Kunjilal & ANR Vs. The State Of
Madhya Pradesh  INSC 85 (8 October 1954)
HASAN, GHULAM DAS, SUDHI RANJAN BHAGWATI,
CITATION: 1955 AIR 280 1955 SCR (1) 872
Criminal Procedure Code (Act V of 1898), s.
403 (1) and (2)- Appellants convicted for offences under ss. 392 and 332 I.P.C.
while exporting contraband goods-Previous acquittal for prosecution under s. 7
of the Essential Supplies (Temporary Powers) Act, 1946 -Whether a bar to the
subsequent trial for offences under ss. 392 and 332 I.P.C.
The appellants were tried and convicted for
offences under ss. 392 and 332 of the Indian Penal Code committed when they
were exporting certain essential supplies, the export of which was prohibited
and constituted an offence under s. 7 of the Essential Supplies (Temporary
Powers) Act, 1946. It was contended that the appellants were already prosecuted
for an offence under s. 70 the Essential Supplies (Temporary Powers) Act,
1.946, and though convicted by the Magistrate, were acquitted by the Additional
Sessions Judge, Sagar, and on the basis of that judgment which was not brought
to the notice of the High Court the appellants who and once been tried for the
same offence and acquitted could not be tried again under the provisions of
s.403(1),of the Code of Criminal Procedure for the same offence nor on the same
facts for any other offence for which a different charge from the one made
against them might have been made under s.
236 of the Code of Criminal Procedure or for
what they might have been convicted under s. 237 of the' Code of Criminal
Held, that neither s. 236 nor s. 237 was
applicable and that sub-section (2) of s. 403 of the Code of Criminal Procedure
was a; complete answer to the contention because the appall ants were not tried
for the same offence as contemplated under s. 403(1) but for a distinct offence
as contemplated by sub-section (2).
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 73 of 1953.
Appeal by Special Leave granted by the
Supreme Court by its Order dated the 30th January, 1953, from the Judgment and
Order dated the 12th November, 1952, of the High Court of Judicature at Nagpur
in Criminal Revision No. 399 of 1951 arising out of the Judgment and Order-
dated the 26th March, 1951, of the Court of the Magistrate at Sagar in Criminal
Case No. 44 of 1950.
Y. Kumar for the appellant.
B. Sen and I. N. Shroff for. the respondent.
1954. October 8. The Judgment of the Court
was delivered by GHULAM HASAN J.-This appeal under article 136 of the
Constitution is filed against an order of the High Court of Judicature at
Nagpur, passed in revision under the following circumstances.
The two appellants, Kunjilal and. Deopal, who
are father and son, the latter being aged 17, were prosecuted under section 392
and section 332, Indian Penal Code, in the Court of the Magistrate, Sagar. They
were sentenced under the former to 1 year's rigorous imprisonment and under the
latter to a fine of Rs. 500 each. Their convictions were upheld on appeal but
Kunjilal's sentence was reduced to six months R.I. and Rs. 350 fine, while
Deopal was bound over under section 562 of the Code of Criminal Procedure and
the sentence of imprisonment was set aside. His fine was reduced under section
332, Indian Penal Code, to Rs. 250.
They carried the matter further in revision
to the High Court but it was dismissed.
It appears that the export of certain
essential supplies such as rice and ghee was prohibited from Madhya Pradesh to
another State and any person contravening the prohibition was guilty of an
offence under section 7 of the Essential Supplies (Temporary Powers) Act, 1946.
