Bihar Vs. Murad Ali Khan & Ors 
INSC 316 (10 October
M.N. (J) Venkatachalliah, M.N. (J) Misra Rangnath
1989 AIR 1 1988 SCR Supl. (3) 455 1988 SCC (4) 655 JT 1988 (4) 124 1988 SCALE
INFO : R 1992 SC 514 (7) RF 1992 SC 604 (105) D 1992 SC1379 (6)
Life Protection Act, 1972, ss. 9(1), 51, 55 and 56- -Cognizance of the offence
against the accused by the Magistrate--Permissibility of--Pendency of police
investigation for the same offence against the same act-- Effect of--Whether s.
210(1) Cr. P. C. applicable.
of Criminal Procedure, 1973, s. 482--Scope of-power of the High Court to go
into the question whether the offence could be established by evidence or
and Phrases--The same offence'--Substantially the same offence'--'In effect the
same offence'--Practically the same offence'-- Meaning of.
Range Officer, Forest of the appellant-State lodged
complaints with the .judicial Magistrate Ist Class against the
respondents-accused alleging that they had committed offences under section 51
of the Wild Life Protection Act, 1972. The learned Magistrate took cognizance
of the offence and ordered issue of process to the respondents-accused.
before lodging the aforesaid complaints, a case had also been registered
against the respondents-accused with the concerned police station under
sections 447, 429 and 379, IPC read with sections 54 and 39 of the Wild life
Protection Act. 1972 and the matter was under investigation by the police.
respondents-accused moved the High Court under section 482 of the Code of
Criminal Procedure for quashing the aforesaid order of the Magistrate. The High
Court quashed the proceedings against the respondents-accused on the ground:
(a) that the Magistrate acted with-out jurisdiction in taking cognizance of the
offence and ordering issue of process against the accused, since it was a case
to which section 210(1) of the Code of Criminal Procedure 1973 attracted and that
as an investigation by the police was in progress in relation to the same
offence the Magistrate would be required to stay the proceedings on the
complaint and call for a report in the matter from the Police; and (b) that on
the face of the complaint, it PG NO 455 PG NO 456 could not be said that the
complaint spelts out the ingredients of the offence alleged. Hence these
appeals by special leave by the appellant-State.
the appeals to this Court
(1) The orders of the High Court in Crl. Misc. 223 of 1987 dated 13.2.1987 and
the two orders in Crl. Misc. No. 25X of 1987(R) and Crl. Misc. No. 259 1987(R)
dated 18.2.1987 are set aside and the order dated 1.7.1986 of the learned
Magistrate taking cognizance of the offence and ordering issue of summons to
the respondents is restored.
criminal case initiated on the complaint will now be proceeded with , in
accordance with law. [470H; 471A-B] 2(1) A perusal of sections 2(16), 2(36),
9(1), 51 and 55 of the Wild Life Protection Act, 1972 shows that cognizance of
an offence against the "Act" can be taken by a Court only on the
complaint of the officer mentioned in section 55.
if the jurisdictional police purported to register a case for an alleged
offence against the Act, sec. 210(1) Cr. P.C. would not be attracted having
regard to the position that cognizance of such an offence can only be taken on
the complaint of the Officer mentioned in that section. [462H; 463A-B] 2(ii)
Where a Magistrate takes cognizance of an offence instituted otherwise than on
a police-report and an investigation by the police is in progress in relation
to same offence, the two cases do not lose their separate identity. The section
seeks to obviate the anomalies that might arise from taking cognizance of the
same offence more than once. But, where, as in the instant case. cognizance can
be taken only in one way and that on the complaint of a particular statutory
functionary. there is no scope or occasion for taking cognizance more than once
and accordingly, section 210 Cr.P.C. has no role to play.
3(i) Jurisdiction under section 482 Cr.P.C. . which saves the inherent power of
the High Court, to make such orders as may he necessary to prevent abuse of the
process of any court or otherwise to secure the ends of justice, has to be
exercised sparingly and with circumspection. In exercising that jurisdiction,
the High Court would not embark upon an enquiry whether the allegations in the
complaint are like to be established by evidence or not.
is the function of the Trial Magistrate when the evidence comes before him.
