Perumal Reddy and Others vs State by Sub-Inspector of Police, CCIW, C.I.D., Vellore

Paul, J.—These two petitions are under S. 482, Crl. P.C. invoking the inherent jurisdiction of this Court for the purpose of quashing the

criminal proceedings launched against the petitioners in C.C. Nos. 28 and 29 of 1978 on the file of the Sub-Divisional Judicial Magistrate,

Cheyyar. It appears that these petitioners, the President, Secretary and the Directors of the Iyppedu Cooperative Credit Union Were previously

tried, in S.C. Nos. 5 to 7 of 1974 for offences under Ss. 409,467 and 471-A. etc. of the Indian Penal Code, and were acquitted of those

offences. The charge sheets in those cases were filed on 27th May, 1973 and were the result of the investigation made by the police on a

complaint laid by the Deputy Registrar of Co-operative Societies to the Superintendent of Police on 23rd June, 1970 after an enquiry under S. 65

of the Co-operative Societies Act had been held and the enquiring officer had filed his report on 24th April, 1967.

In S.C. No. 5 of 1974 the petitioners were tried in respect of two instances of criminal breach of trust, falsification of accounts, etc. alleged to

have been committed by them in the month of December, 1964, In S.C. No. 6 of 1974, the petitioners were tried in regard to two instances of

criminal breach of trust, falsification of accounts, etc. committed during the month of March 1965. In S.C. No. 7 of 1974 they were tried in regard

to two instances of criminal breach of trust and falsification of accounts, etc. committed during the month of March, 1965, but were acquitted in all

these cases. Subsequently, the Police filed two charge-sheets against the petitioners on 31st October, 1977. The first charge sheet related to two

instances of criminal breach of trust, falsification of accounts, etc. committed during December, 1965 and the other charge sheet related to one

instance of criminal breach of trust and falsification of accounts, etc, committed during the month of December, 1965 and they have been taken on

file as C.C.28 and 29 of 1978 by the learned Sub-Divisional Judicial Magistrate, Cheyyar. It is under these circumstances that the petitioners have

come up before this Court asking for the criminal proceedings against them to be quashed in exercise of the inherent jurisdiction of this Court under

S. 482, Crl. P.C. on the ground that the charge sheets which were the basis of the trials in S.C. 5, 6 and 7 of 1974 and the charge sheets which

are the basis of the trials to be held in C.C.28 and 29 of 1978 resulted from the investigations conducted on the complaint by the Deputy Registrar

of Co-operative Societies to the Superintendent of Police on 23rd June, 1970 which complaint embraced the subject matters of all these charge

sheets, and which complaint itself is based on the report filed after an enquiry under S. 65 of the Co-operative Societies Act on 24th April, 1967.

Mr. Vibishanan, on behalf of the petitioners has first of all invoked the principle of authorities acquit as barring the present prosecution of these

accused persons after they had been acquitted in S.C.5 to 7 of 1974. Secondly, he has raised the doctrine of issue estoppels and thirdly, he has

invoked S. 300, Crl. P.C. and tried to show that this case will be covered by the provisions of that section.

Though the principle of res judicata as contained in S 11 C.P. Code does not apply mutatis mutandis to criminal cases, yet that principle as

applied to criminal Courts is enshrined in S. 300, Crl. P.C. S. 300, Crl. P.C. says that ''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 under Sub-s.(l) of S. 221 or for which he might have been convicted under Sub-s. (2) thereof. Sub-S.(l) of S. 300 says that ''a person

acquitted or convicted of any offence, may be afterwards tried with the consent of the State Government, for any distinct offence for which a

separate charge might have been made against him at the former trial under Sub-s. (l) of S. 220''. Now, S. 220, Crl. P.C. reads as follows-

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.

It is needless to consider the other subsections of S. 220, Crl. P.C. now. S. 221 reads as follows-

If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the

accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be

charged in the alternative wife having committed some one of the said offences.

If in such a case the accused is charted with one offence and it appears in evidence that be committed a different offence for which he might

have been charged under the provisions of Sub-s. (l) be may be convicted of the offence which he is shown to have committed, although he was

not charged with it.

Now, reading S. 300 with the aforesaid sections of the Criminal Procedure Code, it is clear that the person who has once been tried by the Court

of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remained in force not

be liable to be tried again (l)for the same offence; (2) nor on the same facts for any other offence for which under S. 221(1) he could have been

charged or tried at the previous trial of could have been convicted under S. 221(2). A person who has been acquitted or convicted of an offence,

may with the consent of the State Government be tried again for any distinct offence for which a separate charge might have been made against him

at the former trial by reason of the provision contained in Sub-s. (l) in S. 220. It is in the light of these provisions that we have to examine the facts

of the case now before me.

