Ramachandran v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939 Crl.MC.No. 4210 of 2013 () --------------------------AGAINST THE ORDER DATED 19.08.2013 IN CMP NO.2578/2013 IN CC NO.72/2007 of ADDITIONAL CHIEF JUDICIAL M AGISTRATE COURT, ERNAKULAM . PETITIONER/IST ACCUSED: ------------------------RAMACHANDRAN, AGED 54 YEARS, S/O KRISHNAN, MANIKKATH HOUSE, VADUTHALA, CHERANELLOOR VILLAGE BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/ COMPLAINANT/ STATE: ---------------------------------------------- 1. SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION-682 018 2. DEPUTY SUPERINTENDENT OF POLICE CBCID, ERNAKULAM-682 018 3. SUB INSPECTOR OF POLICE, IRINJALAKKUDA POLICE STATION-680 125 4. STATE REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 ## BY PUBLIC PROSECUTOR MS.K.K.SHEEBA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4210 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE I COPY OF THE FINAL REPORT ANNEXURE II CERTIFIED COPY OF THE JUDGMENT IN CC 686/2004 OF JUDICIAL IST CLASS MAGISTRATE IRINJALAKKUDA ANNEXURE III COPY OF THE PETITION IN CMP 2578/2013 IN CC 72/07 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE ANNEXURE IV TRUE COPY OF THE ORDER IN CMP 2578/2013 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE ERNAKULAM RESPONDENT(S)' EXHIBITS NIL ----------------------- //TRUE COPY// ## **A.HARIPRASAD, J. -------------------------------------Crl.M.C. No.4210 of 2013** ## **-------------------------------------Dated this the 19[th] day of September, 2017** ## **ORDER** Petitioner is the 1[st] accused in C.C.No.72 of 2007 on the file of the Additional Chief Judicial Magistrate, Ernakulam. The offences alleged against him are punishable under Sections 468 and 473 read with Section 34 of the Indian Penal Code (in short, “IPC”). Petitioner approached this Court to quash the final report on the ground that the charge cannot be legally proceeded with on account of the acquittal of the petitioner in C.C.No.686 of 2004 by the Judicial First Class Magistrate, Irinjalakuda. It is further contended that in both the cases identity of the ingredients of the offences is the same. Therefore, the prosecution is hit by Article 20(2) of the Constitution of India and Section 300 of the Code of Criminal Procedure (in short, “Cr.P.C.”) 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The petitioner was initially implicated in Crime No.22 of 2004 of Irinjalakuda Police Station registered under Sections 468, 472 and 420 read with Section 34 IPC. The gist of prosecution allegation was that in the last week of November, 2003, the accused persons, including the 2 Crl.M.C. No.4210 of 2013 petitioner, in furtherance of their intention to cheat the defacto complainant, made him believe that his SSLC book would be attested in the embassy of UAE for securing a job. On that pretext, the accused persons received his SSLC book and `2,700/- as fees for attestation. Thereafter the accused persons by using forged seals attested the same, which resulted in the defacto complainant losing his SSLC book and the fees. He lost a further sum of 75,000/- given for visa. Thereby the accused persons committed the offences was the allegation in the earlier crime. After investigation, a final report was filed and the petitioner along with other accused was tried in C.C.No.686 of 2004 on the file of the Judicial First Class Magistrate Court, Irinjalakuda. As per Annexure-II judgment, the accused persons were acquitted under Section 248(1) Cr.P.C. finding that they were not guilty of the offences alleged under Sections 468, 472 and 420 read with Section 34 IPC. 4. While the petitioner was in custody in connection with Crime No.22 of 2004, he was questioned by the investigating officer and recorded a confession statement under Section 27 of the Evidence Act, which led to the discovery of seals and other incriminating materials allegedly used for committing the forgery. Thereafter the investigating officer registered another crime as Crime No.25 of 2004 of Irinjalakuda Police Station under Sections 468 and 473 read with Section 34 IPC. 3 Crl.M.C. No.4210 of 2013 Since the recovery was effected from a house at Ernakulam, the case was transferred to the Police Station having jurisdiction over the area. The investigation into the matter was taken over by the CBCID as Crime No.116 CR/EKM/04. After conducting a thorough investigation, CBCID filed a final report before the Additional Chief Judicial Magistrate Court, Ernakulam and it was taken on file as C.C.No.72 of 2007. 5. Learned counsel for the petitioner contended that the investigating officer grossly erred procedurally. As he had obtained an information regarding the offences under Sections 468 and 473 IPC while the petitioner was questioned in connection with Crime No.22 of 2004, he should have implicated him in other offences, if any, unearthed in the same crime. Registration of another crime on the same set of allegations for offences having the same identity with offences already charged is impermissible in law. 6. Article 20 (2) of the Constitution of India reads thus: ## _“_ _**20. Protection in respect of conviction for offences.** -_ _xxxxxxx_ ## _(2) No person shall be prosecuted and punished for the same offence more than once._ _xxxxxx”_ Section 300 Cr.P.C. is an extension of the above Constitutional provision. 4 Crl.M.C. No.4210 of 2013 For our purpose, Sub-section (1) of Section 300 Cr.P.C. is sufficient. It reads as follows: _“_ _**300. Person once convicted or acquitted not to be tried for same offence** .- (1) 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-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof._ ## _xxxxxx”_ On a reading of the provision, it will be clear that a person, after standing a trial before a competent court for an offence, even if convicted or acquitted, cannot be tried for the same offence for the second time. The provision further shows that he gets exemption from a second trial, if another case is registered on the same facts for any other offence for which a different charge from the one made against him might have been made under Subsection (1) of Section 221 Cr.P.C. or for which he might have been convicted under Sub-section (2) thereof. In this context Section 221 Cr.P.C. is quoted below for clarity: 5 Crl.M.C. No.4210 of 2013 ## _“_ _**221. Where it is doubtful what offence has**_ _**been committed** .- (1) 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 with having committed some one of the said offences._ _(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of subsection (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.”_ 7. A Bench of the Supreme Court in **Sangeetaben Mahendrabhai Patel v. State of Gujarat and another (AIR 2012 SC 2844)** has considered the principles relating to autrefois acquittal. It is held in the following terms: _“This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent Court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an_ 6 Crl.M.C. No.4210 of 2013 _estoppel or res judicata against the fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent Court in a previous trial on a factual issue. In order to attract the provisions of Art.20(2) of the Constitution i.e. Doctrine of autrefois acquit or S.300 CrPC or S.71 IPC or S.26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.”_ 8. Considering the facts and circumstances, I am of the view that the investigating officer of the second crime committed a grave mistake for arraigning the petitioner for an offence under Section 468 IPC for the second time. The acquittal of petitioner in respect of that offence was 7 Crl.M.C. No.4210 of 2013 standing, and therefore, it is clearly hit by Section 300(1) Cr.P.C. Further, the offence under Section 473 IPC is also attracted already against the petitioner in Crime No.22 of 2004 and for that reason, he cannot be booked in another crime. Hence, I find that the Annexure-IV order passed by the Additional Chief Judicial Magistrate, Ernakulam refusing to record an acquittal under Section 300 Cr.P.C. is illegal. It needs to be interfered with. In the result, the petition is allowed. Annexure-IV order is set aside. Petitioner is acquitted for all the offences involved in C.C.No.72 of 2007 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**