Three bullock carts belonging to the appellants and carrying bags of rice and
tins of ghee were crossing the river Dhasan on the Madhya Pradesh and Uttar
Pradesh border on 1st March, 1949. Head Constable 874 Abdul Samad on recieving
information reached the spot, seized the prohibited goods and brought the carts
back to Shahgarh in Madhya Pradesh. When they reached the jungle near Shahgarh
the two appellants are alleged to have beaten the Read Constable and taken away
the property seized to the house of Paltu Bania at Bagrohi. They were
accordingly charged under sections 332 and 392, Indian Penal Code, for
voluntarily causing hurt to a public servant in the discharge of his duty as
such public servant and also for robbing him of the goods seized by him. The
appellants denied the offence. They pleaded that the goods were not being
exported to Uttar Pradesh but to a place called Baraitha and that they did not
beat the Head Constable. The Magistrate who tried the appellants found that
both the offences were proved against the appellants. He accepted the
prosecution evidence both on the point of beating as well as on the point of
exporting the contraband goods. The medical evidence supported the prosecution
case. The appellants were accordingly convicted and sentenced as stated above.
The learned Additional Sessions Judge, Sagar,
agreeing with the findings of the Magistrate
further found that the story that the carts were being taken to Baraitha which
is in Madhya Pradesh was false as the route to Baraitha did not pass through
the Dhasan river but lay in quite a different direction. He, however, held that
the carts were caught at the other bank of the river Dhasan after they had
crossed the Madhya Pradesh border but the seizure was nevertheless legal. This
finding was sought to be made capital of in revision and it was contended that
the seizure took place beyond the border of the State of Madhya Pradesh and was
therefore illegal. Upon the question whether the carts were within the limits
of Madhya Pradesh State when they were actually apprehended there was evidence
which was accepted that the carts were seized when they were in the mid-stream
and the cart-men requested the Head Constable to let them take the carts on the
other side of the river so that they may have their meals. This was allowed and
after they had finished their meals, the carts were brought back. Upon 875 this
evidence it was held that the carts were captured before they had crossed the
Uttar Pradesh border and the seizure was in the circumstances legal and proper.
The convictions were maintained but the sentences were reduced as already
In a Special Leave to Appeal under article
136, it is not open to the appellants to re-agitate questions of fact and ask
the Court to disturb the findings of fact arrived at by the Courts below. Those
findings must therefore be accepted as binding. It was urged that there was absence
of mens rea which it is necessary to establish under section 392. It is
contended that the appellants honestly believed that they were taking the goods
to a place within the State of Madhya Pradesh when they were caught in the
mid-stream. This conclusion is, however, clearly negatived by the finding that
the route which the appellants had chosen was not the route which led to
Baraitha or any other place within Madhya Pradesh State but actually led to
It was also contended that the appellants
were already prosecuted for an offence under section 7 of the Essential
Supplies (Temporary Powers) Act, 1946, for exporting the contraband goods and
although they were convicted by the Magistrate they were acquitted on appeal by
the Additional Sessions Judge, Sagar, on October 31, 1952. It is argued upon
the strength of this judgment which was admittedly not brought to the notice of
the High Court that under section 403(1) of the Code of Criminal Procedure, the
appellants who had once been tried for the offence and acquitted could not 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 them might have been
made under section 236 or for which they might have been convicted under
section 237. Neither section 236 which deals with a case where there is a doubt
as to which offence has been committed nor section 237 which entitles the Court
to convict a person of an offence which he is shown to have committed although
he was not charged with it, applies. Sub-section (2) of section 403 in our
opinion furnishes a complete answer 876 to the contention raised on behalf of
the appellants. That sub-section reads:
" 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, subsection (1)." The appellants were not tried again
for the same offence as contemplated under section 403(1) but for a distinct
offence as contemplated by sub-section (2). It is true that in order to sustain
the charge under sections 332 and 392, Indian Penal Code, the Court had to.
consider whether the seizure was legal and was made by a public servant in the
discharge of his duty but once that was found against the appellants -the
further question to be determined was as to whether they committed the offence
of robbing the Head Constable of the goods lawfully seized and whether they
voluntarily caused hurt to him while he was acting in the discharge of his
duties as a public servant. Upon both these points the finding of the Courts
below is concurrent.
We hold that there is no substance in this
contention. We accordingly dismiss the appeal.