The State of Bombay Vs. S. L. APTE
& ANR  INSC 284 (9 December 1960)
AYYANGAR, N. RAJAGOPALA DAS, S.K.
CITATION: 1961 AIR 578 1961 SCR (3) 107
CITATOR INFO :
R 1965 SC 87 (6) R 1965 SC 682 (11) F 1988
SC1106 (7,8) R 1989 SC 1 (8)
offence"-Test-Constitution of India, Art. 20(2)-General Clauses Act, 1897
(10 Of 1897), s. 26 -Indian Penal Code, 1860 (XLV of 1860), s. 409-Insurance
Act, 1938 (IV Of 1938), s. 105.
By Art. 20(2) of the Constitution "No
person shall be prosecuted and punished for the same offence more than
once." Section 26 of the General Clauses Act, 1897, provides, "Where
an act or omission constitutes an offence under two or more enactments, then
the offender shall be liable to be prosecuted and punished under either or any
of those enactments, but shall not be liable to be punished twice for the same
offence." The respondents were both convicted and sentenced by the
Magistrate under s. 409 Of the Indian Penal Code and S. 105 Of the Insurance
Act. The Sessions judge on appeal upheld the conviction and sentence under S.
409 of the Indian Penal Code, but set aside the conviction and sentence under
s. 105 of the Insurance Act on the ground that no sanction under s. 107 of the
Insurance Act had been obtained. Sanction was thereafter obtained and a fresh
complaint was filed against the respondents under s. 105 of the Insurance Act.
The trial ended in an acquittal by the Magistrate who held that Art. 20(2) Of
the Constitution and also s. 26 of the General Clauses Act were a bar to
conviction. The State appealed to the High Court against the 108 order of
acquittal but the appeal was dismissed. On further appeal by the State, Held,
that the crucial requirement to attract Art. 202) Of the Constitution is that
the two offences should be identical. it is, therefore, necessary to analyse
and compare the ingredients of the two offences, and not the allegations made
in the two complaints, to see whether their identity is established.
So judged, there can be no doubt that in
spite of the presence of certain common elements between the two, the offences
under S. 409 of the Indian Penal Code and S., 105 of the Insurance Act are
distinct in their ingredients, content and scope and cannot be said to be
Om Prakash Gupta v. State of U. P., 
S.C.R. 423 and State of Madhya Pradesh v. Veereshw ar Rao Agnihotry, 
S.C.R. 868, referred to.
A similar view of the scope of the rule as to
doublejeopardy has always been taken by the American Courts.
Albrecht v. United States, (1927) 273 U. S.
1: 71 Law Ed.
505, referred to.
In S. 26 of the General Clauses Act also the
emphasis is not on the facts alleged in the two complaints but on the
ingredients of the two offences charged.
This construction of Art. 20(2) of the
Constitution and S. 26 of the General Clauses Act, 1897, is precisely in line
with s. 403(2) of the Code of Criminal Procedure.
Consequently, it could not be said, in the
instant case, that the respondents were being sought to be punished for the
same offence so as to attract either Art. 20(2) Of the Constitution or S. 26 of
the General Clauses Act, 1897.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 63 of 1957.
Appeal from the judgment and order dated
March 2, 1956, of the Bombay High Court in Cr. A. No. 1258 of 1955.
H. R. Khanna and R. H. Dhebar, for the
N. S. Bindra, for the respondents (Amicus
1960. December 9. The following Judgment of
the Court was delivered by AYYANGAR, J.-This appeal on a certificate under Art.
134(1) of the Constitution granted by the High Court of Bombay, principally
raises for consideration the application and scope of Art. 20(2) of the
Constitution and s.26 of the General Clauses Act.
109 The facts necessary for the appreciation
of the points involved in this appeal are few and may be briefly stated.
The two respondents-S. L. Apte and Miss
Dwarkabai Bhat-were respectively the Managing Director, and the Managing
Director of the Women's department, of an insurance Company by name 'The Long
Life Insurance Company' which had its headquarters at Poona. A power of
attorney had been executed by the company in favour of the first respondent in
June, 1942, under which he was vested with the power, control and possession
inter alia of the moneys belonging to the company with a view to have them
invested in proper securities. The second respondent as Manaaing Director also
acted under another power of attorney executed by the company in her favour in
or about June, 1942, and by virtue thereof she was assisting the first
respondent in maintaining the accounts of the company. While the respondents
were thus functioning, an audit conducted in 1952 disclosed that considerable
sums of money amounting to over Rs. 55,000 were shown as cash balances with the
Further enquiries made by the Directors
showed that moneys aggregating to over Rs. 95,000 had from time to time been
withdrawn from the company by the first respondent with the assistance and
sanction of the second respondent, professedly for the expenses of the company.
