Babu Lal Mahton vs Ram Saran Singh

Courtney-Terrell, C.J.—The facts of this case are unusual but simple and they give rise to an interesting point of law.

On 6th December 1928 a Deputy Magistrate with first class powers was conducting a trial. The petitioner Babu Lal Mahton, suddenly stood up in Court, shouted "Jai Mahabir" and beat one Sam Saran with a shoe. This conduct could be considered from two points of view. Firstly it was an offence u/s 228, I.P.C, that is to say, it was an interruption to a public servant sitting in a judicial proceeding. It was also an offence u/s 355, I.P.C., that is to say, an assault with intent to dishonour Ram Saran. The presiding Magistrate exercising his powers u/s 480, Criminal P.C. punished him for the offence u/s 228, I.P.C. by imposing a fine of Rs. 200 which was duly paid by the petitioner who accordingly purged himself of that offence. Thereafter the assaulted person Ram Saran filed a complaint in the Court of the Sub-Divisional Officer who took cognizance of the offence u/s 355 and sentenced the petitioner to rigorous imprisonment for two years. This conviction and sentence were upheld on appeal by the Additional Sessions Judge and the petitioner now moves this Court in revision. His contention is and has been throughout, that he is entitled to rely upon the plea of autrefois convict by reason of his conviction by the Magistrate u/s 228, I.P.C.

It is a fundamental common law rule that no one may be punished twice for the same offence and this has long been held to mean that he may not be punished twice for the same acts or omission irrespective of the exact terms of the charge, and that the test of similarity is whether or not the evidence to obtain a legal conviction on the first charge was in substance the same as that necessary to sustain the second charge. This is a common law rule which subject to certain specific limitations operates in India as well as in England. The specific statement of this rule together with its limitations is contained in Section 403, Criminal P.C. which contains four Sub-sections. These Sub-sections deal with four kinds of cases.

(1) deals with the case of one set of acts or omissions constituting one legal offence only.

(2) deals with the case of one series of acts involving more than one offence.

(3) deals with the case of one set of acts constituting more than one legal offence.

(4) deals with a special cases where a single act or set of acts has had a consequence unknown at or having occurred since the first trial.

Sub-section (1) is as follows:

A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made u/s 230, or for which he might have been convicted u/s 237.

This is a special statement of the rule as applicable to circumstances in which only one offence has been committed. The phrase beginning with the words "nor on the same facts for any other offence" and having special reference to Sections 236 and 237 also contemplates a case where the facts only justified conviction for one offence although other, offence may have been charged, ex abundante cautela u/s 236. The words "might have been charged" indicate that this Sub-section is no extension of the commonlaw rule and mean "might lawfully have been charged" under that section. But Section 236 does not (as does Section 235) contemplate a case in which the series of acts complained of may constitute more than one offence. In my opinion this Sub-section has no application to a case like the present where more than one offence has been committed.

u/s 235, Sub-section (1):

If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person he may be charged with, and tried at one trial for, every such offence.

that is to say, if a person has performed a series of acts A, B, C, D, and if acts. A, B, and C constitute one offence and acts B, C and D, constitute another offence he may be charged with, and tried at one trial, for both of such offences. Sub-section (2), Section 403. limits or rather explains the common law rule as meaning that the acquittal or conviction for the offence constituted by acts A, B and C, will not bar a subsequent trial in respect of the offence constituted by the acts B, C, and D. The offences are distinct and the evidence necessary in the first case is different from the evidence necessary in the second. So that the common law rule is still maintained and is not interfered with by this Sub-section. The Sub-section has no application to the present case in which the entire series of acts constituted both offences.

It is unnecessary for the purposes of this case to consider Sub-section (3). Sub-section (4) is a further explanation and limitation of the general common law rule and is as follows:

A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which ho 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.

It will be noted in the first place that the Sub-section involves in itself that part of the common law rule according to whish an accused cannot rely upon the pleas of autrefois acquit or autrefois convict unless the previous acquittal or conviction was arrived at by a competent tribunal. But a series of acts may constitute more than one offence and the Sub-section says that a person acquitted or convicted of an offence may nevertheless be subsequently tried for any other offence constituted by the same acts if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. Therefore the common law rule has no application, if the first Court was not competent to try him for the offence subsequently charged, notwithstanding that the acts constituting the two offences are identical. In my opinion the words "competent to try the offence" mean that in order to obtain the advantage of the common law rule the accused on the second occasion must shew that the former Court was in a position, had it so chosen to try and acquit or convict the accused of the offence subsequently charged.

