FAKIR CHARAN SAHU Vs. STATE

JUDGEMENT

(1.) Petitioner's stand that Section 300 of the Code of Criminal Procedure, 1973 (in short, the 'Code') comes to their aid having been turned down by the learned Chief Judicial Magistrate, Bhadrak (in short, 'CJM'). this application for interference has been filed.

(2.) A brief resume of the background facts would suffice. GR Case No. 1402 of 1990 was instituted on the basis of information ledged by a Grama Rakhi for alleged commission of offence punishable under Section 160 of Indian Penal Code, 1860 (in short MPC). Petitioners and five others faced trial and were acquitted in the said proceeding by learned CJM. Subsequently, another GR Case No. 597 of 1991 with which present dispute is concerned was instituted. Allegation related to commission of offence under Section 323, IPC. Petitioners claimed shelter under Section 300 of the Code, but learned CJM found their plea untenable. Learned CJM held that Section 300 comes into operation only when offence involved in the two cases is same. So far as the case at hand is concerned, he held that Section 300 of the Code had no application.

(3.) SECTION 300 is an amplification of well known maxim of law nomo debet bis suniri pre uno deliete that is to say, that no person should be twice vexed for the same offence. This principle does not rest on any doctrine of estoppel but embodies the well -established rule of common law that a man may not be put twice in peril for the same offence. The principle which ought to have been enacted in the section Is that no man should be vexed with several trials for offences arising out of the identical acts committed by him. There is nothing like res judicata in a criminal trial as long as it does not terminate in either acquittal or conviction so as to attract the provision of this section. The principle is that of the common law pleas of autrefois acquit (formerly acquitted) and autrefois convict (formerly Convicted) the question of double Jeopardy is secured both by Article 20(2) of the Constitution of India as well as by Section 300 of the Code. But the ambit and content of the guarantee in Article 20(2) are much narrower than those of common law of England or the doctrine of double jeopardy of Section 300 of the Code. The plea of double jeopardy differs from the rule of issue estoppel in a criminal trial Where an issue of fact has been decided by competent Court on a former occasion and a finding has been reached in favour of the accused such a finding would constitute an estoppel or res judicata against the prosecution, not as a b'r to the trial -and conviction of the accused for a different or distinct offence, but as barring reception of evidence to disturb the finding of fact in a subsequent or different trial of the accused. And this is known as the rule of estoppel. This rule differs from the plea of double jeopardy in two respects First, it does not introduce any variation in the investigation, inquiry or trial under the Code. Secondly, it does not prevent the trial of any offence as does the rule of double jeopardy, but only precludes the evidence being led to prove a fact, in issue about which a finding has already been recorded at an earlier trial in a competent forum. Rule of issue estoppel relates to the admissibiiity of evidence, which is designed to upset a finding of fact recorded by a competent Court at a previous trial. Thus the rule is not the same on the plea of double jeopardy or autrefois acquit which the latter prevents in the trial of any offence. It is to be noted that Article 20(2) does not contain the principle of autrefois acquit at all. It seems that our Constitution makers did not think it necessary to refer one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land. In order that the accused can avail himself of Section 300, Sub -section (1) two conditions are necessary. There must be a conviction or an acquittal and there should be a new trial for the same offence or for an offence for which he might have been charged under Sub -section (1) of Section 221 or might have been convicted under Sub -section (2) thereof. The following important rules emerge from the terms of Section 300 of the Code (1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a' trial for any other offence constituted by the same not 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 come of these 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 constitute a different offence, he may again be tried for that different offence arising but of the consequences if the consequences had not happened or were not known to the Court to have happened, at the time 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 been convicted under the Code. In order to get the benefit of Section 300 of the Code or Article 20(2) of the Constitution, it is necessary for an accused to establish that he had been triad by a 'Court of competent jurisdiction' for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. Article 20 does not in terms maintain a previous acquittal, but Section 300 does and goes on to explain in detail the full implication of the expression 'same offences'. Seven illustrations accompany the Section explaining in concrete terms the different situations which the Court may have to deal with.