P L D 1965 (W (PLP)

Explanation. The dismissal of a complaint, the stepping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes f this section."

7. This provision of law has been interpreted and explained in several authorities cited at the Bar and reference may be jade to some of them. In Narasingha Rout and others v. Rameswar Mohapatra (A I R 1958 Orissa 141) it was observed:‑ "If subsections (1) and (2) of section 403 are construed together, the conclusion is that if in the first trial an alternative charge could have been made under section 236, Criminal Procedure Code, or the accused could have been convicted without such a charge under section 237, Cr. P. C., the second trial on ‑the same facts would be barred. But if in the first trial a separate charge under subsection (1) of section 235, Cr. P. C. might have been framed, a second trial for that offence will not be barred."

8. Again, In re: Tangavelu Mudali (A I R 1956 Mad. 130) it was held that "an acquittal in respect of offences under section 477‑A, I. P. C. does not bar the prosecution of the accused under section 409, P. P. C. The fact that the evidence in the second case is bound to be substantially the same as in the first case is not the material test. The material test is that laid down by sections 236, Cr. P. C., namely, whether the facts are of such a nature that it is doubtful which of several offences the facts which can be proved will constitute. It is only in such circum stances that section 236 is attracted. And it goes without saying that section 237 cannot be attracted unless section 236, actually applies to the case."

9. The scope and applicability of section 403, Cr. P. C;,‑.: was discussed at somewhat greater length In re: Osman Ali (A I R 1959 Andhra Pardesh 520) and the following conclusion 'was reached:‑ "Section 403 has no application to a case where the sub sequent offence for which the accused was being tried ‑did not form part of or had nothing to do with the offence for which he had already been tried, for example, where an accused person is alleged to have committed four distinct and separate acts of misappropriation for separate ascertained‑ sums of money, it is open to the prosecution either to try three of them, if committed within the space of one year at one trial and try the remaining charge at another trial or try each one of these charges separately in separate trials; for section 233 clearly lays down that for every distinct offence of which any person is accused of, there shall be a separate charge and that every such charge shall be tried separately. The separate trials need not be held in cases covered by sections 234, 235, 236 and 239, Cr. P. C. "Where the accused is alleged to have committed distinct and different offences of criminal misappropriation in respect of different individuals and in relation to different sums of money and committed at different places and times, there is no law which can stand in the way of the prosecution in respect of the subsequent charges going on simply because the earlier charges happened to end in an acquittal.

10. In Kanakayya v. Emperor (A I R 1930 Mad. 978) it was observed that "section 222 (2) is an enabling provision which permits what otherwise would be a large number of separate charges to be joined together for the purpose of convenience. Nowhere is it prescribed that separate charges in respect of separate amounts misappropriated shall not be resorted to and that if an accused has misappropriated several sums within a year they all should be added together and made into one gross sum. and tried as one charge". It was accordingly held that the subsequent trial was not illegal, as the former case against the accused was not for a gross sum misappropriated within two dates but was for misappropriation of specific sums of money received on specific dates and section 222 (2) did not come into operation. However, a somewhat different view was expressed on this point in Sidh Nath Awasthi v. Emperor (A I R 1929 Cal. 457) in which it was held that "if a person commits a breach of trust or mis appropriates different sums of money he commits so many offences. 'But it is not desirable that he should be tried as many times when he could have been tried for all of them at one trial".

