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Judgment
A. Badharudeen, J
The sole accused in S.C.No.417/2022 on the files of Special Court for the trial of offences under the Protection of Children from Sexual Offences Act (`POCSO Act’ for short) has filed this Crl.M.C under Section 482 of the Code of Criminal Procedure seeking the following prayers:
“Therefore, it is most humbly prayed that, pleased to quash the order dated 11.03.2024 in Crl.M.P.No.306/2023 in S.C.No.404/2022 in the files of Additional District and Sessions Court, Ernakulam, and pass an order to drop all the proceedings against the petitioner in SC No.404/2022 arised from Crime No.291/2021 of Crime Branch in the files of Additional District and Sessions Court, Ernakulam, and to set-aside the Annexure-19 order dated 03.05.2024 up to the extent of dismissal order in Crl.M.P.No.764/2024 in SC No.404/2022 in the files of Additional District and Sessions Court, Ernakulam, in the interest of justice.”
Heard the learned counsel for the petitioner and the learned Public Prosecutor at length on various dates. Here the prosecution alleges commission of offences punishable under Sections 342, 506(i), 354(A)(1)(iv) r/w 354A(3), 376(2)(f) and 376(2)(n) of the Indian Penal Code (`IPC’ for short), by the petitioner.
The grounds upon which the learned counsel for the petitioner seeks quashment of the proceedings could be seen from ground Nos.A to P, as extracted hereunder:
A. Annexure- 3 order is not maintainable either on facts or on law. The sole issue raised in this Crl MC is regarding the scope and application of doctrine of double jeopardy. The rule against double jeopardy provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 300 Cr.P.C; Section 26 of the General Clauses Act; and Section 71 I.P.C. This aspect is decided in Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Anr.
B. All offences in Annexure-1 Court Charge was tried by the very same trail court under Annexur-2 Court charge and convicted for all offence under Annexure-1. Hence a competent court tried the offences u/s 300 Cr.P.
C. The prosecution relying the Scene Mahazar of Crime in Annexure-2 court charge. There is no separate scene Mahazar for Annexure- 1 court Charge or Final report in Annexure-10.
D. The medio -legal report in Annexure-10 pursuant to Annexure- 1 court charge already produced and marked as P16 in the formal trail and examined the very same doctor who prepared P16 was examined as PW19.
E. There is no new material object other than MO1 which is i-Pad. During the course of trail the Public Prosecutor remarked and the trail court recorded that, nothing could be retrieved from i-Pad. Even though no evidence from the i-Pad the trail court convicted for the offence under section 354 on the ground that, if the investigation officer send other i-Pads there will be a possibility of getting the obscene pictures and the investigation officer send it for examination in a wrong place. Hence for the wrong done of Investigation officer victim should not aggrieved. In a criminal case ordinarily the mistake of the wrong of the prosecution should be an advantage to the accused. This is also evident for the prejudice mind of the trail judge.
F. The sole evidence for conviction is Exhibit-P1, which is plastic Cover of Pregnancy test Kit named Pretest, which is alleged to be used in the year of 2019 to check the pregnancy of the victim found in the year of 2021.
G. There is no scientific evidence for conviction for the Annexure-2 Charge, there is no new materials for scientific evidence in the Annexure-1 Court Charge. H. The Majority of the charge witness sighted in Anexure-10 final report are same that of charge witness in Annexure- 11, the earlier case concluded trail. A list of unnecessary witness are in the Annexure-10 including the CW38 Forest Range officer on the ground that, he registered forest cases against the petitioner. What is the relevance of this CW38 in rape case.
I. In the decision reported in State v. Nalini (1999 KHC 726 AIR 1999 SC 2640 1999 (3) KLT SN 23: (1999) 5 SCC 253: 1999 CriLJ 3124: 1999 AIR SCW 1889 1999 (2) Crimes 59: JT 1999 (4) SC 106 : (1999) SCC (Cri) 691), the Hon’ble Supreme Court has explained the maxim nemo debet bis vexari pro eadem causa (no person should be twice vexed for the same offence) which embodies the well-established common law rule that no one should be put to peril twice for the same offence. The principle under S.300 of the Cr P.C. postulates that no man should be vexed with more than one trial for offence arising out of identical acts committed by him. When an offence has already been subjected to judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts. It is further stated that though Art. 20(2) of the Constitution of India embodies a conviction of the same offence, the ambit of the clause is narrower than the protection afforded by S.300 of the Cr.P.C. If there is no punishment for the offence as a result of the prosecution, Art.20(2) has no application. But clause (2) of Art.20 embodies the principle of autrefois convict, 5.300 of the Cr.P.C combines both autrefois convict and autrefois acquit. Petitioner is convicted for all the offences in Annexure-1 court charge in the previous case in Annexure- 2 by the competent court.