I have already pointed out that in S.C. No. 5 of 1974, the petitioners were tried in respect of two instances of criminal breach of trust,

falsification of accounts, etc., which were alleged to have been committed on 28th December, 1964, while in S.C. 6 of 1974 they were similarly

tried in respect of two instances of similar offences committed during the month of March, 1965 and in S.C. 7of 1974 they were tried for two

instances of similar offences committed during the month of March, 1965. Now they are being tried in C.C.28 and 29 of 1978 in respect of two

other instances of criminal breach of trust, etc, committed during December, 1965 and another instance of criminal breach of trust and falsification

of accounts committed during the month of December, 1965.

It cannot be said by any stretch of imagination that all these acts of criminal breach of trust, falsification of accounts, etc, are series of acts to be

committed together to form the same transaction so as to bring them under the purview of S. 220. Each offence of criminal breach of trust and

each offence of falsification of accounts to cover up the commission of the offence of criminal beach of trust is a distinct and separate offence. The

Court certainly cannot try all these instances of criminal breach of trust, falsification of accounts at one trial. It can only try three of such instances

by virtue of the provisions contained in S. 219 which enables a person accused of more than one offence of the same kind, committed within the

space of 12 months from the first to the last of such offences to be tried at the same trial, provided that such instances do not exceed three.

Therefore, it was that three separate charge sheets were filed against the petitioners, each of which was concerned with two instances of criminal

breach of trust, falsification of accounts, etc., and those charge-sheets were separately taken on file and the petitioners were tried for three

offences in S.C. Nos. 5,6 and 7 of 1974. Now at present the petitioners are sought to be prosecuted, in respect of three more instances of

criminal breach of trust, falsification of accounts, etc, committed during the month of December, 1965. Such being the case, merely because the

complaint given by the Deputy Registrar of Co-operative Societies to the Superintendent of Police on 23rd June, 1970 embraced, not only the

instances which were the subject-matter of the trial in S.C.5 to 7 of 1974, that also the instances which are subject-matter of the trial in S.C.28

and 29 of 1978, and that complaint was based on the report filed by the Co-operative Inspector after an enquiry under S. 65 of the Co-operative

Societies Act, which covered all these instances, it cannot be argued that the trials in C.C.28 and 29 of 1978 would be barred under S. 300, Crl.

P.C.

The Supreme Court in Jaidev v. State of Punjab 1968 1 S.C.W.R 445 pointed out in a similar case that the petitioner''s trial there was under S.

233 of the Crl. P.C. and not under S. 234 read with S. 222(2), Crl. P.C. of 1898. In the case before the Supreme Court, 21 prosecutions were

launched against an accused person arising out of one complaint. At first 10 prosecutions were, launched against the accused and he was

convicted in some and acquitted in some. Subsequently 11 more prosecutions were launched against him and that was objected to as being barred

under S. 403(1), Crl. P.C. of 1898. The Supreme Court however held that the latter prosecutions were not hit by S. 403(1), Crl. P.C. and

pointed out that the appellant therein had been prosecuted for various misappropriations alleged to have been committed by him and each one of

these misappropriations is a distinct offence by itself and therefore it was open to the Court to separately charge him and separately try him for

those offences. It further pointed out that the normal rule in respect of trial of criminal cases is that laid down in S. 233 of the old Code, that Sub-s.

(2) of S. 222 provides that when an accused is charged with criminal breach of trust or dishonest misappropriation of money it would be sufficient

to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to

have been committed without specifying particular items or the exact dates and the charge so framed shall be deemed to be a charge of one

offence within the meaning 67 S. 234, provided that the time included between the first and the last of such dates does not exceed one year. The

Supreme Court pointed out that Sub-s. (2) of S. 222, Crl. P.C. 1898, was an enabling provision and it is not incumbent on the prosecution to have

recourse to that provision in each case. In the case now before me also, the prosecution did not have recourse to that provision at all. The

Supreme Court further pointed out that Sub-s. (2) of S. 403, Crl. P.C. 1898 (which is analogous to S. 300, Crl. P.C. of 3973), specifically

provides that a person acquitted or convicted of any offence may afterwards be tried for a distinct offence for which a separate charge might have

been made against him in the former trial and that it was not disputed that in respect of the offences for which the appellant was tried and convicted

or acquitted, separate charges might have been made against him and as such there was no basis for the plea that the prosecutions were bit by S.