[463E-F] 3(ii) When the High Court is called upon to exercise jurisdiction
under Section 482 Cr.P.C. to quash a proceeding PG NO 457 at the stage of the
Magistrate taking cognizance of an offence, the High Court is guided by the
allegations, whether those allegations, out in the complaint or the
charge-sheet, do not in law constitute or spell-out any offence and that resort
to criminal proceedings would, in the circumstances, amount to an abuse of the
Process of the court or not. [463G-H] In the instant case, it is difficult to
agree with the High Court that the allegation in the complaint, taken on their
face value, would not amount in law to any offence against the Wild Life
Protection Act, 1972. [465G] Municipal Corporation of Delhi v. R.K. Rohtagi,  1 S.C.R.
884 at 890 and Municipal Corporation of Delhi v. P.D. Jhunjunwala,  1 SCR 895 at 897 followed.
The ingredients of an offence under sec. g(l) read with sec. 50(1) of the Act
require for its establishment certain ingredients which are not part of the
offence under sec. 429 I.P.C. and vice-versa. [470G] 4(ii) The expression
"any act or omission which constitutes any offence under this Act" in
section 56 of the Act, merely imports the idea that the same act or omission
might constitute an offence under another law and could be tried under such
other law or laws also. [466H; 467A] 4(iii) The proviso to section 56 has also
a familiar ring and is a facet of the fundamental and salutory principles that
permeate penalogy and reflected in analogous provisions of sec. 26 of General
Clauses Act, 1897; Section 71 IPC; Section 100 of the Cr.P.C. 1973, and
constitutionally guaranteed under Art. 20(2) of the Constitution. [467A-B]
expression "the same offence", "substantially the same
offences", "in effect the same offence", or "practically
the same", have not done much to lessen the difficulty in applying the
tests to identify the legal common denominators of "same offence".
The same set of facts, in conceivable cases, can constitute offences under two
different laws. An act or an omission can amount to and constitute an offence
under the IPC and at the same time constitute an offence under any other law.
[468B-C; 470A-B] Leo Roy Frey v. The Superintendent, District Jail, Amritsar,  SCR 822; State of Madhya Pradesh v. Veereshwar Rao Agnihotry, 
SCR 868; Omprakash Gupta v. PG NO 458 Slate of U. P.,  SCR 423; The State
of Bombay v. S. L. Apte & Anr.,  3
SCR 107; "Double Jeoparady" the Encyclopedia of Crime and Justice,
vol. 2, (p. 630) 1983 Edn. by Sanford H. Kudish
v. The Free Press, Collier Mac Millan Publishers. London and Friedland in "Double Jeoparady"
(Oxford 1969) referred to.
The policy and object of the Wild life laws have a long history and are the
result of an increasing awareness of the compelling need to restore the serious
ecological- imbalance introduced by the depradations inflicted on nature by
man. [460E-F] 6(ii) The State to which the ecological-imbalances and the
consequent environmental damage have reached is so alarming that unless
immediate, determined and effective steps were taken, the damage might become
6(iii) The largest single factor in the depletion of the wealth of animal life
in nature has been the 'civilized man" operating directly through
excessive commercial hunting or, more disastrously, indirectly through invading
or destroying natural habitats. [462B-C]
APPELLATE JURISDICTION: Criminal Appeal Nos. 551-553 of 1988 From the Judgment
and Order dated 18.2.1987/13.2.1987 of the Patna High Court in Crl. Misc. No.
258, 259 and 2231 of 1987 (R).
for the Appellant.
Y.S. Chitale, Kapil Sibal. K.M. Lahari, R.F. Nariman K.K. Lahiri, Raian Karanjawala
Mrs. Manik Karanjawala and Miss Meenakshi for the Respondents.
Judgment of the Court was delivered by VENKATACHALIAH, J. SLP 1879 of 1987 is
by the State of Bihar for special leave under Art. 136 of
the Constitution to appeal from the order dated 13.2.1987 of the High Court of Patna
in Crl. Misc. 223 of 1987 quashing, in exercise of powers under s. 482 of code
of Crl. Procedure 1973, the order dated 1.7.1986 of the Judicial Magistrate Chaibasa,
,taking cognizance of an offence under Section 9(1) read with sec. 51 of the
Wild Life Protection Act. 1972 against respondent-Vikram Singh.
