Sanjeev Sirohi
Published on: 26 December 2022 at 13:45 IST
While reiterating the clear, correct and convincing legal position, the Apex Court has in a most learned, laudable, landmark and latest judgment titled TP Gopalakrishnan vs State of Kerala in Criminal Appeal Nos. 187-188 of 2017 and cited in 2022 that was decided finally on December 8, 2022 in exercise of its criminal appellate jurisdiction has held that Section 300 of the CrPC places a bar wherein, a person who has already been tried by a Court of competent jurisdiction for an offence arising out of the same facts, and has either been acquitted or convicted of such offence cannot be tried again for the same offence as well as on the same facts for any other offence as long as such acquittal or conviction remains in force.
It is also made clear that Article 20(2) expressly provides that no person shall be prosecuted or punished for the same offence, more than once. The protection against double jeopardy is also supplemented by statutory provisions contained in Section 300 of the CrPC, Section 40 of the Indian Evidence Act, 1872, Section 71 of the IPC and Section 26 of the General Clauses Act, 1897.
It must be noted that the Apex Court was hearing a Criminal Appeal that was filed assailing the judgment and order passed by the High Court of Kerala in Criminal Appeal Nos. 947 and 948 of 2009 by which the judgment of conviction and order of sentence passed in C.C. No. 24 and 25 of 2003 by the Trial Court had been upheld by dismissing the aforesaid appeals and consequently confirming the conviction of the appellant herein.
At the very outset, this learned, laudable, landmark and latest judgment authored by Hon’ble Justice BV Nagarathna for a Bench of Apex Court comprising of herself and Hon’ble Justice BR Gavai sets the ball in motion by first and foremost putting forth in para 1 that, “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.”
In hindsight, the Bench recalls in para 3 that, “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.”
Further, the Bench discloses in para 4 that, “The appellant herein was released on bail vide order of this Court dated 30.01.2017 subject to fulfillment of the conditions imposed by the Trial Court.”
Facts of the Case:
To put things in perspective, the Bench then envisages in para 5 that, “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.”
Be it noted, the Bench mandates in para 30 that, “Double jeopardy is often confused with double punishment. There is a vast difference between the two. Double punishment may arise when a person is convicted for two or more offences charged in one indictment however, the 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 the individual from peril of second sentence or punishment, nor to the service of a sentence for one offence, but is a protection against double jeopardy for the same offence that is, against a second trial for the same offence.”
Quite significantly, the Bench points out in para 38 that, “The Trial Court has erred in holding that the facts of previous case and misappropriation committed by the accused are not the same as the facts relevant to present case.
The Trial Court has held that in the present case, the allegation is that after conducting the auction of coconuts and half filled grains, two-thirds of the amount collected from the successful bidder was not remitted to the treasury, however, in the earlier cases, the allegations were that the accused misappropriated some amount to be paid to the proprietor of Agricultural Marketing Corporation, Kozhikode, Kerala State Coir marketing Corporation, Kozhikode from the State Seed Farm, Perambra by forging and falsifying records.
It is the admitted case of the prosecution that the present cases were based on the re-audit conducted by PW-9- the Assistant Sub-Inspector, Vigilance and Anti-Corruption Bureau, Kozhikode.
The re-audit was done for the period from 01.04.1992 to 31.12.1994. The charges in the present case are for relevant period from 27.04.1992 to 25.08.1992 and 01.03.1993 to 12.04.1994 which time period is same as in the previous three cases, that is, 28.03.1994 to 02.04.1994, 15.12.1992 to 31.03.1993 and 05.03.1994 to 08.03.1994 respectively.
Thus, it can be said that the present cases pertain to the same set of facts and are in respect of same offences, for the same period, committed in the same capacity as the previous three cases wherein the appellant herein was already prosecuted in the year 1999.
The core allegation in all these five cases pertains to misappropriation by making false entries in the cash book. The allegation of the prosecution that two-thirds of the auction amount was not remitted to the treasury would be covered under the allegations of misappropriation of funds, that the appellant has already been prosecuted for in the year 1999.
The appellant is right in contending that the charge in the first three cases were framed on 17.08.1999 which is much after the audit and the prosecution would have been well aware of the misappropriation in respect of the present cases on 17.08.1999.”
More to the point, the Bench minces no words to hold in para 39 that, “The learned counsel for the appellant has also brought to the attention of this Court, sub-section (2) of Section 300 of the CrPC which states that a person acquitted or convicted of any offence may be tried thereafter, but with the consent of the State Government, for any distinct offence for which a separate charge might have been framed against him under sub-section (1) of Section 220 of the CrPC,”.
“It has already been observed hereinabove that the allegations/offences in the instant cases are the same as the allegations/offences in the previous three cases, therefore as per the mandate under Section 300(2) of the CrPC, the consent of the State Government is necessary,”.
“Even if it is assumed for the sake of argument that the allegations are different in present cases from those in the previous cases, the prosecution has failed to obtain the prior consent of the State Government necessary to prosecute the accused-appellant and therefore the trial in the instant case is unlawful.”
Most significantly, the Bench hastens to add in para 41 that, “Sub-section (2) of Section 300 of the CrPC states that when the charge of the second trial is for a distinct offence, the trial is not barred.
This means that 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 the former trial under sub-section (1) of Section 220 of the CrPC but the same is subject to a condition precedent being, that the consent of the State Government is sought before such a person could be tried.
Applying the said provision to the present case, it is noted that earlier the petitioner was tried in C.C. No.12 of 1999, C.C. No. 13 of 1999 and C.C. No.14 of 1999 for the offences under Section 13(1)(c) read with Section 13(2) of the Act as well as under Sections 409 and 477A of the IPC. In C.C. No. 24 of 2003 and C.C. No. 25 of 2003, the appellant is being tried once again for the offences under Section 13(1)(c) read with Section 13(2) of the Act and Section 409 of the IPC for the same period.
There is no material on record to demonstrate that C.C. No.24 of 2003 and C.C. No.25 of 2003 have been initiated pursuant to the consent of the State Government. It is also not brought on record that the C.C. No.24 of 2003 and C.C. No.25 of 2003 is for any distinct offence for which a separate charge had been made against the appellant and the earlier trials.
(a) Having re-appreciated the evidence of the witnesses and on considering the contentions of the rival parties, we find that the High Court was not justified in affirming the judgment of conviction and sentence passed by the Trial Court.
(b) In view of the aforesaid discussion, we find that the Trial Court as well as the High Court were not right in convicting and sentencing the appellant herein and therefore, the impugned judgments are liable to be set aside.”
Finally, the Bench concludes by holding in para 42 that, “In the circumstances, we find that the initiation of C.C. No.24 of 2003 and C.C. No. 25 of 2003 are not in accordance with law and hence, the said proceedings are quashed,”.
“Consequently, the judgment of the Special Judge, Kozikhode in C.C. No.24 of 2003 and C.C. No.25 of 2003 and of the High Court of Kerala at Ernakulam in Criminal Appeal Nos.947 and 948 of 2009 are set aside. The appeals are allowed in the aforesaid terms. Pending application(s), if any, shall stand disposed of. No costs.”
All in all, it has to be said that the Apex Court has very rightly reiterated that Section 300 CrPC bars the trial not only for the same offence but also for any other offence on the same facts and very rightly grants relief to the appellant. It merits no reiteration that all the Courts must pay heed to what the Apex Court has laid down in this leading case. No denying!
Sanjeev Sirohi, Advocate