403(i), Crl. P.C. Therefore, it is clear that S. 300, Crl. P.C. of 1973 cannot be invoked by the petitioners as a bar to the launching of the

prosecutions against them in C.C. Nos. 28 and 29 of 1978 on the file of the Sub-Divisional Judicial Magistrate, Cheyyar. With regard to the

doctrine of issue-estoppels also, in the circumstances of this case, that doctrine cannot be invoked in favour of the petitioners; But Mr.

Vibhishanan, however, urged that he is not pressing that issue now before me but would be content to bring these cases within the ambit of the

decision of the Supreme Court in Jaidev v. State of Punjab 1968-l-SC.W.R.445.

Mr. Vibhishanan next endeavored to persuade me to quash the criminal proceedings on the ground of the peculiar circumstances of this case.

He pointed out that the report against the petitioners by the Cooperative Inspector after an enquiry under S. 65 of the Co-operative Societies Act

was filed on 24th April, 1967, and after three years thereafter the complaint against them was laid by the Deputy Registrar before the

Superintendent of Police and in the year 1973 three charge sheets were filed against them and those charge-sheets resulted in S.C.5, 6 and 7 of

1974 in which they were eventually acquitted of the charge on 11th March, 1974 and thereafter only on 31st October, 1977 the prosecution laid

the present charge-sheets which have resulted in C.C.28 and 29 of 1978 on the file of the Sub-Divisional Judicial Magistrate, Cheyyar. It is in

these circumstances that Mr. Vibhishanan has pressed for the invocation of the inherent jurisdiction of this Court. He attempts to derive support for

his plea in the observations of the Supreme Court in the aforesaid decision. In that decision, the Supreme Court after holding that the subsequent

prosecutions were not barred under S. 403, Crl. P.C. of 1898, however pointed out therein that 10 prosecution had been launched against the

accused person there at first and after he was tried and acquitted in some of them and convicted in some of them and had served out the sentence

imposed on him, 11 other prosecutions were launched 4 years later, i.e., in the year 1961. It further pointed out that if the present prosecutions had

been launched against the accused person along with the other prosecutions then even if he should have been convicted in these cases, it was most

likely that the sentences that might have been awarded to him would have been ordered to run concurrently and that apart, fresh batch of

prosecutions have been launched nearly four years after the earlier prosecutions were launched. It was in those circumstances that the Supreme

Court felt it would not be in the interests of justice to allow those prosecutions to go on.

But then, in the case now before me, even though the present prosecutions have been filed nearly 3 1/2 years after the disposal of S.C. 5, 6 and

7 of 1974, the petitioners were acquitted in those sessions cases and that is a significant difference between this and the case which came up

before the Supreme Court in the aforesaid decision.

Yet another decision cited by Ramekbal Tiwary Vs. Madan Mohan Tiwary and Another, There also there was a consideration of S. 403, Crl.

P.C. of 1898 and the Supreme Court rejected the contention raised on behalf of the accused person that S. 403(1) would bar the subsequent

prosecution of the accused person. But the Supreme Court, nevertheless, set aside the order of the Additional Sessions Judge ordering the

commitment of the appellant on the ground that in the circumstances of that case they thought that it was not expedient that the appellant should be

tried after such a long lapse of time. In that ease a chargesheet was laid against the accused persons for an offence under S. 307 but the learned

Magistrate decided to try the accused persons for offences under Ss. 326 and 338, I.P.C., on the ground that the evidence did not disclose an

offence under S. 307 and therefore the Magistrate tried the accused persons for offences under Ss. 326 and 388, I.P.C. and acquitted them on

13th July, 1960. Subsequently, an application in revision was made to the Additional Sessions Judge who set aside the orders of the Magistrate

and directed the Magistrate to commit the appellant and other accused to take their trial before the Court of Session on charges under S. 307 ,

I.P.C, etc. That order was taken in revision to the High Court which affirmed that decision of the learned Additional Sessions Judge and then the

matter went up before the Supreme Court. Before the Supreme Court disposed of the matter, 7 years had elapsed since the accused was

acquitted by the Magistrate; and it was in view of the long delay that the Supreme Court set aside the order of the Additional Sessions Judge

confirmed by the High Court. Such a long lapse of time had not occurred in the case now before me. The offences committed by the petitioners

are serious offences and as such, considering the circumstances of this case, I do not think it expedient to invoke the powers of this Court under S.

Crl. P.C. to quash the proceedings launched against the petitioners. These two petitions are therefore, dismissed.