J. In 2022 KHC OnLine 152, Udayakumar K. U. v. State of Kerala and Another this Hon’ble court held that, S.300 of the Cr.P.C. has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under S.221(1) of the Cr.P.C., or he could have been convicted for such other offence under S.221(2) of the Cr.P.C. In the case of this petitioner in the above case it is evident from Annexure 1 court charge and Annexure-2 court charge that, the offences going to try by the trail court is upon the very same charge upon the very same set of facts.
K. The Supreme Court decided in Thomas Dana v. State of Punjab, 1959, that in order to request under Article 20(2), the following protection requirements must be met.
1)That there was a previous prosecution.
2)As a result of this the accused was punished.
3)That the punishment was for the same offence.
In the case of this petitioner, there was a previous prosecution, as a result of the previous prosecution the petitioner is punished and convicted. The punishment was for the same offence. Hence the petitioner is entitled for the benefit of Article 20(2) of the Constitution of India.
L. There are two facets for the protection against double jeopardy. Firstly, it will not punish the person who has been previously convicted in respect of the same offence and secondly, it will not inquire into the person who has been acquitted on a same charge on which he is being prosecuted. The Constitution bars double punishment for the same offence.
M. The Hon’ble Supreme Court, in State Vs. Nalini (1999 KHC 726) held that, as the contours of the prohibition are so widely enlarged, it cannot be contended that the second trial can escape therefrom on the mere premise that some more allegations were not made in the first trial. It could have been possible for the prosecution to club both the crimes together since the cause of action had arisen at the very same time and place. From a reading of both the FIRS, it is very obvious that cause of action for both the crimes had arisen in the very same place and same set of facts and in the judgement of the prior trail. But two different crimes have been lodged and separate final reports have been laid upon a separation of time before attaining majority and after attaining majority. It would have been possible for the Investigating Officer, who is common, to club both the matters together. Merely for the reason that different offences could be deciphered second crime No.291/2021, once the petitioner has undergone trial and suffered conviction in Crime No.280/2021, a second trial is barred under S.300 of the Cr.P.C. and therefore, entire proceedings against the petitioner in Annexure-10 Final report is liable to be quashed.
N. The purpose and intent of the constitution framers behind framing the concept of Article 20(2) of the Constitution of India to avoid harassment which shall be caused due to the successive criminal proceedings for the one and same crime.
O. The exception for Section 300 of Cr.P.C held by the Hon’ble Supreme Court, in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, 1962 KHC 523 : AIR 1962 SC 876: 1962 Supp (2) SCR 297: 1962 (1) CriLJ 770 that a fresh complaint/Crime can be entertained that there is manifest error, or manifest miscarriage of Justice in the previous order or when fresh evidence is forthcoming. The test to determine the exceptional circumstances are brought under 3 categories: (1) manifest error (2) manifest miscarriage of Justice, and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. In that case, the second complaint on the same facts can be entertained and no bar on proceeding with it. In the above case there is no Manifest error, there is no manifest miscarriage of Justice and there is no new facts which the complainant/victim had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. Here the specific case of the victim and prosecution is same set of facts and two crimes are segregated on the basis of before attained majority(18 years) and after attained majority. Hence the Exception is also not applicable in this case. It is also pertinent to note that, the crime in Annexure-1 court charge pursuant to Annexure- 11 was registered on 19- 10-2021 and Annexure-2 court charge pursuant to Annexure- 10 was registered on 23-10-2021
P. The prosecuting agency cannot initiate further prosecution contrary to the general principle of trial and the principle of double Jeopardy laid down in S. A. Venkatarman v. Union of India, 1954 KHC 484: AIR 1954 SC 375 1954 SCR 1150 1954 CriLJ 993, Maqbool Hussain v. State of Bombay, 1953 KHC 365 AIR 1953 SC 325 1953 SCR 730: 1953 (2) MLJ 113: 1953 All WR (Sup) 84: 56 Bom LR 13 1953 CriLJ 1432. State of Bombay v. S. L. Apte, 1961 KHC 537 AIR 1961 SC 578: 1961 (3) SCR 107 : 1961 (1) CriL] 725, Leo Roy Frey v. The Superintendent District Jail, Amritsar, 1958 KHC 402 : 1958 SCR 822: AIR 1958 SC 119: 1958 CriLJ 260 and Monica Bedi v. State of A.P., 2010 KHC 4871: 2011 (1) SCC 284: 2010 (4) KLT SN 86: 2011 CriLJ 427 : 2011 (1) SCC (Cri) 22: 2011 (97) AIC 37.