11. A perusal of the authorities referred to at the Bar as well as of the clear language employed in the various sub sections of section 403, Cr. P. C. leaves no doubt that this section has no application to a case where the subsequent offence for which the accused is being tried subsequently did not form part of the offence alleged at the previous trial; nor is this section attracted to a case in which the subsequent offence is not, in any manner, connected with the facts alleged at the earlier trial. Apart from the offence for which the accused may have already been tried and convicted or acquitted at the previous trial, the protection contained in subsection (1) of section 403 extends to an offence for which a charge different from the one made against the accused at the previous trial might have been made on the same facts under section 236, Cr. P. C., and also in respect of an offence for which he might have been convicted at the previous trial under section 237, Cr. P. C.; but the protection clearly does not extend in` those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. A distinction has to be made here between same arid similar facts. The bar against a fresh trial does not extend to similar facts. Now, in the instant case it is clear that all these forgeries alleged against the present petitioners could not have been tried at one trial under any of the provisions of the Criminal Procedure Code. At the most thee of these forgeries could have been tried together under section 234, Cr. P. C., provided That they were committed within the space of twelve months. It is to be noted that section 234 is only an enabling provision, and the prosecution chose to take advantage of it in respect of two forgeries only which formed the subject‑matter of the trial which has already concluded against the petitioners. The facts alleged with regard to the remaining 63 forgeries are not the same as were alleged at the first trial, although they are very much similar. It seems to me, therefore, that the pro tection afforded by subsection (1) of section 403, Cr. P. C. is not available in terms to the petitioners and accordingly the trial in the 23 cases which are now pending against them cannot be held to be illegal.

12. There is conflict of authority on the question whether the principles embodied in section 403, Cr. P. C. should be extended or not to cases which otherwise do not fall within its purview. In Parnanandu Das Gupta and others v. Emperor (A I R 1939 Cal. 65) it was held by the Full Bench that "the principles underlying English common law pleas of autrefois convict and autrefois acquit have been embodied so far as this country is concerned within the limits of language of section 403 itself, and effect must be given to the clear and precise words of the section. The language of the section cannot be stretched, nor the principles extended, so as to give an accused the benefit of the spirit underlying the provisions of that section as it would be bewildering and might result in great injustice to the com munity at large". The same view was taken In re: Osman Ali in which it was observed as under:‑ "One cannot agree with the view that where the subsequent charges are based on identical evidence as was adduced with respect to the charges on which the accused had been pre viously tried and acquitted, it would not be proper to try the accused over again. The evidence on any one charge can in no, case be exactly identical with the evidence on another charge. Thus no case can serve as a precedent of facts, as the facts always vary. Further, to lay down such a proposition will lead to the most serious consequences for, when fresh evidence is forthcoming and when the subsequent charges could be supported on that evidence, and particularly when the nature and availability of that evidence could not have teen anticipated before the trial on the earlier charges is held, it will defeat the ends of justice to prevent the trial of the subsequent charges simply because the previous charges ended in an acquittal."

13. A contrary view was, however, expressed in A. M. Rangachariar v. Vankatasivami Chetty (A I R 1935 Mad. 56) in which a learned Single Judge observed that "Court must generally lean, in cases of doubt, against any construction of a penal law which is patently oppressive to the subject, and in favour of a con struction which is in accord with the general policy of the criminal. law, which is to protect the subject from a fresh prosecution after he has been convicted or acquitted in respect of what is in substance the same matter." The learned Judge was dealing with a case of repeated prosecution for failure to remove an encroachment after repeated notices had been given by a local authority. On the facts the learned Judge a expressed himself as under:‑ "When the Court has once decided that there has been no failure to remove an encroachment and acquitted the accused, he is not liable to be tried again and again for failure to remove the same encroachment, simply because the same authority hopes to get a different decision later on by issuing one notice after another relating to the same encroachment. It is the failure to remove or alter the encroachment specified in the notice that constitutes the offence; once there is such failure the offence is complete; and failure to perform an act is ex necessitate roi continuous in character. Another separate or distinct offence is not brought into being by the issue of a subsequent notice when that notice is by the same authority and to the same person, and relates to the same encroachment or contains the same direction."

