TMI Blog2022 (12) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... he was previously charged. 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 - 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 in Thakur Ram vs. State of Bihar [ 1965 (11) TMI 161 - SUPREME COURT ]. The Trial Court has held that in the present case, the allegation is that after conducting the auction of coconuts and half filled grains, two-thirds of the amount collected from the successful bidder was not remitted to the treasury, however, in the earlier cases, the allegations were that the accused misappropriated some amount to be paid to the proprietor of Agricultural Marketing Corporation, Kozhikode, Kerala State Coir marketing Corporation, Kozhikode from the State Seed Farm, Perambra by forging and falsifying records - it can be said that the present cases pertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entenced 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. 4. The appellant herein was released on bail vide order of this Court dated 30.01.2017 subject to fulfilment of the conditions imposed by the Trial Court. Facts of the Case: 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 13(1)(c) read with Section 13(2) of the Act and Sections 409 and 477A of IPC. The Accounts Officer conducted an audit in the State Seed Farm, pertaining to the period from 31.05.1991 to 31.05.1994 and gave a report. On the basis of the same, the two cases, out of which this appeal arises, were registered against the appellant herein. The FIR in respect of the present cases was registered on 03.12.2001. It is prosecution s case that it was in the re-audit, that these instances were unearthed and therefore the two cases, C.C. No.24/2003 and C.C. No.25/2003, were registered against the appellant herein. 8. Charges were framed against the accused for the said offences on 30.06.2007 and the same were read over and explained to the accused to which the accused pleaded not guilty and claimed to be tried. The accused filed an application for joint trial, being CMP No. 1019 of 2008 which was allowed and therefore both the cases were tried together. The prosecution examined a total of 13 witnesses. Thereafter, statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 ( CrPC , for short) were recorded. The accused denied the allegations and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 098/- being two-thirds of the proceeds from the auction of 1049 kgs of half-filled grains auctioned on the same date and Rs.488.80/- being the price of 104 coconuts harvested on 24.08.1992 and 25.08.1992 were also not remitted to the SubTreasury and the accused had misappropriated the said amounts for his own gain. Similarly, an amount of Rs.58,671/- was misappropriated by the accused from the auction proceeds of coconuts harvested from the State Seed Farm, Perambra from 01.03.1993 to 12.04.1994. vi. That the charges levelled in the present two cases were for the period from 27.04.1992 to 25.08.1992 and from 01.03.1993 to 12.04.1994. In the previous case, the accused had misappropriated some amount to be paid to the Proprietor, Agricultural Marketing Corporation, Kozhikode; Kerala State Coir Marketing Corporation, Kozhikode, from the State Seed Farm, Perambra by falsifying and forging the records. That the accused also misappropriated some amounts to be paid to Kerala State Cooperative Marketing Federation, Kozhikode. The said amounts were neither accounted in the cash book, nor were they disbursed to the beneficiaries. However, in the present case, after conducting the auction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an Agricultural Officer at the State Seed farm, Perambra for the period from 07.06.1994 to 24.04.1997, he did not receive any cash book for the period from 10.02.1992 to 11.03.1994. The appellant herein entrusted the cash book for the period from 12.03.1994 to 03.06.1994 and cash balance of Rs.2,763/- after PW4 took charge. That from the evidence of PW4, it was clear that he did not get the cash book at the time of taking charge and only after he assumed charge, the appellant entrusted to him the cash book and the cash balance. When there is no challenge with regard to the fact that the appellant had handed over the cash book for the period from 12.03.1994 to 03.06.1994, it goes without saying that he had never handed over the earlier cash book. No further proof was required. v. That as a responsible gazetted officer, the appellant ought to have exercised more caution and therefore, could not wash his hands off by stating he was dependent on his subordinate staff, since he had additional charge of other farms also. He ought to have kept the cash book and maintained it properly and made timely entries. The appellant clearly removed the cash book and did not return the same for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present cases was filed on 03.12.2001 after the appellant herein was dismissed from the service and the judgment of the Trial Court was passed. The allegations/offences in the present two cases could have been framed at the previous trial and the appellant herein could have been tried for the same along with the trial of the earlier three cases. 14.5 If the accused was to be tried again for the present offences, previous consent of the State Government is necessary as is mandated under sub-section (2) of Section 300 of the CrPC. 14.6 The charges framed in the present case pertain to several acts of misappropriation and falsification of accounts. The same were allegedly committed in the course of same transaction/same series of acts. For a series of acts to be regarded as the same transaction, they must be connected. That the different acts of misappropriation alleged against the accused are interlinked, connected with proximity of time and place and community of purpose and design. 