The State of Madhya Pradesh Vs.
Veereshwar Rao Agnihotry  INSC 30 (5 April 1957)
MENON, P. GOVINDA DAS, SUDHI RANJAN (CJ)
IMAM, SYED JAFFER DAS, S.K.
CITATION: 1957 AIR 592 1957 SCR 868
Autrefois acquit--Trial for offences under s.
409 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption
Act--Acquittal of charge, under s. 5(2)--Whether conviction under s. 409
barred--Code of Criminal Procedure s. 403--Constitution of India Art. 20(2)--General
Clauses Act s. 26.
The accused was tried by a Special Judge for
offences under s. 409 Of the Indian Penal Code and S. 5(2) of the Prevention of
Corruption Act. He was convicted under S. 409 but the judge held that the
accused could not be tried under s. 5(2) as there had been no investigation by
a police officer not below the rank of a Deputy Superintendent of Police. Upon
appeal by the accused against the conviction under s. 409, the High Court
applying the doctrine of autrefois acquit held that the order of the judge in
respect of the charge under s. 5(2) was tantamount to an acquittal for that
offence and on the same facts no conviction could be had under S. 409 :
Held, that the offences under S. 409 of the
Indian Penal Code and under S. 5(2) of the Prevention of Corruption Act were
distinct and separate and there could be no objection to a trial and conviction
under s. 469 even if the accused had been acquitted under S. 5(2).
Om Prakash Gupta v. The State Of U.P., 
S.C.R. 423, applied.
Section 403(1) of the Code of Criminal
Procedure has no application where there is only one trial for several
offences, of some of which the accused person is acquitted though convicted of
one. Article 20 of the Constitution also does not apply where the accused had
not already been, tried: and acquitted for the same offence in an earlier
trial, 869 Where there are two alternate charges in the same trial, the fact
that the accused is acquitted of one of them will not prevent the conviction on
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 130 and 131 of 1954.
Appeals by special leave from the judgment
and order dated September 11, 1953, of the former Madhya Bharat High Court in
Appeals Nos. 42 and 43 of 1953.
Shiv Dayal and R. H. Dhebar, for the
B. C. Misra, amicus curiae, for the
1957. April 5. The Judgment of the Court was
delivered by GOVINDA MENON J.-The State of Madhya Bharat, G which after
November 1, 1956, had become merged in the present State of Madhya Pradesh, had
obtained special leave from this court on April 11, 1954, to appeal against the
judgment and order of acquittal passed in favour of the respondent herein, by
the High Court of Judicature of Madhya Bharat on September 11, 1953, in two
consolidated Criminal Appeals Nos. 42 and 43 of 1953, by the identical
appellant before that court.
The question for decision in these two
appeals is how far the High Court was justified in ordering the acquittal.
The respondent herein was a Tax-Collector in
the Municipal Committee of Lashkar, Gwalior, and was prosecuted in the court of
the City Magistrate and Additional District Magistrate, Lashkar, firstly by
means of a challan dated October 23, 1951, for offences under ss. 468, 477-A
and 409 of the Indian Penal Code and s. 5 (2) of the Prevention of Corruption
Act II of 1947, in that he misappropriated a sum of more than Rs. 7,000,
entrusted to him in the capacity of Tax Collector, and during the course of the
said transaction committed various offences. On July 4, 1952, a second
complaint was filed against him in the same court under the identical sections
for having misappropriated in 1950 a sum of Rs. 3,500 in all under similar
circumstances. While these two complaints were pending in the trial court, on
July 28, 1952, the Criminal 112 870 Law Amendment Act (Act No. 46 of 1952) came
into force and by s. 6 of that statute, the State Government was authorised to
appoint a Special Judge for the trial of an offence under sub-s. (2) of s. 5 of
the Prevention of Corruption Act 11 of 1947. Section 7 of the same statute laid
down that notwithstanding any. thing contained in the Criminal Procedure Code,
or any other law for the time being in force, an offence under s. 5 (2) of the
Prevention of Corruption Act could be tried only by a Special Judge, appointed
under s. 6 of the Criminal Law Amendment Act. Sub-cl. (b) of s. 7 laid down
that when trying a case, triable exclusively by a Special Judge under this
statute, he may also try any other offence with which the accused may under the
Code of Criminal Procedure, be charged at the same trial. The last section of
the Criminal Law Amendment Act aforesaid provided that all cases triable by a
Special Judge under s. 7, which immediately :before the commencement of the Act
were pending before any Magistrate, shall on such commencement be forwarded for
trial to the Special Judge having jurisdiction over such cases. In accordance
with the above-mentioned provisions of the statute, the cases pending before
the City Magistrate and Additional District Magistrate, Lashkar, were
transferred to a Special Judge constituted for the purpose before whom they
were numbered as Case No. 3 of 1953 and No. 6 of 1953. After the prosecution
evidence was over, on March 10, 1953, the Special Judge framed charges under
all the sections complained against. By separate judgments dated June 5, 1953,
the Special Judge found the respondent guilty of an offence under s. 409 of the
Indian Penal Code and sentenced him to rigorous imprisonment for three years.