According to the learned counsel for the petitioner, the prosecution in this crime is for the offences already tried and considered by a competent court. Therefore the entire case would require quashment. The learned counsel for the petitioner would submit that the prosecution could not proceed further prosecution contrary to the general principle of trial and the principle of double jeopardy laid down in the decisions in S.A.Venkataraman v. Union of India [1954 KHC 484 : AIR 1954 SC 375 : 1954 SCR 1150 : 1954 CriLJ 993], Maqbool Hussain v. State of Bombay [1953 KHC 365 : AIR 1953 SC 325 : 1953 SCR 730 : 1953 (2) MLJ 113 : 1953 All WR (Sup) 84 : 56 Bom LR 13 : 1953 CriLJ 1432], State of Bombay v. S.L.Apte [1961 KHC 537 : AIR 1961 SC 578 : 1961 (3) SCR 107 : 1961 (1) CriLJ 725], Leo Roy Frey v. The Superintendent District Jail, Amritsar [1958 KHC 402 : 1958 SCR 822 : AIR 1958 SC 119 : 1958 CriLJ 260] and Monica Bedi v. State of A.P., 2010 KHC 4871 : 2011 (1) SCC 284 : 2010 (4) KLT SN 86 : 2011 CriLJ 427 : 2011(1) SCC (Cri) 22 : 2011 (97) AIC 37].
Whereas while opposing quashment prayer, the learned Public Prosecutor would submit that S.C.No.1318/2021 alleging commission of similar offences is pertaining to the period not covered by the present crime. Therefore, the present prosecution for the offences, though similar in nature dealt in S.C.No.1318/2021, committed for the period prior to S.C.No.1318/2021, is liable to be tried separately. Therefore, the quashment could not be considered.
Annexure 2 is the charge framed in S.C.No.1318/2021 and as per the said charge, it could be seen that charges for the offences punishable under Sections 5(l) rw/ 6, 5(p) r/w 6 of the POCSO Act read with Section 5 j(ii) r/w 6, 9(l) r/w 10, 9(p) r/w 10, 11(iii) r/w 12 of POCSO Act as well as under Sections 370(4), 342, 354A(1)(iii) r/w 354A(2), 376(2)(n, 376(2)(f), 313 and 506(i) of IPC are levelled against the petitioner herein and the specific allegation therein was that on 26.07.2019 at 4 p.m, the accused sexually molested the victim, aged 17 years, and thereby committed the above offences. Thus the said prosecution was for an occurrence during the juvenility of the victim. Annexure 1 is the charge framed in S.C.No.404/2022 (present crime) and therein the allegation is that during the period from 11.01.2020 till 24.09.2021 the accused committed sexual molestation against the defacto complainant, who attained majority, and thereby committed offences punishable under Sections 342, 506(i), r/w 354A(1)(iv) r/w 354A(3), 376(2)(f) and 376(2) (n) of IPC. The specific point argued by the learned counsel for the petitioner is that since the first crime registered in this case is Crime No.280/CB/EKM/R/21, the accused ought to have been prosecuted for the offences he committed specifically on 26.07.2019 and the period from 11.01.2020 till July, 2021 and on 24.09.2021. According to the learned counsel for the petitioner, instead of trying the accused in one trial, by excluding the similar offences starting from 26.07.2019 to 10.01.2020, separate charge was filed by the police with a view to have double jeopardy and the same is not permissible under law. He has given much emphasis to Section 223 of Cr.P.C which deals with `What persons may be charged jointly’ and argued that in view of the mandate in Section 223 of Cr.P.C, the petitioner ought to have been tried jointly in both the case in the earlier trial for similar offences and filing of separate charge is nothing but double jeopardy. In this connection, it is relevant to refer Sections 218, 219, 220, 221, 222 and 223 of the Cr.P.C. Section 218 provides that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Section 219(1) of Cr.P.C provides that when a person is accused of more offences than one of the same kind committed within 12 months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for, any number of them not exceeding three. Section 219(2) provides that offences are of the same kind when they are punishable with the same amount of punishment under the same section of the IPC or of any special or local laws. Section 220 of Cr.P.C deals with trial of more than one offences and as per Section 220, if in one series of act so connected together the more offence the one he may be charged and tried for every set of facts. Section 223 reads as under:
“223. What persons may be charged jointly
The following persons may be charged and tried together, namely;
persons accused of the same offence committed in the course of the same transaction;
persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
persons accused of different offences committed in the course of the same transaction;
persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges;
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Sessions may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."