459 Special Leave Petition Nos. 1877 of 1987 and 1878 of 1987 arise out of the
subsequent two similar orders both dated 18.2.1987 in Criminal Misc . No . 258/
1987(R) and 259/ 1987(R) of the High Court quashing the same common order of
the said Magistrate dated 1.7.1986 against two other accused, namely, Murad Ali
Khan and faruq Salauddin who are respondents in these two Special Leave
Special leave was granted and the three appeals were taken up for final
hearing, heard and disposed of by this common-judgment. We have heard Shri M.P.
Jha, learned counsel for the State of Bihar and Dr. Chitaley and Shri Nariman
for the respondents.
accusation against the three respondents is that on 8.6.1986 at 2.0() P.M. they
along with two others named in the complaint, shot and killed an elephant in
compartment No. 13 of Kundurugutu Range Forest and removed the ivory tusks of
the elephant. On 25.6.1986 the Range Officer of Forest of that Range lodged a
written complaint with the Judicial Magistrate, Ist Class Chaibasa, in this
behalf alleging offences against respondents under Section 51 of the Wild Life
Protection Act, 1972. The learned Magistrate took cognisance of this offence
and ordered issue of process to the accused.
would appear that at the Police Station. Souna, a case had been registered
under sections 447, 429 and 379 IPC read with sec 54 and 39 of the Wild Life
Protection Act, 1972 and that the matter was under investigation by the police.
The respondents, WhO Were amongst the accused, moved the High Court under Sec.
482 Cr.P.C. or quashing of the order of the Magistrate taking cognizance he
alleged offence and issuing summons. The High Court was persuaded to the view
that this was a case to which section 210(1) of Code of Criminal Procedure,
1973 was attracted and that as an investigation by the Police was in progress
in relation to the same offence the learned Magistrate would be required to
stay the proceedings on the complaint and call for a report in the matter from
the police; and that the learned Magistrate acted without jurisdiction in
taking cognizance of the offence and ordering issue of process against the
accused. The High Court, accordingly, quashed the proceedings against the
the orders under appeal it would appear that two grounds commended themselves
for acceptance to the High Court. The first was that the learned Magistrate
acted contrary to the provisions of sec.
High Court observed:
investigation is still continuing and pending in so far as the petitioner is
concerned and the investigation shall continue. Obviously the Judicial
Magistrate acted beyond jurisdiction in taking cognizance against the
petitioner when for the same allegation the investigation was proceeding and
pending. He acted contrary to the provisions of Section 210 of the Code of
Criminal Procedure. The complaint was filed after long delay . " The
Second ground was on the merits of the complaint.
High Court, inter alia, observed:
the face of the complaint petition of the first information report itself the
facts alleged do not constitute the offence. The petitioner was never named in
the first information report. There is no eye witness in this case and there is
no identification of the petitioner in any manner whatsoever to sustain the
allegation even prima facie for the offence alleged."
a careful consideration of the matter, we are afraid, the approach of and the
conclusion reached by the High court is unsupportable In regard to the first
ground, presumably, certain provisions of the "Act" in regard to cognizability
and investigation of offences against the act, relevant to the matter, had not
placed before the High Court. The policy and object of the Wild life laws have
a long history and are the result of an increasing awareness of the compelling
need to restore the serious ecological-imbalances introduced by the depradations
inflicted on nature by man. The State to which the ecological-imbalances and
the consequent environmental damage have reached is so alarming that unless
immediate, determined and effective steps were taken the damage might become
irreversible. The preservation of the fauna and flora, some species of which
are getting extinct at an alarming rate has been a great and urgent necessity
for the survival of humanity and these laws reflect a last-ditch battle for the
restoration, in part at least, a grave situation emerging from a long history
of callous insensitiveness to the enormity of the risks m mankind that go with
the deterioration of environment. The tragedy of the predicament of the civilised
man is that "Every source from which man has Increased his power on earth
has been used to diminish the prospects of his successors. All his progress is
being made at the expense of PG NO 461 damage to the environment which he can
not repair and cannot foresee". In his foreward to 'International Wild
Life Law', H.R.H Prince Philip, The Duke of Edinburgh said:
people seem to think that the conservation of nature is simply a matter of
being kind to animals and enjoying walks in the countryside. Sadly, perhaps, it
is a great deal more complicated than that ..." "....As usual with
all legal systems, the crucial requirement is for the terms of the conventions
to be widely accepted and rapidly implemented. Regretfully progress in this
direction is proving disastrously slow [See International Wild life Law by
Simon Lyster,Cambridge--Grotuis Publications Limited, 1985 Ed.] There have been
a series of international1al convention for the preservation and protection of
the environment 'The United Nations General Assembly adopted on 29 10.1982
"The World charter for nature". The charter declares the
"Aware" ness that.