14. It will be seen, that the decision of the learned Judge in this case really rests on his finding that no fresh offence was created or committed by the disobedience of the subsequent notices served on the accused by the local authority, but the general observations made by his Lordship with regard to saving the subject from the oppressive effect of repeated prosecution have a bearing in the present context. A similar view was expressed in Emperor v. Anant Narayan Kulkarni (A I R 1945 Bom. 413). That was a case of misappropriation. Two complaints were filed against the accused in the first instance, and he was acquitted in both. In the trial for the third offence the accused objected that in. view of his previous acquittal the proceedings were barred under section 403, Cr. P. C. and that he was entitled to acquittal. It was held that even though the plea of autrefois acquit was not technically available to the accused, the principle of it was available to him in the interest of justice and that the accused should not be tried again in respect of a third offence and should be acquitted. Again in Din Dayal Shrivastana v. State of Vindhya Pardesh (A I R 1953 Vindhya Pardesh 35) it was observed that although the case was not governed by section 403 in terms yet the principle embodied in that section was applicable in a case where the prosecution intentionally kept ‑in reserve some items of criminal misappropriation and commenced prosecution with regard thereto after the acquittal of the accused in an earlier trial on other items. The learned Judge quoted with approval the following observations appear ing in Nandrana Agarwala v. Emperor (A I R 1947 All. 348):‑‑ "High Court is reluctant to interfere with the ordinary course of law and substitute its own judgment for the judgment of the Magistrate, who is trying the case, before the completion of the trial. But where the facts are so preposterous that the High Court feels satisfied that on the admitted facts there is no case against the accused, and where the High Court is clearly of the opinion that a further prolongation of the prosecution would amount to harassment and abuse of the process of the Court, it is the duty of the High Court to interfere under section 561‑A, Criminal Procedure Code, and put an end to this abuse."

15. Lastly In re: Godvarthy Bliashyakaracharyulu (A I R 1960 Andhra Pradesh 164), which is also a judgment leaning in favour of the subject, the relevant observations are as follows:‑ "It is manifestly unjust for an accused to be tried as many times as there are offences. Hence the salutary provisions of section 234 enabling the Court to try the three charges at a time. No doubt separate trials for each of the offences may not be illegal but are highly inexpedient. With due respect to the observations in Sidh Nath v. Emperor (A I R 1929 Cal. 457) I am unable to hold that the principle of autrefois convict or the extended principle embodied in section 403, Criminal Procedure Code, can save the accused. For the principle of autrefois convict to have any bearing, there must be a conviction in respect of the same offence. It would be a patent violation of the principle and a contra vention of the terms of section 403 if the accused should ask for relief on that principle. It is a distinct offence altogether that is charged. Nevertheless under section 561‑A the High Court has power to interfere to secure the ends of justice. When the principles of justice and equity not specifi cally embodied in the provisions of the Code call for application, it is this provision that has to give the accused justice (See Chaman Lal v. Emperor A I R 1943 Lah. 304). I consider this is a fit case in which the proceedings against him now pending before the Judicial First Class Magistrate Vizianagaram should be quashed and the accused acquitted."

16. In the case of Chaman Lal v. Emperor (A I R 1943 Lah. 304) to which reference has been made in the above quotation, it was held by Blacker, J., while dealing with repeated prosecution of the peti tioner Chaman Lal for offences falling under section 420, P. P. C., etc., that it would amount to be abuse of the process of the Court for the petitioner to be prosecuted in the remaining five cases when the evidence was identical with that in the three cases in which he had been earlier acquitted.

17. After a careful consideration of the authorities I find myself in respectful agreement with the view that in cases of acquittal where section 403, Cr. P. C. does not apply in terms, the principle embodied in the section may be properly invoked in order to meet the ends of justice. When a person has been tried on certain charges and acquitted, it will be clearly unjust and highly oppressive and amount to an abuse of the process of the. Court to permit his repeated prosecution on identical evidence in respect of identical charges, even though relating to different items. While the interest of the community at large is no doubt paramount, it is also the duty of the High Court to ensure that the process of the Court is not used in a manner oppressive to the individual citizen. It is clear that the subse quent prosecution cannot but result in acquittal. I consider, therefore, that the subsequent trial on identical evidence and in regard to identical charges should not be allowed against those accused who have been acquitted by a competent Court in an earlier trial.

18. However, the same principle cannot be invoked in the case of a person who has been convicted at the previous trial, for the reason that the punishment awarded at the previous trial has no relation to the charges and offences which form the subject‑matter of the subsequent trials, and if there is evidence to warrant the conviction of the accused, as would prima facie appear to be the case in view of his conviction at the earlier trial on identical charges on the basis of identical evidence, then the ends of justice require that he should face the subsequent trial and receive the requisite punishment in respect of the subsequent charges and offences. It is clear, however, that these observations have no reference to those cases which fall within the purview of section 403, Cr. P. C., as such cases will be governed by the relevant provision of the law itself.