He, however, passed an order of acquittal under ss. 468 and 477-A, of the
Indian Penal Code. As regards the charge under s. 5 (2) of Act II of 1947, the
learned Special Judge was of the view that since the provisions of sub.s. (4)
of s. 5 of the Prevention of Corruption Act to the effect that no police
officer below the rank of Deputy Superintendent of Police shall investigate any
offence punishable under sub-s. (2) 871 of s. 5 of the Prevention of Corruption
Act without an order of a 1st Class Magistrate, had not been complied with, the
foundation for preferring a complaint had not been established and, therefore,
there was an illegality which affected the jurisdiction of the court to try the
case, the result being that the accused could not be tried for that offence.
Such being the case, no formal order of acquittal was passed by the trial
Aggrieved by the convictions under s. 409 of
the Indian Penal Code, the respondent preferred two appeals to the High Court
of Madhya Bharat which were consolidated by that court, and by a common
judgment that court applying the doctrine of autrefois acquit held that when
once on the same facts the trial Judge found that the respondent could not be
found guilty of an offence under s. 5 (2) of the Prevention of Corruption Act,
it was tantamount to an acquittal for that offence in which case no conviction
could be had under s. 409 of the Indian Penal Code. The respondent was,
therefore, acquitted. As mentioned already, the State has been granted special
leave to appeal against the orders of acquittal.
The correctness of the conclusion of the High
Court has been challenged in more ways than one by the appellant's counsel.
Firstly, it is argued that the offence under s. 5 (2) of the Prevention of
Corruption Act and that under s. 409 of the Indian Penal Code, are not the
same, and such being the case, granting that the order of the Special Judge
amounted to an acquittal under s. 5 (2) of the Prevention of Corruption Act,
still that would not bar the conviction of the respondent under s. 409 of the
Indian Penal Code.
Secondly, it is pointed out that when at the
same trial there are two alternative charges like those with which we are now
concerned, acquittal of the accused under one charge is no impediment to his conviction
on the other; and lastly it is contended that any defect in the investigation
would not amount to an illegality which would invalidate the trial and
conviction if the proceedings culminate that way.
872 This court has recently held in Om Prakash
Gupta v. The State of U. P.(1), that the offence of criminal misconduct
punishable under s. 5 (2) of the Prevention of Corruption Act II of 1947 is not
identical in essence, import and content with an offence under s. 409 of the
Indian Penal Code. The offence of criminal misconduct is a new offence created
by that enactment and it does not repeal by implication or abrogate s. 409 of
the Indian Penal Code. In the common judgment in those appeals the conclusion
has been expressed in the following words:- "Our conclusion, therefore, is
that the offence created under s. 5(1)(c) of the Prevention of Corruption Act
is distinct and separate from the one under S. 405 I.P.C. and, therefore, there
can be no question of s.5(1)(c) repealing s. 405 I.P.C." 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 a. 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. Section 403(1) of the Criminal
Procedure Code only prohibits a subsequent trial for the same offence, or on
the same facts for any other offence for which a different charge from the one
made against an accused person might have been made under s. 236 of the
Criminal Procedure Code, or for which he might have been convicted under s. 237
when the earlier conviction or acquittal for such an offence remains in force.
It is obvious that s. 403(1) has no application to the facts of the present
case, where there was only one trial for several offences, of some of which the
accused person was acquitted while being convicted of one. On this ground alone
the order of the High Court is liable to be set aside. 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 (1)  S.C.R.423.
873 well-known maxim " Nemo debet bis
vexari, si constatcurice 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.
The next argument on behalf of the appellant
is that where there are two alternate charges in the same trial, the fact that
the accused is acquitted of one of them, will not prevent the conviction on the
other, is also well-founded.
Section 26 of the General Clauses Act can be
called in aid in support of this proposition. There is no question of double
jeopardy. Section 26 runs as follows:
"Provisions as to offences punishable
under two or more enactments: 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." We are, therefore, of the opinion that
the learned Judge's view on this aspect of the case is also unsound.
In view of what has been stated above, it is
unnecessary to deal with the last contention of the learned counsel for the
appellant except merely to state that the Special Judge had jurisdiction to try
the accused person under s. 7 of the Prevention of Corruption Act, 1947.
The result is that the appeals succeed, the
order of the High Court acquitting the respondent of an offence under s. 409 of
the Indian Penal Code is set aside and the appeals are remanded to the High
Court of Madhya Pradesh for re- hearing on the merits.