, Ahmedabad, whereby the proceedings filed against original accused No. 11-Asgarali, S/o Mohammad Vazirali and accused No. 12-Mohammadrauf Mohamad Abdulkadar in POTA Case No. 12 of 2003 were dropped under section 300of Cr.P.C.
2. Facts leading to filing of present appeals are that the respondents-accused in both the appeals were accused in POTA Case No. 10 of 2003 as well as in POTA Case No. 12 of 2003. They were tried in POTA Case No. 10 of 2003 and at the end of trial, both the accused were convicted and sentenced. However, relying upon the same set of facts and depositions of witnesses as were collected in POTA Case No. 10 of 2003, the respondents accused were sought to be tried in POTA Case No. 12 of 2003. Therefore, both original accused No. 11-Asgarali, S/o Mohammad Vazirali and accused No. 12-Mohammadrauf Mohamad Abdulkadar filed applications at Exhs.602 and 615 respectively to drop the proceedings in POTA Case No. 12 of 2003 under section 300 of Cr.P.C. After hearing the learned advocates appearing for the respective parties, the learned Addl. Special Judge under POTA, Court No. 14, Ahmedabad, vide order dated 19th December, 2007 passed below Exhs.602 and 615 in POTA Case No. 12 of 2003 dropped the proceedings, giving rise to prefer the present appeals by the State.
3. Heard learned Special Public Prosecutor for the appellants-State, Mr. J.M. Panchal and Mr. Gupta, learned advocate for the respondents-accused.
4. Learned Special Public Prosecutor for the State, Mr. Panchal, took us through the provisions of Section 300 of Cr.P.C. and contended that the issues involved in both the cases are operating in different field. He contended that it is the case of the respondents-original accused that they were tried and convicted in POTA Case No. 10 of 2003(murder of Shri Haren Pandya and assault on Shri Jagadish Tiwari) and therefore, on the same set of evidence, they cannot be tried in the present case i.e. POTA Case No. 12 of 2003(case of ISI conspiracy and general conspiracy case) and therefore, the present proceedings are required to be dropped under section 300 of Cr.P.C. According to him, in POTA Case No. 10 of 2003, charge was for limited conspiracy of murder whereas in the present case i.e. POTA Case No. 12 of 2003, charge is for general conspiracy where the terrorist activity was on a larger scale and the persons were sent to Pakistan for training and therefore, the charges in both the cases are different. He further contended that as charges in both the cases are different, it cannot be said that the respondents-accused were tried for "same offence and also for "the same subject matter". He further contended that in POTA Case No. 10 of 2003, issues raised and points for determination were different. He further contended that it cannot be said that judgment in POTA Case No. 10 of 2003 is in respect of same matter, same issue and same charge. He further contended that merely because some common narration, history or reference is made, which is commonly mentioned in both the cases, it cannot be said that they were already tried in earlier trial and the issues raised are adjudicated upon and decided in earlier trial. He drew our attention towards illustration(f) of section 300 which reads as under:
"A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts."
In this connection, he relied upon the decision of the Hon'ble Supreme Court in the case of V.K. Agarwal, Assistant Collector of Customs v. Vasantraj Bhagwanji Bhatia and others reported in (1988)3 SCC page 467 more particularly paras 1,2 and 7 which reads as under:
"1. Doe