Thus the question arises for consideration is whether the contention raised by the learned counsel for the petitioner that trial of this matter would amount to double jeopardy or the same is barred under Section 300 of IPC, is sustainable in the facts of the given case? Here as I have already pointed out, initially the accused was tried for various offences specifically committed on 26.7.2019. In the present crime, the allegation is that he had done the offences charged during the period from 11.09.2019 till July, 2021 and on 24.09.2021. Section 223(4) of Cr.P.C provides that when a person is accused of more offences one of the same kind committed within 12 months from the first to the last of such offences, he may be charged with and tried at one trial for, any number of them not exceeding three. In the present crime, the allegation as to commission of offences is from 11.01.2020 till 24.09.2021. If at all the principle under Section 223(4) is applied, the accused could have been tried for the overt acts done starting from 26.07.2019 to 25.07.2020 only and not for the offences committed from 26.07.2021 to 27.09.2021. To be more specific, the offences alleged in the present crime are committed excluding one year starting from 26.07.2020 to July, 2021 and on 24.09.2021. If so, the offences in these crimes are not committed within a period of 12 months, so as to try the accused together in view of the mandate of Section 223(4) of Cr.P.C.
In the present case the trial is intended regarding the allegation of commission of sexual assault at the instance of the petitioner for the period from 11.01.2020 to July, 2021 and specifically on 24.09.2021. It is true, as argued by the learned counsel for the petitioner, that as per Section 300(4) of Cr.P.C, a person once convicted or acquitted, not to be tried for the same offence though it is permissible to try such an accused for any distinct offence for which a separate charge might have been made against him. Similarly, as pointed out by the learned counsel for the petitioner, the legal maxim memo debet bis vexari pro eadem causa (no person should be twice vexed for the same offence) which embodies the well-established common law rule that no one should be put to peril twice for the same offence also has application in an appropriate case. Similarly, Article 20(2) of the Constitution of India also prohibits double jeopardy, ie., adjudicating a crime which already ended either in acquittal or conviction again. That is to say, Article 20(2) embodies the principle of autrefois convict and autrefois acquit. In the decision Thomas Dana v. State of Punjab (supra), the Apex Court held that in order to consider under Article 20(2) of the Constitution of India, the following protection requirements must be met:
1)That there was a previous prosecution.
2)As a result of this the accused was punished.
3)That the punishment was for the same offence.
As I have already pointed out as per Section 219, three offences of the same kind committed within a year may be charged together. As per Section 223, when persons accused of the same offence committed in the course of the same transaction and persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence, such persons may be charged and tried together. Similarly, as per Section 223(4), persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months, may be charged and tried together. Here the prosecution case is that in S.C.NO.1318/2021, the accused was tried alleging multiple offences including offences under the POCSO Act since the occurrence pertaining to the said crime was specifically on 26.07.2019 and on the said date, the victim was a juvenile. In the present case, the prosecution allegation is that when the victim attained majority also, the accused subjected her to sexual assault from 11.01.2020 till July, 2021 and specifically on 24.09.2021. If so, it could not be held that the accused was tried for the offences alleged in between 11.01.2020 and 24.09.2021 and his earlier trial was only pertaining to the occurrence on 26.07.2019 when the victim was a juvenile. Therefore the principle of double jeopardy or the bar under Section 300 of Cr.P.C could not be applied in the facts of this case. For the said reasons, this Crl.M.C is liable to fail.
Accordingly, this Crl.M.C stands dismissed.
Interim order already granted shall stand vacated. Registry is directed to forward a copy of this order to the jurisdictional for information and further steps.