Mankind is a part of nature and life depends On the uninterrupted functioning
of natural systems which ensure the supply of energy and nutrients.
Civilization is rooted in nature. which has shaped human culture and influenced
all artistic and scientific achievement ment. and living in harmony with nature
gives man the best opportunities for the development of his creativity, and for
rest and recreation.
third century B.C. King Asoka issued a decree that has a particularly
contemporary ring' in the matter of preservation1 of wild life and environment.
Towards the end of his reign. he wrote:
six years after my coronation I declared that the following animals were not to
be killed: parrots mynas, the aruna, ruddy geese, Wild geese the nandimukha
queen ants. terrapins, boneless fish.
462 rhinoceroses....and all quadrupeds which are not useful or edible .....Forests
must not be burned." Environmentalists' conception of the ecological
balance in nature is based on the fundamental concept that nature is "a
series of complex biotic communities of which a man is an inter-dependant
part" and that it should not be given to a part to tresspass and diminish
the whole. The largest single factor in the depletion of the wealth of animal
life in nature has been the civilized man" operating directly through. excessive
commercial hunting or. more disastrously. indirectly through invading or
destroying natural habitats.
might now turn to certain provisions of the Act.
9(1) of the Act says that no person shall "hunt" any wild animal
Specified in Schedule T. Elephant is included in schedule I. The expression
wild animal" is defined in see. 2 (36) to mean any 'animal found wild in
nature and includes any animal specified in schedule 1" etc.
expression "hunting" is defined in see. 2 (16) in a comprehensive
'hunting' with its grammatical variations and cognate expressions, includes.
killing. poisoning. snaring and trapping of any wild animal and every. attempt
to do so (b) driving any wild animal for any of the purposes specified in
or destroying or taking any part of the body of any such animal or. in the case
of wild brids or reptiles, damaging the eggs of such birds or reptiles or,
disturbing the eggs or nests of such birds or reptiles:
51 of the Act provides for penalties. Violation of sec. 9(1) is an offence
under sec. 51(1). Sec. 55 deals with cognizance of offences:
No court shall take cognizance of any offence against this Act except on the
complaint of the Chief wild Life Warden or such other officer as the State
Government may authorise in this behalf." What emerges from a perusal of
these provisions is that cognizance of an offence against the "Act"
can be taken by a PG NO 463 Court only on the complaint of the officer metioned
The person who lodged complaint dated 23.6.86 claimed to be such an officer. In
these circumstances even if the jurisdictional police purported to register a
case for an alleged offence against the Act, Sec. 210 (1) would not be
attracted having regard to the position that cognizance of such an offence can
only be taken on the complaint of the officer mentioned in that section. Even where
a Magistrate takes cognisance of an offence instituted otherwise than on a
police-report and an investigation by the police is in progress in relation to
same offence, the two cases do not lose their separate indentity. The section
seeks to obviate the anomalies that might arise from taking cognisance of the
same offence more than once. But, where as here cognisance can be taken only in
one way and that on the complaint of a particular statutory functionary there
is no scope or occasion for taking cognisance more than once and, accordingly,
section 210 has no role to play. The view taken by the High Court on the
footing1g of section 210 is unsupportable.
second-ground takes into consideration the merits of the matter. It cannot be
said that the complaint does not spell-out the ingrediants of the offence
alleged. A complaint only means any allegation made orally or in writing to a
Magistrate. with a view to his taking action, that some person, whether known
or unknown. has 'committed an offence.
trite jurisdiction under Section 482 Cr. P.C.
