T.P. Gopalakrishnan vs State of Kerala

Code of Criminal Procedure, 1973: s.300(2) – Subsequent prosecution for any distinct offence – Failure to take prior consent of State Government – Effect thereof – Held: When the charge of the second trial is for distinct offence, the trial is not barred – A person acquitted or convicted of any offence may be tried for a distinct offence for which a separate charge might have been framed with the prior consent of the State Government – In the instant case, even if the allegations are different from those in the previous cases, the prosecution having failed to obtain the prior consent of the State Government, the trial is unlawful.

Code of Criminal Procedure, 1973: Double jeopardy and double punishment – Difference between – Double punishment may arise when a person is convicted for two or more offences charged in one indictment – However, the question of double jeopardy arises only when a second trial is sought on subsequent indictment fowling a conviction or acquittal on an earlier indictment – Doctrine of double jeopardy is not a protection to the individual from peril of second sentence or punishment, nor to the service of sentence for one offence – It is a protection against double jeopardy for the same offence that is, against a second trial for the same offence Constitution of India – Art. 21 – Right to life and Liberty – Scope of – Right to live includes within its ambit the right to live with dignity – Protection against the double jeopardy is also included under the scope of Art. 21 – Prosecuting a person for the same offence in same series of facts, for which he has previously either been acquitted or has been convicted and undergone the punishment, affects the person’s right to live with dignity – Double jeopardy.

Doctrines/Principles: Doctrine of double jeopardy – Application thereof – Discussed – Maxim nemo deber bis vexari, si costest curiae quod sit pro una et eadem causa. Allowing the appeals, the Court

HELD: 1. Section 300 of the CrPC is based on the maxim nemo deber 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. In order to bar the trial of any person already tried, it must be shown that: (i) 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, (ii) He has been convicted or acquitted at the trial, and (iii) Such conviction or acquittal is in force. [Para 23][495-B-D]

2. Article 20(2) of the Constitution of India incorporates within its scope, the plea of autrefois convict, meaning, previously convicted as known to British jurisprudence, or the plea of double jeopardy known to the American Constitution. However, the said concepts are circumscribed in Article 20(2) which provides that there should be not only a prosecution but also punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. On a plain reading the of sub clause (2) of Article 20, it is clear that the said provision bars a second prosecution only where the accused has been both prosecuted and punished for the same offence previously. [Para 26][495-G-H; 496-A-B]

3. There are three conditions for the application of the clause. Firstly, there must have been previous proceeding before a court of law or a judicial tribunal of competent jurisdiction in which the person must have been prosecuted. The said prosecution must be valid and not null and void or abortive. Secondly, the conviction or acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and same set of facts, for which he was prosecuted and punished in the first proceeding. Thirdly, the subsequent proceeding must be a fresh proceeding, where he is, for the second time, sought to be prosecuted and punished for the same offence and same set of facts. In other words, the clause has no application when the subsequent proceeding is a mere continuation of the previous proceeding, for example, where an appeal arises out of such acquittal or conviction. In order to sustain a plea of double jeopardy, it must be shown that all the aforesaid conditions of this clause are satisfied. [Para 27][496-C-F]

4. Section 300 of the CrPC and Article 20 of the Constitution of India use the term ‘same offence’. Before dealing with the issue at hand, it is necessary to understand what the term ‘same offence’ means and includes. The term ‘same offence’ in simple language means, where the offences are not distinct and the ingredients of the offences are identical. Where there are two distinct offences made up of different ingredients, the embargo under Article 20 of the Constitution of India, has no application, though the offences may have some overlapping features. The crucial requirement of Article 20 is that the offences are the same and identical in all respects. [Para 28][496-F-H]

5. The concept of double jeopardy can also be understood in terms of Article 21 of the Constitution. Protection against double jeopardy is also included under the scope of Article 21 of the Constitution of India. Prosecuting a person for the same offence in same series of facts, for which he has previously either been acquitted or has been convicted and undergone the punishment, affects the person’s right to live with dignity. Double jeopardy is often confused with double punishment. There is a vast difference between the two. Double punishment may arise when a person is convicted for two or more offences charged in one indictment however, the question of double jeopardy arises only when a second trial is sought on a subsequent indictment following a conviction or acquittal on an earlier indictment. This doctrine is certainly not a protection to the individual from peril of second sentence or punishment, nor to the service of a sentence for one offence, but is a protection against double jeopardy for the same offence that is, against a second trial for the same offence. [Paras 29 and 30][497-A-F]

6. The appellant was earlier charged for offences under Section 13(1)(c) read with Section 13(2) of the Act and Sections

409 and 477A of the IPC and was convicted in two cases and acquitted in one case. The present two cases arise out of the same set of facts and the same transaction as that in the previous three cases wherein the appellant was tried and convicted/acquitted respectively. For an offence to be considered as the ‘same offence’ as the last offence, it is necessary to show that the offences are not distinct and the ingredients of the offences are identical. The previous charge as well as the present charge is for the same period of misappropriation. The matter of offences in all the previous three cases and the present case are the same and are said to be committed in the course of same transaction while holding the one and same post of Agricultural Officer by the appellant. [Para 37][500-B-D]

7. The Trial Court has erred in holding that the facts of previous case and misappropriation committed by the accused are not the same as the facts relevant to present case. The charges in the present case are for relevant period from 27.04.1992 to 25.08.1992 and 01.03.1993 to 12.04.1994 which time period is same as in the previous three cases, that is, 28.03.1994 to 02.04.1994, 15.12.1992 to 31.03.1993 and 05.03.1994 to 08.03.1994 respectively. Thus, it can be said that the present cases pertain to the same set of facts and are in respect of same offences, for the same period, committed in the same capacity as the previous three cases wherein the appellant herein was already prosecuted in the year 1999. The core allegation in all these five cases pertains to misappropriation by making false entries in the cash book. The allegation of the prosecution that two-thirds of the auction amount was not remitted to the treasury would be covered under the allegations of misappropriation of funds, that the appellant has already been prosecuted for in the year 1999. The appellant is right in contending that the charge in the first three cases were framed on 17.08.1999 which is much after the audit and the prosecution would have been well aware of the misappropriation in respect of the present cases on 17.08.1999. [Para 38][500-E, G-H; 501-A-C]

8. The allegations/offences in the instant cases are the same as the allegations/offences in the previous three cases, therefore as per the mandate under Section 300(2) of the CrPC, the consent of the State Government is necessary. Even if it is assumed for the sake of argument that the allegations are different in present cases from those in the previous cases, the prosecution has failed to obtain the prior consent of the State Government necessary to prosecute the accused-appellant and therefore the trial in the instant case is unlawful. [Para 39][501-D-F]

S.A. Venkataraman v. Union of India AIR 1954 SC 375 : [1954] SCR 1150; Maqbool Hussain v. State of Bombay AIR 1953 SC 325 : [1953] SCR 730; Maneka Gandhi v. Union of India 1978 AIR 597 : [1978] 2 SCR 621; Vijayalakshmi v. Vasudevan (1994) 4 SCC 656; Thakur Ram v. State of Bihar AIR 1966 SC 911 : [1966] 2 SCR 740; State (N.C.T. of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79 – relied on.