Among the papers of the company was a voucher dated August 9, 1952, evidencing
the withdrawal of this amount by the first respondent and signed by him and
this also bore the signature of the second respondent in token of her sanction.
The respondents, however, could furnish no
proper account of the legitimate expenses of the company for which the amount
was purported to be taken.
Both the respondents were thereupon
prosecuted for an offence under s. 409 of the Indian Penal Code and also for an
offence under s. 105 of the Indian Insurance Act in Criminal Case 82 of 1953. The
learned Magistrate convicted and sentenced both the respondents for both the
offences with which they were charged. The respondents thereupon filed 110
appeals to the Court of the Sessions Judge, Poona and the learned Sessions
Judge, by his order dated May 3, 1954, while confirming the conviction and
sentence on the respondents under s. 409 of the Indian Penal Code set aside
their conviction under s. 105 of the Indian Insurance Act.
The reason for the latter order was the
finding of the learned Sessions Judge that the sanction required by s. 107 of
the Indian Insurance Act which was a prerequisite for the initiation of the
prosecution under s. 105 had not been obtained before the complaint in respect
thereof had beed filed. The conviction and sentence under s. 409 of the Indian
Penal Code which had been affirmed by the Sessions Judge in both the cases have
now become final. Subsequetly the Insurance Company obtained the sanction of
the Advocate-General of Bombay under s. 107 of the Indian Insurance Act and
filed a complaint in the Court of the Judicial Magistrate, Poona, on January
18, 1955, against the two respondents charging each of them with an offence
under s. 105 of the Indian Insurance Act. The Magistrate took the case on file
and directed the issue of process. Thereupon the two respondents made an
application before the Magistrate on March 22, 1955, praying that the complaint
against them may be dismissed as being barred by s. 403(1) of the Criminal
Procedure Code, by reason of their previous conviction by the Magistrate for
the same offence under the Insurance Act and their acquittal in respect thereof
by the Sessions Judge, pleading in addition that when the conviction by the
Magistrate stood, they had even undergone a portion of the sentence imposed.
The learned Magistrate overruled this plea on the ground that the acquittal of
the respondents was not on the merits of the case, but for lack of sanction
under s. 107 of the Indian Insurance Act which rendered the Magistrate without
jurisdiction to entertain the complaint. The trial was then proceeded with and
evidence was led. But finally the Magistrate acquitted the respondents on the
ground that Art. 20(2) of the Constitution and s. 26 of the General Clauses Act
were a bar to their 111 conviction and punishment. The State of Bombay
thereupon filed an appeal to the High Court under s. 417 of the Criminal
Procedure Code. The appeal was dismissed by the learned Judges who however
granted a certificate on the strength of which this appeal has been preferred.
As the prosecution against the respondents
under s. 105 of the Insurance Act has been held to be barred by reason of the
provisions contained in Art. 20(2) of the Constitution and s. 26 of the General
Clauses Act, it would be convenient to set out these provisions before entering
on a discussion of their content and scope.
Article 20(2) of the Constitution runs:
"No person shall be prosecuted and
punished for the same offence more than once." Section 26 of the General
Clauses Act enacts:
"Where an act or omission constitutes an
offence under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments, but shall not
be liable to be punished twice for the same offence." As the application
of these two provisions is conditioned by the identity of the two offences
which form the subject of the prosecution or prosecutions, we might as well
reproduce the relevant provisions constituting the two offences, viz., s. 409
of the Indian Penal Code and s. 105 of the Indian Insurance Act:
"409. Whoever, being in any manner
entrusted with property, or with any dominion over property in his capacity of
a public servant or in the way of his business as a banker, merchant, factor,
broker, attorney or agent, commits criminal breach of trust in respect of that
property, shall be punished with imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine." Criminal breach of trust referred to in the section is
defined in s. 405 of the Indian Penal Code in these terms:
"405. Whoever, being in any manner
entrusted 112 with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly uses
or disposes of that property in violation of any direction of law prescribing
the mode in which such trust is to be discharged. or of any legal contract,
express or implied, which he has made touching the discharge of such trust, or
wilfully suffers any other person so to do, commits 'criminal breach of
trust'." The offence created by the Indian Insurance Act is as follows:
"105. (1)'Any director, managing agent,
manager or other officer or employee of an insurer who wrongfully obtains
possession of any property of the insurer or having any such property in his
possession wrongfully withholds it or wilfully applies it to purposes other
than those expressed or authorised by this Act shall on the complaint of the
Controller made after giving the insurer not less than fifteen days' notice of
his intention, or, on the complaint of the insurer or any member or any
policy-holder thereof, be punishable with fine which may extend to one thousand
rupees and may be ordered by the Court trying the offence to deliver up or
refund within a time to be fixed by the Court any such property improperly
obtained or wrongfully withheld or wilfully misapplied and in default to Buffer
imprisonment for a period not exceeding two years.
