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SUPREME COURT OF INDIA
B.R. GAVAI, B.V. NAGARATHNA, JJ.
T.P. Gopalakrishnan - Appellant
Versus
State of Kerala – Respondent
Criminal Appeal Nos.187-188 of 2017
Decided on : 08-12-2022
(A) Criminal Procedure Code, 1973 – Section 300 – Constitution of India – Article 20(2) – Double Jeopardy – No person shall be prosecuted or punished for same offence, more than once – Double jeopardy is used to denote protection to accused, that he has had fair trial for same offence, wherein fair trial means trial according to law and established legal procedure – So long as an order of acquittal or conviction by a court of competent jurisdiction remains in force, person cannot be tried for same offence for which he was tried earlier – Where accused has not been tried and as such convicted or acquitted, Section 300(1) shall not be applicable – Section 300 of Cr.P.C. bars trial of a person not only for same offence but also for any other offence on same facts – There should be not only a prosecution but also punishment in first instance in order to operate as a bar to a second prosecution and punishment for same offence – Where there are two distinct offences made up of different ingredients, embargo under Article 20 of Constitution of India, has no application, though offences may have some overlapping features – Crucial requirement of Article 20 is that offences are same and identical in all respects – Concept of double jeopardy can also be understood in terms of Article 21 of Constitution of India which states that no person shall be deprived of his life or personal liberty except according to procedure established by law. (Paras 19, 20, 22, 23, 24, 25, 26, 28 and 29)
(B) Constitution of India – Article 20(2) – Criminal Procedure Code, 1973 – Section 300 – Double Jeopardy – Double jeopardy is often confused with double punishment – There is a vast difference between two – Double punishment may arise when a person is convicted for two or more offences charged in one indictment – However, question of double jeopardy arises only when a second trial is sought on a subsequent indictment following a conviction or acquittal on an earlier indictment – This doctrine is certainly not a protection to individual from peril of second sentence or punishment, nor to service of a sentence for one offence, but is a protection against double jeopardy for a second trial for same offence. (Para 30)
(C) Prevention of Corruption Act, 1988 – Section 13(2) read with Section 13(1)(c) – Indian Penal Code, 1860 – Section 409 – Criminal breach of trust and misappropriation of money by abusing official position as a public servant – Appellant was earlier charged for offences under Section 13(1)(c) read with Section 13(2) of Act and Sections 409 and 477A of IPC and was convicted in two cases and acquitted in one case – Present two cases arise out of same set of facts and same transaction – Matter of offences in all previous three cases and present case are same and are said to be committed in course of same transaction while holding one and same post of Agricultural Officer by appellant – Even if it is assumed that allegations are different in present cases from those in previous cases, prosecution has failed to obtain prior consent of State Government necessary to prosecute accused-appellant and trial in instant case is unlawful – If a person is acquitted or convicted of any offence, he may be tried for a distinct offence for which a separate charge might have been made against him at former trial under sub-section (1) of Section 220 of Cr.P.C. but same is subject to condition precedent being, that consent of State Government is sought before such a person could be tried – High Court was not justified in affirming Judgment of conviction and sentence passed by Trial Court – Impugned Judgment set aside. (Paras 37, 39, 40, 41 and 42)
Facts of the case:
Criminal Appeals have been filed assailing impugned judgment and order dated 13.06.2016 passed by High Court of Kerala at Ernakulam in Criminal Appeal Nos. 947 and 948 of 2009 by which the judgment of conviction and order of sentence dated 27.04.2009 passed in C.C. No.24 and 25 of 2003 by the Court of the Enquiry Commissioner and Special Judge, Kozhikode has been upheld by dismissing the appeals and consequently confirming conviction of appellant.
Findings of Court:
Initiation of C.C. No.24 of 2003 and C.C. No. 25 of 2003 are not in accordance with law and hence, said proceedings are quashed. Consequently, judgment of Special Judge, Kozikhode in C.C. No.24 of 2003 and C.C. No.25 of 2003 and of High Court of Kerala at Ernakulam in Criminal Appeal Nos.947 and 948 of 2009 are set aside.
Result : Appeals allowed.
JUDGMENT :
NAGARATHNA, J.
1. These Criminal Appeals have been filed assailing the impugned judgment and order dated 13.06.2016 passed by the High Court of Kerala at Ernakulam in Criminal Appeal Nos. 947 and 948 of 2009 by which the judgment of conviction and order of sentence dated 27.04.2009 passed in C.C. No.24 and 25 of 2003 by the Court of the Enquiry Commissioner and Special Judge, Kozhikode (‘Trial Court’, for the sake of convenience) has been upheld by dismissing the aforesaid appeals and consequently confirming the conviction of the appellant herein.
2. For the sake of convenience, the parties shall be referred to as per their rank before the Trial Court.
3. The Trial Court vide its judgment and order dated 27.04.2009 in both the aforesaid cases convicted the appellant herein-accused for offences under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988 (‘the Act’, for short) and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rupees Two Thousand and in default thereof, to undergo rigorous imprisonment for six months. The accused was further convicted for the offence under Section 409 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees Two Thousand and in default thereof, to undergo rigorous imprisonment for six months. The sentences were directed to run concurrently.
4. The appellant herein was released on bail vide order of this Court dated 30.01.2017 subject to fulfilment of the conditions imposed by the Trial Court.
Facts of the Case:
5. Succinctly stated, the case of the prosecution in C.C. No. 24 of 2003 is that while the accused was working as Agricultural Officer, State Seed Farm, Perambra, for the period 31.05.1991 to 31.05.1994, he abused his official position as a public servant and committed criminal breach of trust and misappropriated an amount of Rs.20,035/-, during the period from 27.04.1992 to 25.08.1992, by not remitting the same to the Sub-Treasury, Perambra. The amount included Rs.17,449/-, being two-thirds of the proceeds received from the auction of 5510 coconuts harvested and auctioned on 28.05.1992 at the State Seed Farm, Perambra; Rs.2,098/- being two-thirds of the proceeds from the auction of 1049 kgs of half-filled grains auctioned on 28.05.1992; and Rs.488.80/- being the price of 104 coconuts harvested from the State Feed Farm, Permbra on 24.08.1992 and 25.08.1992 respectively.
6. The case of the prosecution in C.C. No.25 of 2003 is that while the accused was working as Agricultural Officer, State Seed Farm, Perambra, from 31.05.1991 to 31.05.1994, abused his official position as a public servant and committed criminal breach of trust and misappropriated an amount of Rs.58,671/- during the period from 01.03.1993 to 12.04.1994, being auction proceeds from the sale of 11,109 coconuts harvested from State Seed Farm, Perambra, auctioned on 23.07.1993; Rs. 12,290/- being the proceeds from the auction of 6,046 coconuts; Rs.11,844/- being the proceeds from the auction of 3,883 coconuts harvested from State Seed Farm, Perambra; Rs.654/- being the price of 160 coconuts harvested on 13.02.1992, 07.04.1993, 17.03.1994 and 12.04.1994, by not accounting for them and has thereby committed the aforesaid offences under Section 13(1)(c) read with Section 13(2) of the Act and Section 409 of the IPC.
7. It is prosecution’s case that prior to registration of these two cases against the accused, three other cases, being C.C. No. 12 of 1999, C.C. No. 13 of 1999 and C.C. No. 14 of 1999 were registered against him. In May 1994, a surprise inspection was carried out in the State Seed Farm, Perambra and the inspection team found that the cash book was not properly maintained and that the Agricultural Officer received amounts from the Treasury. The inspection report was submitted to the Director of Agriculture. On the basis of the said report, an enquiry was conducted by the vig
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