saves the inherent power of the High court, to make such orders as may be
necessary to prevent abuse of the process of any court or otherwise to secure
the ends of justice, has to be exercised sparingly and with circumspection. In
exercising that jurisdiction the High Court would not embark upon and enquiry
whether the allegations in the complaint are likely to be established by
evidence or not. That is the function of the Trial Magistrate when the evidence
comes before his. Through it is neither possible nor advisable to lay down any
inflexible rules to regulate that jurisdiction, one thing, however, appears
clear and it is that when the High Court is could upon to exercise this
jurisdiction to quash a proceeding at the stage of the Magistrate taking
cognizance of an offence the High Court is guided by the allegations, whether
those allegations, set out in the complaint or the charge-sheet do not in law
constitute or spell-out any offence and that resort to criminal proceedings
would, in the circumstances, amount to an abuse of the process of the court or
464 In Municipal Corporation of Delhi v. R.K. Rohtagi,  SCR 1 884 at 890
it is reiterated:
is, therefore, manifestly clear that proceedings against an accused in the
initial stages can be quashed only if on the face of the complaint or the
papers accompanying the same, no offence is constituted. In other words, the
test is that taking the allegations and the complaint as they are, without
adding or subtracting anything, if no offence is made out then the High Court
will be justified in quashing the proceedings in exercise of its powers under
Section 482 of the present Code." In Municipal Corporation of Delhi v.
P.D. Jhunjunwala,  1 SCR 895 at 897 it was further made clear:
. . . As to what would be the evidence against the respondents is not a matter
to be considered at this stage and would have to be proved at the trial. We
have already held that for purpose of quashing the proceedings only the
allegations set forth in the complaint have to be seen and nothing
further." In the complaint No. 653 dated 23.6.1986 of the Range Officer,
Forests, it is. inter alia, alleged:
have to report that on 8.6.86 at about 2 P.M. 1 learnt from Sri Aghnu Mahto, Forester, Jomatai Beat, that somebody
has killed an elephant in compartment No. 13 of Kundrugutu Reserve Forest. The matter was serious and so I immediately reported it to
Officer incharge, Sonua Police Station to register a case and for
further reported that Jiwan Mesi Longa, Coupe Oversee, Jomtal Beat has (been)
seen the accused persons entering into the forest during the night time and had
returned on the same Jeep No. BRX 9588 at about 8 or 9 A.M. He could indentify only Sri Prabhu Sahay Bhengra in the
jeep, was is driver of Block Development Officer, Bandgoan.
my enquiry I visited the spot and dug out the body of the elephant and found
that both of the tusk had PG NO 465 been extracted out, from the mouth of the
elephant. It was also learnt from the admission of the accused Prabhu Sahay Bhengra,
who was interrogated by me during the course of enquiry, that the elephant was
killed in the early morning of 1.6.86 before dawn i.e. on 1.6.86 by him and
Sri Abranham Bhengra
Sri Murad ali Khan
Sri Vikram Sing,
Sri Farukh Salauddin
Sri Babu Khan (name above) by two Riffles and had used 6 rounds of bullet. On
the spot two empty cartridges tusk with him and other tusk was taken away by Murad
Ali Khan and his associates. Later one of the tusks w as produced by Sri Prabhu
Sahay Bhengra to the officer-in- charge, Sonua Police Station in my presence.
basis of the information resolved from Bhengra I immediately proceeded to Jamshedpur with D.S.P., Chakardharpur and the
D.F.O. Pornahat Division, Sri Murad Ali Khan and his associates. Sri Baby Khan
was interogated who admitted that they, brought one of the. tusks and has sent
it to Lucknow for disposal. They were brought to Chaibasa
with jeep No BRX 9588 and they were handed over in the custody of the S.P. Singhbhum.
Chaibasa, for needful.
Ali Khan promised na produce the tusk in a few days time but did not disclosed
the place where he had sent the tusk at Lucknow ....' The complaint further
proceeds to say that elephant is included in the Schedule-1 of the Wild Life
(Protection) Act. 1972 and that the complainant was authorised by the Bihar
Government's notification No SO-1022/418/73 to file complaints under Act.
difficult to agree with the High Court that the allegations in the complaint
taken on their face-value would not amount in law to any offence against the
second ground on which the High Court came to quash the proceedings of the
Magistrate, on the facts of this case, is impermissible as an exercise under
Sec. 482, Cr.P.C.
was however, suggested for the respondents that the offence envisaged by sec.