(2)This section shall apply in respect of a
provident society as defined in Part III as it applied in respect of an
insurer." Before addressing ourselves to the arguments urged before as by
the Yearned Counsel for the appellant State it is necessary to set out one
matter merely to put it aside. The entire argument on behalf of the State
before the High Court proceeded on denying that the order of a Criminal Court
passed under s. 105 of the Indian Insurance Act directing the accused to
"deliver up or refund...... any such property improperly withheld or
wilfully misapplied" was a "punishment" within either Art. 20(2)
of the Constitution or 113 s. 26 of the General Clauses Act. The learned
Judges of the High Court rejected this contention. Though learned Counsel for
the appellant originally submitted that he was contesting this conclusion of
the High, Court, he did not address us any argument under that head and we do
not therefore find it necessary to dwell on this point any further, but shall
proceed on the basis that a direction by the Magistrate to replace the moneys
of the insurer with a penalty of imprisonment in default of compliance
therewith was a "punishment" within Art. 20(2) of the Constitution
and s. 26 of the General Clauses Act.
Turning to the main points urged before us,
we may premise the discussion by stating that it was not disputed before us by
learned Counsel for the State, as it was not disputed before the learned Judges
of the High Court, that the allegations to be found in the original complaint
in Criminal Case 82 of 1953 on which the conviction under s. 409 of the Indian
Penal Code was obtained were similar to the allegations to be found in the
complaint under s. 105 of the Indian Insurance Act. It should, however, be
mentioned that there was not any complete identity in the statement of facts
which set out the acts and omissions on the part of the respondents which were
alleged to constitute the two offences-s. 409 of the Indian Penal Code and s.
105 of the Insurance Act. For instance, in the complaint which has given rise
to this appeal, the crucial paragraphs detailing the allegations are 12 and 13
of the complaint which run:
"12. The company submits that the
accused has thus wrongfully obtained possession of Rs.
95,000 or having that property in his
possession wrongfully withheld it or willfully applied it to purposes other
than those expressed or authorised by the Insurance Act, 1938, and committed an
offence on the 9th August, 1952, under Section of the Insurance Act, 1938."
"13. The company through their Solicitors called upon the accused to
explain his conduct within7 15 114 days from the receipt of the letter. The
accused has failed and neglected to reply to the said letters." It is
obvious that on these allegations alone the offence of criminal breach of trust
could not be established as they lack any reference to any entrustment or to
the dishonest intent which are the main ingredients of the offence of criminal
breach of trust. But to this point about the difference in the ingredients of
the two offences we shall revert a little later.
Even assuming that the allegations to be
found in the two complaints were identical, the question, however, remains
whether to attract the ban imposed by either Art. 20(2) of the Constitution or
s. 26 of the General Clauses Act on a second punishment, it is sufficient that
the allegations in the two complaints are substantially the same or whether it
is necessary further that the ingredients which constitute the two offences
should be identical.
We shall first take\ up for consideration
Art. 20(2) of the Constitution whose terms we shall repeat:
"20. (2) No person shall be prosecuted
and punished for the same offence more than once." To operate as a bar the
second prosecution and the consequential punishment there under, must be for
"the same offence". The crucial requirement therefore for attracting
the Article is that the offences are the same, i.e., they should be identical.