19. On the view which I have expressed above, the peti tioner Tahir. Alam has no case. He has already been convicted on two counts of forgeries, etc., and he must face his trial in respect of the remaining 69 forgeries alleged against him. It is, however, clear that as far as the charge under section 5 (2) of the Prevention of Corruption Act (II of 1947) is concerned, he has already been convicted for being found in possession of pecuniary resources beyond his legitimate means of income and, therefore, he cannot again be convicted on the same count.

20. As regards the petitioners Muhammad Ikram and Hassan Javaid, the same position obtains in their cases as well in so far as the charge under section 5 (2) of Act Ii of 1947, based on the possession of property and financial resources beyond their legitimate means, is concerned. Hassan Javaid has already been convicted under section 5 (2) on this count and it is stated that there is no other recovery except the one which was alleged against him at the previous trial. It is, therefore, clear that on this behalf his case would be covered by subsection (1) of section 403, Cr. P. C. The petitioner Muhammad Ikram has been acquitted on this charge and he would again be protected by subsection (1) of section 403, Cr. P. C.

21. However, with regard to the other charges, namely, abetment of forgery and cheating, etc., I had requested the learned counsel for the parties to scrutinise the evidence which the prosecution proposes to produce to the 23 cases now pending against them, so as to ascertain whether this evidence is identical with that which was produced at the previous trial in which Muhammad Ikram and Hassan Javaid were acquitted. As a result of this scrutiny it transpires that there is additional evidence against the petitioner Muhammad Ikram in cases bearing Nos. 103, 105, 108, 110, 113, 114 and 1.17 of 1964, evidence which was not before the Court in the previous case. In the other 16 cases the evidence is admitted to be identical with that produced at the earlier trial. It is clear that no justification is made out for quashing the proceedings in the seven cases just mentioned, while proceedings in the remaining 16 cases cannot be allowed to continue as they would amount to an abuse of the process of the Court.

22. As regards the petitioner Hassan Javaid, the position is that in ten cases, namely, bearing Nos. 102, 103, 112, 115, 118, 119, 120, 121, 122 and 123 of 1964 there is additional evidence to connect Hassan Javaid with the offences alleged to have been committed, evidence which was not produced at the earlier trial. These ten cases must; therefore, continue, whereas the remaining 13 cases cannot be allowed to continue as the evidence to be produced in them is identical with that which has already failed against this petitioner.

23. One last point raised by the learned counsel for the petitioners may also be noticed, namely, that the offences were committed several years ago, i.e., in the years 1956, 1957, 1958 and 1959, but so far only one case has been finalised, and that if the remaining cases are to be finalised at this pace, the petitioners would be facing these trials for perhaps the rest of, their lives. 'there has undoubtedly been inordinate delay in the disposal of the first trial, but it seems to me that the time taken by that trial is not a true index of the time which may be required to dispose of the cases which will now be permitted to proceed. The entire evidence which the prosecution wishes to adduce is already on the record and what is needed is a determination on the part of the learned Special Judge to dispose of the cases without further delay.

24. As a result of the foregoing discussion, I would dismiss Tahir Alam's petition, namely, Cr. M. 1323 of 1964, with the result that all the 23 cases shall proceed against him. The petition of Muhammad Ikram, namely, Cr. M. 840 of 1964, is accepted to the extent that proceedings in 16 cases out of the 23 are quashed as against him and he shall be prosecuted only in the remain ing seven cases bearing Nos. 103, 105, 108, 110, 113, 114 and 117 of 1964. Finally, the petition of Hassan Javaid, namely, Cr. M. 885 of 1964, is accepted to the extent that proceedings in 13 cases pending against him are quashed and only ten cases bearing Nos. 102, 103, 112, 115, 118, 119, 120, 121, 122 and 123 of 1964 shall proceed against him. The proceedings which are now to continue against the three petitioners are, of course, subject to my earlier observations regarding the conviction of Thair Alam and Hassan Javaid and the acquittal of Muhammad Ikram in the previous trial on the charge under section 5 (2) of Act II of 1947. K. B. A. Order accordingly.