9(1) read with sec. 2(16) and PG NO 466 sec. 50(1) of the Act, in its
ingredients and content, is the same or substantially the same as Sec. 429, IPC
and that after due investigation and police had filed a final report that no
offence was made out and that initiation of any fresh proceedings against
respondents would be impermissible. Sec. 429, IPC, which occurs in the chapter
"Of mischief" provides:
Mischief by killing or maiming cattle, etc., of any value or any animal of the
value of fifty rupees Whoever commits mischief by killing, poisoning, maiming
or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow, or
ox, whatever may be the value thereof, or any other animal of the value of
fifty rupees or upwards, shall be punished with imprisonment of either
description for a term which may extend to five years, or with fine, or with
both." The offence of hunting any wild-animal as defined in sec. 9(1) read
with Sec. 2(16) of the Act is much wider Section 56 of the 'Act' provides:
Nothing in this Act shall be deemed to prevent any person from being prosecuted
under any other law for the time being in force, for any act or omission which
constitutes an offence against this Act or from being liable under such other
law to any higher punishment or penalty than that provided by this Act:
that no person shall be punished twice for the same offence.'' We are unable to
accept the contention of Shri R.F. Nariman that the specific allegation in the
present case concerns the specific act of killing of an elephant, al1d that
such an offence at all events, falls within the overlapping areas between of
sec 42'), IPC on the one hand and 9(1) read with 50(l) of the Act on the other
and therefore constitutes the same-offence Apart from the fact that This
argument does not serve to support the order of the High Court in the present case,
this argument is, even on its theoretical possibilities, more attractive than
sound. The expression "any act or omission which constitutes any offence
under this Act' in section 56 of the Act, merely imports the idea tat the same
act or omission might constitute an offence under another law and could be
tried under such other law or laws also.
467 The proviso to Section 56 has also a familiar ring and is a facet of the
fundamental and salutory principles that permeate penalogy and reflected in analogous
provisions of sec. 26 of General Clauses Act,1897 Section 71 IPC; Sec. 300 of
the Cr.P.C., 1973 and constitutionally guaranteed under Art. 20(2) of the
Constitution. Sec. 26 of the General Clauses Act, 1897 provides:
Provision as to offences punishable under two or more enactments:
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.'' Broadly speaking, a protection against a second or multiple
punishment for the same offence, technical complexities aside, includes a
protection against re- prosecution after acquittal, a protection against re-
prosecution after conviction and a protection against double or multiple
punishment for the same offence. These protections have since received
constitutional guarantee under Art. 20(2). But difficulties are in the
application of the principle in the context of what is meant by ' same
offence". The principle in American law is stated thus:
proliferation of technically different offences encompassed in a single
instance of crime behavior has increased the importance of defining the scope
of the offense that controls for purposes of the double jeopardy guarantee.
statutory provisions will be treated as involving separate offenses for double
jeopardy purposes only if each provision requires proof of an additional fact
which the other does not" Blockburger v. United States, 284 U.S. 299, 304
1932 Where the same evidence suffices to prove both crimes hey are the same for
double Jeopardy purposes and the clause forbids successive trials and
cumulative punishment for the two crimes. The offenses must be Joined in one
indictment and tried together unless PG NO 468 the defendant requests that they
be tried separately.
v. United States, 432 U.S. 137 1977." [See "Double Jeoparady" in the
Encyclopedia of Crime and Justice vol. ', p. 630 1983 Edn. by Sanford H. Kadish: The Free Press, Collier
Mac Millan Publishers, London] The expressions "the same
offence", 'substantially the same offence'' in effect the same
offence" or "practically the same", have not done much to lessen
the difficulty in applying the tests to identify the legal common denomninators
of "same offence". Friedland in "Double Jeoparady'' [Oxford 1969] says at page 108:
trouble with this approach is that it is vague and hazy and conceals the
thought processes of the Court. Such an inexact test must depend upon the
individual impressions of the judges and can give little guidance for future
decisions. A more serious consequences is the fact that a decision in one case
that two offences are 'substantially the same' may compel the same result in
another case involving the same two offences where the circumstances may be
such that a second prosecution should be permissible.....