14.7 During the period in question, the appellant herein held an additional charge of some other farms and therefore had to depend heavily on his subordinates at the office. 14.8 The convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in same set of facts. That prosecuting the appellant herein in the present two cases would amount to double jeopardy. In India, protection against double jeopardy is a fundamental right enshrined under Article 20(2) of the Constitution of India. Section 300 of the CrPC is also based on the said principle. 18. Before proceeding further, it is pertinent to understand the concept of double jeopardy. As per the Black s Law Dictionary, 9th Edition, double jeopardy is defined as being prosecuted or sentenced twice, for substantially the same offence . 19. The word jeopardy is used to designate the danger of conviction and punishment which an accused in a criminal action incurs. Jeopardy implies an exposure to a lawful conviction for an offence for which a person has already been acquitted or convicted. The terms double jeopardy , former jeopardy , jeopardy for life or limb , jeopardy for the same offence , twice put in jeopardy of punishment and other similar expressions used in various Constitutions and statutes are to be construed substantially, to the same effect. In other words, double jeopardy is used to denote the protection to an accused, that he has had a fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. Explanation. The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section. 22. 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 sub-sections (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 offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause does not bar subsequent trial if the ingredients of the offences in the previous and subsequent trials are distinct. In Maqbool Hussain vs. State of Bombay AIR 1953 SC 325, this Court has held that clause (2) is not applicable unless the person has been both prosecuted and punished. 27. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, 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. 31. Before this Court, the appellant has vehemently contended that he was employed as the Agricultural Officer, State Seed Farm, Perambra during the period from 31.05.1991 to 31.05.1994. He also held an additional charge of Agricultural Officer, Krishi Bhavan, Perambra for the period from 20.10.1993 to 27.10.1994. The appellant had to rely on his subordinate for performing various office works. The files including stock registers, etc. were handled by the subordinate staff. The cash was received by the Agricultural Assistant during the absence of Agricultural Officer. The appellant herein referred to the testimonies of PW-5 who was a resident of Ulliyeri engaged in coconut business, PW-11 who was the Agricultural Officer at Thayanna, PW-12 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit was done since there were objections that the details of the income of the farm were not checked in detail. The Agricultural Officer for the period from 01.04.1992 to 03.06.1994 was T.P. Gopalakrishnan, the appellant herein; from 04.06.1994 to 06.06.1994 was Mini; and from 07.06.1994 was Vinod Kumar. Since there were irregularities in the previous audit, re-audit was done. In his cross-examination, PW-12 stated that he had not seen the departmental audit that was firstly conducted. During his audit period, the accused was under suspension. In his crossexamination, this witness stated that he did not know the reasons for non-availability of the cash book and other documents in the office. 35. PW-13 is the Deputy Superintendent of Vigilance and AntiCorruption Bureau, Kozhikode who registered the FIR in the present case on 05.12.2001 and seized the documents. This witness carried out the investigation and laid the charges against the accused. The certified copies of the documents showing cases pending against the accused in the present case were also recovered. In his cross examination, PW-13 stated that he came to know of the previous three cases where the accused was named; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. As already discussed above, 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. 38. 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 Trial Court has held that in the present case, the allegation is that after conducting the auction of coconuts and half filled grains, two-thirds of the amount collected from the successful bidder was not remitted to the treasury, however, in the earlier cases, the allegations were that the accused misappropriated some amount to be paid to the proprietor of Agricultural Marketing Corporation, Kozhikode, Kerala State Coir marketing Corporation, Kozhikode from the State Seed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and therefore the trial in the instant case is unlawful. 40. It would not be wrong to say that the charges framed against the accused reveal that there were several acts of misappropriation and falsification of accounts however the same were committed in the same transaction as the one for which he was prosecuted in the year 1999. The series of acts alleged against him are so connected to one another. 41. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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