If, however, the two offences are distinct, then notwithstanding that the
allegations of facts in the two complaints might be substantially similar, the
benefit of the ban cannot be invoked. It is, therefore, necessary to analyse
and compare not the allegations in the two complaints but the ingredients of
the two offences and see whether their identity is made out. It would be seen
from a comparison of s. 105 of the Insurance Act and a. 405 of Indian Penal
Code (a. 409 of the Indian Penal Code being only an aggravated form of the same
offence) that though some of the necessary ingredients are common they differ
in the following:
(1)Whereas under a. 405 of the Indian Penal
Code the accused must be "entrusted" with property or with
"dominion over that property", under s. 105 of 115 the Insurance Act
the entrustment or dominion over property is unnecessary it is sufficient if
the manager, director, etc. "obtains possession" of the property.
(2)The offence of criminal breach of trust
(s. 405 of the Indian Penal Code) is not committed unless the act of
misappropriation or conversion or "the disposition in violation of the law
or contract", is done with a dishonest intention, but s. 105 of the Insurance
Act postulates no intention and punishes as an offence the mere withholding of
the property-whatever be the intent with which the same is done, and the act of
application of the property of an insurer to purposes other than those
authorised by the Act is similarly without reference to any intent with which
such application or misapplication is made. In these circumstances it does not
seem possible to say that the offence of criminal breach of trust under the Indian
Penal Code is the "same offence" for which the respondents were
prosecuted on the complaint of the company charging them with an offence under
s. 105 of the Insurance Act.
This aspect of the matter based on the two
offences being distinct in their ingredients, content and scope was not
presented to the learned Judges of the High Court, possibly because the
decisions of this Court construing and explaining the scope of Art. 20(2) were
rendered later. In Om Prakash Gupta v. State of U.P. (1) the accused, a clerk
of a municipality had been convicted of an offence under s. 409 of the Indian
Penal Code for having misappropriated sums of money received by him in his
capacity as a servant of the local authority and the conviction had been
affirmed on appeal, by the Sessions Judge and in revision by the High Court.
The plea raised by the accused before this Court, in which the matter was
brought by an appeal with special leave, was that s. 409 of the Indian Penal
Code had been repealed by implication by the enactment of sub-ss. (1) (c) and
(2) of s. 5 of the Prevention of Corruption Act because the latter dealt with
an offence of substantially the same type. This Court repelled that contention.
It (1)  S.C.R. 423.
116 analysed the ingredients of the two
offences and after pointing out the difference in the crucial elements which
constituted the offences under the two provisions, held that there was no
repeal of s. 409 of the 'Indian Penal Code implied by the constitution of a new
offence under the terms of the Prevention of Corruption Act. It was the
application of this decision and the ratio underlying it in the context of Art.
20(2) ,of the Constitution that is of relevance to the present appeal. The
occasion for this arose in State of Madhya Pradesh v. Veereshwar Rao Agnihotry
(1). The respondent was a tax-collector under a municipality and was prosecuted
for offences among others under s. 409 of the Indian Penal Code and s 5(2) of
the Prevention of Corruption Act for misappropriation of sums 'entrusted to him
as such tax-collector. By virtue of the provision contained in s. 7 of the
Criminal Law Amendment Act, XLVI of 1952, the case was transferred to a Special
Judge who was appointed by the State Government after the prosecution was
commenced before a Magistrate. The Special Judge found the accused guilty of
the offence under s. 409 of the Indian Penal Code and convicted him to three
years' rigorous imprisonment but as regards the charge under S. 5(2) of the
Prevention of Corruption Act, he acquitted the accused on the ground of certain
procedural non-compliance with the rules as to investigation prescribed by the
latter enactment. The respondent appealed to the High Court against this
conviction and sentence under s. 409 of the Indian Penal Code and there urged
that by reason of his acquittal in respect of the offence under s. 5(2) of the
Prevention of Corruption Act, his conviction under s. 409 of the Indian, Penal
Code could not also be maintained, the same being barred by Art. 20(2) of the
Constitution. The High Court of Madhya Bharat accepted this argument and
allowed the appeal and the State challenged the correctness of this decision by
an appeal to this Court. Allowing the appeal of the State, Govinda Menon, J.,
delivering the judgment of the Court observed:
(1) S.C.R. 868:
117 "This Court has recently held in Om
Prakash Gupta v. The State of U.P. that the offence of criminal misconduct
punishable under s. 5(2) of the Prevention of Corruption Act, 11 of 1947, is