order that the prohibition is attracted the same act must constitute an offence
under more than one Act. If there two distinct and separate offences with
different ingredients under two different enactments, a double punishment is
not barred. In Leo Roy Frey v. The Superintendent, District Jail, Amritsar, [ 1958J SCR 822 the question arose
whether a crime and the offence of conspiracy to commit it are different
offences. This Court said:
offence of a conspiracy to commit a crime is a different offence from the crime
that is the object of the conspiracy because the conspiracy precedes the
commission of the crime and is complete before the crime is attempted or
completed, equally the crime attempted or completed does not require the
element of conspiracy as one of its ingredients. They are, therefore, quite
separate offences." In State of of Madhya Pradesh v. Veereshwar Rao Angnihotry
 SCR 868 the accused was tried by the special judge for offences under
sec. 409 IPC, and sec. 5(2) PG NO 469 of the Prevention of Corruption Act,
1947. While convicting him under sec. 409, IPC, the Special Judge held that the
accused could not be tried under sec. 5(2) of the Prevention of Corruption Act,
1947, as there was a breach of the requirement of law that the investigation be
by a police officer not below a particular rank. In appeal, the High Court set
aside even the conviction under Sec. 409 IPC, PG NO 469 applying the doctrine
of autrefois acquit holding that the Special Judge's finding on the charge
under Sec. 5(2) amounted to an acquittal and that punishment as a charge under
Sec. 409, would be impermissible. This court following the pronouncement in Omprakash
Gupta v. Slate of UP,  SCR 423 held that the two offences were distinct
and separate offences.
State of Bombay v. S.L. Apte & Anr., 11961] 3 SCR 107, the question that
fell for consideration was that in view of earlier conviction and sentence
under sec. 409, IPC a subsequent prosecution for an offence under sec. 105 of
Insurance Act. 1935, was barred by sec. 26 of the General Clauses Act and Art. 20(2)
of the Constitution. This Court observed:
operate as a bar the second prosecution and the consequential punishment thereunder,
must be for 'the same offence'. The crucial requirement therefore for
attracting the Article is that the offences are the same7 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 ..
" " ....Though section 26 in its opening words refer 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.
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
470 The same set of facts, in conceivable cases, can constitute offences under
two different laws. An act or an omission can amount to and constitute an
offence under the IPC and at the same time constitute an offence under any
other law. -I he observations of this court made in the context of sec. 2(3) of
Contempt of Courts Act might usefully be recalled. In Bathina Ramakrishna Reddy
v. State of Madras,  SCR 4''5 this Court examined the contention that the
publication of an article attributing corruption to a judicial officer was not
cognizable in contempt jurisdiction by virtue of sec. 2(3) of the Contempts of
Courts Act, 1953, which provided that:
High Court shall take cognizance of a contempt alleged to have been committed
in respect of a court subordinate to it where such contempt is an offence
punishable under the Indian Penal Code." The contention before this Court
was that the allegations made in the article constituted an offence under s.
499 of IPC and, that therefore, cognizance of such an offence under the Contempts
of Court Act was barred.
the contention, Mukharji, J., said:
our opinion, the sub-section referred to above excludes the jurisdiction of
High Court only in cases where the acts alleged to constitute contempt of a
subordinate court are punishable as contempt under specific provisions of the
Indian Penal Code, but not where these acts merely amount to offences of other
description for which punishment has been provided for in the Indian Penal
would be clear from the language of the sub-section which uses the words
"where such contempt is an offence" and does not say 'There the act
alleged to constitute such contempt is an offence'......." It is. however,
unnecessary to explore the possibilities of this contention as indeed there has
been admittedly no prior conviction and sentence for an offence under s. 429,
IPC e- en assuming that the two offence are substantially "the same
offence'. Suffice it to notice, prima facie that the ingredients of an offence
under sec. 9(1) read with sec. 50(1) of the Act require for its establishment
certain ingredients which are not part of the offence under sec. 429 and
result, these appeals are allowed, the orders of the High Court in Crl. Misc.
223 of 87 dated 13.2.1987 and the two orders in Crl. Misc. No. 258 of 1987(R)
and Crl. PG NO 471 Misc. No. 259/1987(R) 18.2.1987 are set aside and the order
dated 1.7.1986 of the learned Magistrate taking cognizance of the offence and
ordering issue of summons to the respondents is restored. The criminal case
initiated on the complaint will now be proceeded with in accordance with law.