TaxTMI 
TaxTMI 
2017 (2) TMI 415
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....the FIR in question has been registered, by force of section 300 Cr PC the petitioner cannot be tried again in the aforesaid police case FIR registered against the petitioner vide FIR No. 616/2015. 2. Section 300(1) Cr PC is relevant for the present purpose and the same reads as follows: "300. Person once convicted or acquitted not to be tried for same offence. 1. A person who has once been tried by a Court of competent jurisdiction for an offence 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 sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof". 3. The submission of the petitioner is that, since "on the same facts", the two offences were alleged against the petitioner, and the petitioner stands acquitted in respect of the offence u/s 138 of Negotiable Instrument Act, he cannot be charged and tried for the offence u/s 420/406/34 IPC. In support of his submission, learned counsel for the pe....
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....te an offence. He submits that the relevant facts which constitute an offence u/s 138 Negotiable Instrument Act i.e. those facts which are essential ingredients of the said offence, are distinct from those which constitute the offence u/s 406/420 IPC. In support of his submission, Mr. Mahajan has placed reliance on the decision of the Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat & Anr., (2012) 7 SCC 621. Mr. Mahajan points out that in this case, the Supreme Court by a detailed decision, after reference to numerous earlier decisions including those of the Constitution Bench, held that -both for purposes of Article 20(2) of the Constitution of India, which incorporates the doctrine of autrefois acquit i.e. the doctrine against double jeopardy, and for the purpose of section 300 Cr PC, section 71 IPC, and section 26 of the General Clauses Act, it is the ingredients of the offences in the earlier case as well as in the later case which must be the same, and not different. 5. I may observe that upon this later decision being pointed out by Mr. Mahajan, counsel for the petitioner urged that the decision of the Supreme Court in Kolla Veera Raghav Rao (supra) is the....
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....cision in Kolla Veera Raghav Rao (supra) has been expressly considered in the subsequent decision in Sangeetaben (supra), there is no question of invoking the principle laid down by the Supreme Court in Sundeep Kumar Bafna (supra). The decision in Sangeetaben (supra), therefore, cannot be said to be per incurium. 9. I now proceed to consider, in some detail, the decision of the Supreme Court in Sangeetaben (supra). In Sangeetaben (supra), the Supreme Court considered, firstly, the decision of the Constitution Bench in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325. The said case pertained to illegal import of gold. Action was taken against the accused under the Customs Act. Later on, prosecution was launched against the accused in a criminal court charging him with commission of offence u/s section 8A of the Foreign Exchange Regulations Act, 1947. The plea of double jeopardy was raised by the accused seeking protection under Article 20(2) of Constitution of India. The Supreme Court held that the said plea of double jeopardy is based on the ancient maxim "nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of....
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....he article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. ... *** 16. The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to 'the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence'. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked."(emphasis supplied) 12. Reference was also made to Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR....
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....ence constituted by the same act which he may have committed, if the court trying the first offence was incompetent to try that other offence. (2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made. (3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which resulted therefrom constituted a different offence, he may again be tried for that different offence arising out of the consequences, 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 who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have....
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....same in respect whereof the earlier trial was held and the subsequent trial was sought to be undertaken in respect of a different offence.. 18. I may now proceed to cull out the conclusion drawn by the Supreme Court in para 33, which reads as follows: "33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge".(emphasis supplied). 19. Pertinently, in Sangeetaben (supra), the issue of double jeopardy was raised before the Supreme Court in the context of a complaint....
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....be taken not distributively so as to mean "prosecuted" or "punished". Both the factors must co-exist in order that the operation of the clause may be attracted. 21. In the present case, since the acquittal of the petitioner in the complaint case u/s 138 of the Negotiable Instrument Act is premised on the non-prosecution of the complaint by the complainant, no finding of fact - one way or another, has been returned by the concerned court while acquitting the petitioner. 22. Though the petitioner stands technically "acquitted" by application of Section 256 CrPC, his "acquittal" is not after a trial. Thus, in my view, it cannot be said that the petitioner is a "person who has once been tried by a Court of Competent jurisdiction ... ... ...". All that can be said is that he is a person who has been acquitted. "Acquittal" may result with, or without, a trial - like in the present case. 23. Though in a different context, the expression "trial" and "tried" were considered, firstly, by the Supreme Court in State of Bihar Vs. Ram Naresh Pandey & Another, AIR 1957 SC 389, and, thereafter, more exhaustively in Khazansingh & Others Vs. State of Rajasthan, AIR 1967 Raj 221. The relevant disc....