not identical in essence, import and content with an offence under s. 409 of
the Indian Penal Code In view of the above pronouncement, the view taken by the
learned Judge of the, High Court that the two offences are one and the same, is
wrong, and if that is so, there can be no objection to a trial and conviction
under s. 409 of the Indian Penal Code, even if the respondent has been
acquitted of an offence under s. 5(2) of the Prevention of Corruption Act, II
of 1947 The High Court also relied on Art. 20 of the Constitution for the order
of acquittal but that Article cannot apply because the respondent was not
prosecuted after he had already been tried and acquitted for the same offence
in an earlier trial and, therefore, the well-known maxim "Nemo debet bis
vexari, si constat curiae quod sit pro una et eadem causa" (No man shall
be twice punished, if it appears to the court that it is for one and the same cause)
embodied in Art. 20 cannot apply" Before leaving this part of the case we
might also point out that a similar view of the scope of the rule as to
double-jeopardy has always been taken by the Courts in America. The words of
the Vth Amendment where this rule is to be found in the American Constitution
"Nor shall any person be subject, for
the same offence, to be twice put in jeopardy of life or limb." and it
will be noticed that there as well, the ban is confined to a second prosecution
and punishment for the same offence. Willoughby after referring to the words
quoted in the Fifth Amendment says:
"Cases may occur in which the same act
ma y render the actor guilty of two distinct offences; In such cases the
accused cannot plead the trial and acquittal, or the conviction and punishment
for one offence in bar to a conviction for the other"(1). In Albrecht v.
(1)Constitution of the United States, Vol.II.p.
1158., 118 United States (1) Brandeis, J., speaking for a unanimous Court said:
"There is a claim of violation of the
Vth Amendment by the imposition of double punishment. This contention rests
upon the following facts. Of the nine, counts in the information four charged
illegal possession of liquor, four illegal sale and one maintaining a common
nuisance. The contention is that there was double punishment because the liquor
which the defendants were convicted for having sold is the same that they were
convicted for having possessed. But possessing and selling are distinct
offences. One may obviously possess without selling; and one may sell and cause
to be delivered a thing of which he has never had possession; or one may have
possession and later sell, as appears to have been done in this case. The fact
that the person sells the liquor which he possessed does not render the
possession and the sale necessarily a single offence. There is nothing in the
Constitution which prevents Congress from punishing separately each step
leading to the consummation of a transaction which it has power to prohibit and
punishing also the completed transaction." If, therefore, the offences
were distinct there is no question of the rule as to double-jeopardy as
embodied in Art. 20(2) of the Constitution being applicable.
The next point to be considered is as regards
the scope of s. 26 of the General Clauses Act. Though s. 26 in its opening
words refers to "the act or omission constituting an offence under two or
more enactments", the emphasis is not on the facts alleged in the two
complaints but rather on the ingredients which constitute the two offences with
which a person is charged. This is made clear by the concluding portion of the
section which refers to "shall not be liable to be punished twice for the
same offence,". If the offences are not the same but are distinct, the ban
imposed by this provision also cannot be invoked. It therefore follows that in
the present case as the respondents are not being sought to be punished for
"the (1) (1927) 273 TT.S. I: 71 Law. Ed. 505.
119 same offence" twice but for two
distinct offences constituted or made up of different ingredients the bar of
the provision is inapplicable.
In passing, it may be pointed out that the
construction we have placed on Art. 20(2) of the Constitution and s. 26 of the General
Clauses Act is precisely in line with the terms of s. 403(2) of the Criminal
Procedure Code which runs:
"403. (2) A person acquitted or
convicted of any offence may be afterwards tried for any distinct offence for
which a separate charge might have been made against him on the former trial
under section 235, sub-section (1)." It would be noticed that it is
because of this provision that the respondents before us were originally
charged before the Magistrate in Criminal Case 82 of 1953 with offences under
s. 409 of the Indian Penal Code as well as s. 105 of the Indian Insurance Act.
The respondents in this case did not appear
in this Court and as the appeal had to be heard ex parte Mr. N. S. Bindra was
requested to appear as amicus curiae to assist the Court at the hearing of the
appeal. We express our thanks to him for the assistance he rendered.
The appeal is accordingly allowed and the
judgment and the order of the High Court is set aside and the case will go back
to the Judicial Magistrate, Fourth Court, Poona, for being proceeded with
according to law.