It has been contended before us that the words "competent to try" are merely indicative of the rank of the tribunal, that is to say, that if the former tribunal had legal power to try offences of that class the conditions of the Sub-section are fulfilled although the former tribunal might not have been able in the circumstances to have acquitted or convicted the accused of the offence subsequently charged. Some colour is given to this contention by certain decision of the Madras High Court and I refer particularly to the judgment in the case of "In re, Ganapathi Bhatta [1913] 36 Mad. 308." In this case the accused had been tried and acquitted of an offence u/s 211, I.P.C. He could have been charged on the same facts by the Magistrate at the same trial with an offence u/s 182, if the required sanction had been available. Later he was, after the necessary sanction had been obtained, charged u/s 182, and he pleaded autrefois acquit u/s 403, Criminal P.C.

It was contended for the prosecution that since at the time of the first trial no sanction had been given for a charge u/s 182, the Court was not "competent to try" him under that section. The High Court held that sanction was only a condition precedent to the institution of proceedings u/s 182 and that it was the duty of the prosecution to have obtained it before the former trial in which event both sections could have been used. In these circumstances the Court held that the words "competent to try" in Sub-section (4) referred to the jurisdiction of the tribunal which was complete to deal with an offence under both sections, the absence of the sanction not affecting the competence of the tribunal. In my opinion the words competent to try "are equivalent to in a legal position to have tried and acquitted or convicted." That is to say, they refer narrowly to the legal position of the Court at the time of the former trial in relation to the particular offence committed by the accused and not broadly to the jurisdiction of the Court with regard to the class of offence in general. No other reading of these words is in harmony with the general common law doctrine of which a particular aspect only is set forth in the Sub-section and the broader reading would produce an unreasonable anomaly. For it would absolve the plea from the common law test of its validity, that is to say an enquiry whether the accused had been put in peril in respect of the offence.

The Madras decision merely states that in fact the accused had already been in peril of conviction u/s 182, I.P.C. But decisions in the Allahabad and Bombay High Courts, see for example, Emperor v. Jiwan [1915] 37 All. 107, lay down that the necessary sanction being a condition precedent to a trial u/s 182 therefore the accused in such circumstances had never been in peril in respect of the offence subsequently charged.

In my opinion the latter view is correct and the Madras decision was wrongly decided. In Emperor Vs. Tikaram Sakharam Kasar, , the accused had been tried and acquitted for offences under Sections 366, 368 and 375, I.P.C. There had been no complaint by the husband of the woman. He was again convicted on the same facts, at the complaint of the husband, of an offence u/s 498. It was held that a complaint by the husband being a condition precedent to the Court''s jurisdiction to try u/s 498, the former Court not only did not in fact try the offence u/s 498, but was in law incompetent to try that offence and the subsequent conviction was good.

In this case the Magistrate had no cognizance of the offence u/s 355, and, therefore, in the absence of this condition precedent was incompetent to try the petitioner for it. Consequently the petitioner was never in peril of punishment and cannot rely on the plea of autrefois convict. I agree with the decisions of the Magistrate and the Sessions Judge and would dismiss this petition. But in the matter of the sentence I am of opinion that it is far too severe and I would reduce it from two years to six months rigorous imprisonment.

Rowland, J.

I have had the privilege of seeing the judgment of the learned Chief Justice and I concur in the proposed order. The ground for revision is thus stated in the application:

For that the incident being one and the same and the accused having been sentenced to pay a fine of Rs. 200, the second trial u/s 355, I.P.C., is barred by Section 403, Criminal P.C.

Sub-section (1), Section 403, which alone imposes a statutory prohibition on a second trial has been set out in full in the judgment of the learned Chief Justice who has demonstrated that it does not apply to the facts of this case. There being no other statutory provision in bar of the second trial the applicant has not made out that the trial is barred by Section 403.

As regards Section 403(4) I agree with the learned Chief Justice that the High Courts of Bombay and Allahabad in the decisions cited have correctly stated the law.