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....inal, of, the issue between the parties, whether of law or fact, before a Court that has jurisdiction over it. (Black's Law Dictionary. Fourth Edition Page 1675). 14. Trial: (1) A 'Trial' is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal. Therefore, the hearing of the reference of an action "and all matters in difference" is not a trial within Attendance of Witnesses Act, 1954, (Stroud's Judicial Dictionary, 3rd Edition, Volume 4, Page 3092). 15. These words have been considered in some judicial decisions. I have already noticed the Supreme Court decision above where for the purposes of Section 494 of the Cr PC in the words "tried" and "trial" enquiry was held to be included by the Supreme Court. In Sajjansingh v. Bhogilal, AIR 1958 Raj 307, this Court has observed: "Broadly speaking, however, a trial is the examination by a competent Court of the facts or law in dispute or put in issue in a case. It is the judicial examination of issues between the parties whether they are of law or of fact". 16. This appears to have been taken from Tomlin's Law Dictionary. In Ganesh v. State, ILR (1962) 12 Raj 996, th....
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....ary proceeding. To be able to claim interest, it was essential that the proceeding should have been "tried" in a Court of record, as required by Section 3 of the Law Reform (Miscellaneous Provisions) Act, 1934. The Court of Appeal held the plaintiff entitled to interest on a conclusion that even though the proceedings were summary in nature, a trial had taken place. 28. What emerges from the aforesaid extract is that "trial" is the mode of determining a question of fact or law in a Court of law. It is the determination of a cause by a Judicial Tribunal; determination of guilt or innocence of an accused person by a Court. It is a judicial examination of the issue between the parties, including those of fact. Trial is the examination by a competent Court of facts or law in dispute, or put in issue in a case. It has been understood to mean the proceedings which commences when the case is called on with the Magistrate on the Bench; the accused in the dock, and; the representatives of the prosecution and defence - if the accused be defended, present in Court for the hearing of the case. Lastly and most importantly, the words "trial" and "tried" have no fixed or universal meaning. Thes....
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....e has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. (Vide Pritam Singh v. State of Punjab [AIR 1956 SC 415 : 1956 Cri LJ 805] , Manipur Admn. v. Thokchom Bira Singh [AIR 1965 SC 87 : (1965) 1 Cri LJ 120] , Workmen v. Gujarat Electricity Board [(1969) 1 SCC 266 : AIR 1970 SC 87] and Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787 : AIR 2005 SC 626]". (emphasis supplied). 30. I may, at this stage, test the aforesaid proposition by reference to a realistic situation. Let us assume that in relation to the same transaction, the accused has issued multiple cheques to the complainant. The cheques may be of the same date, or staggered over a period of time i.e. they were post dated. In relation to dishonor of each of the cheques, a separate and independent cause of action and a separate offence would arise. The complainant would be entitled to maintain separate and distinct complaints in respect of each of the dishonoured cheques. Now, if one of such complaints were to b....
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....although he was not charged with it. 32. Section 221 Cr PC contemplates a situation where a single act, or a series of acts raises a doubt as to which of the several offences may have been committed. In such a situation, the accused may be charged of having committed all, or any of such offences, and number of such charges may be tried at once, or he may be charged in the alternative with having committed some/ one of the said offences. It further provides that if, in such a case, the accused is charged with one offence and it appears from the evidence that he committed a different offence for which he might not have been charged, he may be convicted of the offence, which he is shown to have committed, though not charged with it. In the present case, it is not even the submission of the petitioner that Section 221 CrPc was involved or applicable. 33. In the present case, the learned Judicial Magistrate, Gurugram, was dealing with the complaint of the complainant u/s 138 of Negotiable Instrument Act. Merely because in the said complaint, the facts which constitute offences u/s 406/420 IPC may have been laid out, it does not follow that the Magistrate was obliged to take cognizance....