While laying aside all the looming layers of questions and lingering doubts that boggles one’s mind on the ambit of Section 300 of CrPC, the Apex Court has in a most leading judgment titled TP Gopalakrishnan vs State of Kerala in Criminal Appeal Nos. 187-188 of 2017 that was pronounced on December 8, 2022 has reiterated in no uncertain terms that Section 300 CrPC bars the trial of a person not only for the same offence but also for any other offence on the same facts.
The Apex Court makes it abundantly clear 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 has to be borne in mind that Article 20(2) expressly provides that no person shall be prosecuted or punished for the same offence, more than once.
We also ought to note that 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.
At the very outset, this extremely commendable, crisp, cogent and convincing judgment authored by Hon’ble Ms Justice BV Nagarathna for a Bench of the Apex Court comprising of Hon’ble Mr Justice BR Gavai and herself 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.
Of course, the Bench then states in para 2 that:
For the sake of convenience, the parties shall be referred to as per their rank before the Trial Court.
To put things in perspective, the Bench envisages 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.
As it turned out, the Bench then 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.
While elaborating on facts of case, the Bench lays bare 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 points out in para 22 that:
Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). Sub-section (1) of Section 300 lays down the rule of double jeopardy and subsections (2) to (5) deal with the exceptions.
Accordingly, so long as an order of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt in with under sub-sections (2) to (5) of the section.
It would be germane to note that the Bench propounds in para 23 that:
Section 300 of the CrPC is based on the maxim nemo debet bis vexari, si costest curiae quod sit pro una et eadem causa which means that a person cannot be tried a second time for an offence which is involved in an offence with which he was previously charged. As per the decision of this Court in Vijayalakshmi vs. Vasudevan (1994) 4 SCC 656 in order to bar the trial of any person already tried, it must be shown that:
- he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at a trial, on the same facts,
- he has been convicted or acquitted at the trial, and
- such conviction or acquittal is in force.
For sake of clarity, the Bench clarifies in para 24 stating that:
The whole basis for this provision is that the first trial should have been before court of competent jurisdiction. There must have been a trial of the accused, that is to say, that there should have been a hearing and determination or adjudication of the case on merits. Where the accused has not been tried and as such convicted or acquitted, Section 300(1) shall not be applicable.
Quite forthrightly, the Bench observes in para 25 that:
Section 300 of the CrPC bars the trial of a person not only for the same offence but also for any other offence on the same facts, vide Thakur Ram vs. State of Bihar AIR 1966 SC 911.
Most significantly, we need to appreciate that the Bench very rightly mandates 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 and as a corollary, the Bench then 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 told, the sum and substance of the aforesaid discussion on this notable judgment of Apex Court is that Section 300 of CrPC bars the trial of a person not only for the same offence but also for any other offence on the same facts. Of course, all the Courts must pay heed to what the Apex Court has laid down so very clearly in this leading case! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
