STATE OF HARYANA Vs. DEEP CHAND

JUDGEMENT

(1.) The respondent in this case was a Sarpanch of Gram Panchayat Ghailab. In his capacity as the Sarpanch, he also held the charge of books, registers, cash and other articles belonging to the Gram Panchayat. On the expiry of his term as Sarpanch, he was asked by the Executive Officer of the Panchayat Samiti, Hathin (hereinafter called the Executive Officer), to hand over the articles belonging to the Panchayat to his successor in office, but he refused to do so. Upon this, the Executive Officer filed a complaint under Section 15(4) of the Gram Panchayat Act, 1952 (hereinafter called 'the Act') against him. It is alleged that this complaint was adjourned by the learned Judicial Magistrate for enabling the Executive Officer to put in his appearance but the latter failed to do so. Ultimately, on July 8, 1965, this complaint was dismissed in default. Sometime later, another complaint was made against the respondent and this matter was sent to the local police investigation. The investigating officer, being of the view that the respondent was guilty of offences under Sections 406 and 409 of the Indian Penal Code, submitted challan in the Court of the learned Judicial Magistrate First Class, Palwal. Before the said Court, a preliminary objection was raised on the ground that the offence under Section 15(4) of the Act being triable as a summons case, the dismissal in default of that complaint resulted in the acquittal of the respondent and he could not be tried for the second time for offences under Sections 406 and 409 of the Indian Penal Code. This preliminary objection found favour with the learned Judicial Magistrate and the learned Additional Sessions Judge, Gurgaon. Feeling aggrieved by the orders passed by the learned Courts below, the State of Haryana has come up in revision.

(2.) It has been urged by the learned counsel for the State that the instant case was covered by Section 403(2) of the Code of Criminal Procedure and as such the trial of the respondent for offences under Sections 406 and 409, Indian Penal Code, was not barred. The learned counsel for the respondent, however, submitted that the facts pleaded in the earlier complaint also constituted offences under Sections 406 and 409 of the Indian Penal Code and so the case fell under Section 403(1) of the Code of Criminal Procedure. According to the learned counsel, the respondent was justified in raising the plea of autre fois acquit. In order to resolve the present controversy, it is necessary to notice the relevant statutory provisions, which runs as follows :-

(3.) A comparison of Section 15(4) of the Act and Section 405 of the Indian Penal Code shows that the offences contemplated by these two statutory provisions are wholly distinct; whereas Section 15(4) of the Act deals with a case in which a person evades the handing over to the prescribed records, registers and other property belonging to the Sabha the gravamen of the offence of criminal breach of trust under the Indian Penal Code consists of dishonesty, misappropriation or conversion of another's property to one's own use. It is no doubt true that a Sarpanch, who refuses to surrender charge of the property belonging to the Panchayat, may be held guilty of an offence under Section 406 or 409 of the Indian Penal Code if he converts this property into his own use apart from being held guilty under Section 15(4) of the Act. In a case like this, charges against the accused person will have to be framed for both the offences as laid down under Section 235 of the Criminal Procedure Code. However, if in the earlier trial the accused person is tried for one offence only his acquittal for that offence would not debar a trial for the other offence though the facts constituting the same may to some extent be common. In Kunjilal and another v. The State of Madhya Pradesh, 1955 AIR(SC) 280 the accused persons were caught in the act of exporting foodgrains which was an offence under Section 7 of the Essential Supplies (Temporary Powers) Act. The Head Constable, who caught hold of them, was later on manhandled by the accused persons who successfully deprived him of the seized property and ran away. The accused persons were tried under Section 7 of the Essential Supplies Act and acquitted. Later on, they were again tried and charged under Sections 332 and 392, Indian Penal Code, for voluntarily causing hurt to a public servant in the discharge of his duty and also for robbing him of the goods seized by him. On being convicted under the latter provisions of the Indian Penal Code, the accused persons urged before the Supreme Court that their acquittal under Section 7 of the Essential Supplies Act operated as a bar against their subsequent trials under Sections 332 and 392, Indian Penal Code. Repelling this contention, the Supreme Court observed as follows :-