Udayakumar K.U. v. State of Kerala and Rajeena K. Jose

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943** **CRL.MC NO. 1045 OF 2021** **CC 89/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II,** ## **SULTHANBATHERY** **CRIME NO. 3/2019 OF PULPALLI POLICE STATION** ## **PETITIONER/ACCUSED NO. 2:** **UDAYAKUMAR K.U., AGED 25 YEARS S/O.UNNIKRISHNAN, KOTTAKUNNU (H), CHEEYAMBAM P.O., CHETTAPAMBRA, PULPALLY, WAYANAD DISTRICT-673 579** **BY ADVS.SRI.SAJITH KUMAR V.** **SHRI.VIVEK A.V. SHRI.GODWIN JOSEPH SHRI.SANKAR INDUCHOODAN SMT.APARNA CHANDRAN** ## **RESPONDENTS/STATE AND COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH SUB INSPECTOR OF POLICE, PULPALLI POLICE STATION, ERNAKULAM DISTRICT-682 031** **2 RAJEENA.K.JOSE INSPECTOR SHO, PULPALLI POLICE STATION, PULPALLI, MULLENKOLLY, PUPALLI P.O., WAYANAD DISTRICT-673 579** **BY SMT. PUSHPALATHA M.K., SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.12.2021, THE COURT ON 09.02.2022 PASSED THE FOLLOWING:** Crl.M.C. No. 1045 of 2021 2 ## **O R D E R** The second accused in C.C. No. 89 of 2019 on the file of the Judicial First Class Magistrate's Court-II, Sulthan Bathery has moved this petition under Section 482 of the Code of Criminal Procedure for quashing Annexure-A FIR and Annexure-B final report and all proceedings initiated pursuant to the same in Crime No.3/2019 of Pulpalli police station pending before that Court. According to him, Crime No.3/2019 of Pulpalli police station was registered against himself and others by the Sub Inspector of that police station Smt.Rajeena K. Jose on 03.01.2019 at 11.10 hours alleging offence under Sections 143, 144, 145, 147, 148, 188, 353 and 341 read with 149 of IPC and Section 117(e) of the Kerala Police Act. The crime was registered suo motu by the Sub Inspector on the basis of the cause of action arisen at 09.40 hours on 03.01.2019. Going by the FIR, a harthal was observed under the auspices of the Sabarimala Achara Samrakshana Samithi, in protest against entry of women in Sabarimala. That day at 9.40 a.m., accused Nos. 1 to 6 along with other identifiable persons carrying lethal weapons like stone, stick, Crl.M.C. No. 1045 of 2021 3 etc. formed an unlawful assembly and in prosecution of their common object, raised provocative slogans against the Chief Minister of Kerala. When they were asked to disperse, the lawful directions of the officials were not obeyed by them, they also pelted stones at Shaji Textiles, Pulpalli in disobedience of the lawful directions; when they were resisted by police officials, they obstructed their official discharge of functions; they also intimidated the police officials. Thus, the Sub Inspector registered the crime suo motu. On conclusion of investigation, charge sheet has been laid and that was how the case was taken on file as C.C. No. 89/2019. 2. The petitioner submits that the case was registered by the 2[nd] respondent who herself conducted investigation and laid the charge sheet. On the same day and same facts, another crime as Crime No.4/2019 of Pulpalli police station was also registered against the petitioner and others on the basis of the First Information Statement furnished by one Sebastian. That crime was also registered by the same Sub Inspector, who, after conclusion of investigation laid charge sheet alleging offence under Sections 143, 147, 148, 452, 308, 427 Crl.M.C. No. 1045 of 2021 4 and 506 read with 149 of the IPC. On completion of formalities the charge sheet was laid before the Judicial First Class Magistrate's Court-II, Sulthan Bathery from where it was committed to the Sessions Court where the case was taken on file as S.C. No.135/2019. According to the petitioner, he was the 4[th] accused in S.C. No. 135/2019, he along with others stood trial and by Annexure-E judgment dated 29.01.2021 himself and three others were found guilty of offence under Sections 143 and 147 read with 149 of the IPC and were sentenced to undergo simple imprisonment till the rising of the Court and to pay a fine of Rs.500/- and Rs.3,000/- each; they were found not guilty and acquitted of other offences. On the same set of facts, thus Annexure-B charge sheet was laid. He faced trial and suffered conviction and now he is again being called upon to answer the Annexure B charge, which is bad and violative of Article 20(2) of the Constitution and Section 300(1) of the Cr.P.C. Therefore, entire proceedings in Annexures-A and B are sought to be quashed. 3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. Crl.M.C. No. 1045 of 2021 5 4. The learned counsel for the petitioner reiterated the arguments and also placed reliance on the decision reported in **Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao and another [(2011) 2 SCC 703]** . According to him, both the crimes have been registered on the same set of facts and therefore, after having suffered conviction in Crime No.4/2019, it is illegal to proceed against him again in Crime No.3/2019. 5. On the other hand, the learned Senior Public Prosecutor opposed the application. According to him, even though both the crimes were registered on the same transaction, allegations are different. According to him, Sections 218 and 220 of the Cr.P.C. permit a second trial on different set of facts. 6. Undisputedly, Crime Nos. 3/2019 and 4/2019 were registered on the same day in Pulpalli police station in respect of the same transaction. From Annexure-A FIR in respect of Crime No. 3/2019 and Annexure-C FIR in respect of Crime No.4/2019 of the very same police station, it is very obvious that the cause of action had arisen at 9.40 hours on 03.01.2019. Crime No. 3/2019 was registered Crl.M.C. No. 1045 of 2021 6 at 11.10 hours on 03.01.2019 suo motu by the Sub Inspector, the second respondent against five known accused persons and 20 identifiable persons alleging offence under Sections 143, 144, 145, 147, 148, 188, 353, 341 read with 149 of the IPC and Section 117(e) of the Kerala Police Act. There also it is stated that the accused persons were found committing act of vandalism in Shaji Textiles at Maria junction, while they were protesting against entry of women in Sabarimala and were observing harthal. The allegation seems to be that in spite of the harthal, the said shop was opened and thus they attacked the shop; when police officials tried to resist them, their official discharge of functions was obstructed and the reasonable directions given by them were disobeyed. On conclusion of investigation, a charge sheet has been laid which is the Annexure-B. 7. At the same time, Annexure-C, Crime No. 4/2019 was registered at 14.18 hours on 03.01.2019 on the basis of the first information given by Sebastian Avattappallil, who was running the said Shaji textiles. Here also the date and time of occurrence is 9.40 hours of 03.01.2019 and the crime was registered by the same Sub Crl.M.C. No. 1045 of 2021 7 Inspector. On conclusion of investigation, Annexure-D charge sheet was laid which was tried and by Annexure-E judgment, the first four accused persons including the petitioner were found guilty of offence under Sections 143 and 147 read with 149 of the IPC. It appears that that finding has become final. 8. Now the moot question is whether in the light of the Annexure-E judgment which has become final, there is justification in proceeding against the petitioner with Annexure B final report. 9. After hearing counsel on both sides, I am of the view that the principle ‘nemo debet bis vexari pro eadem causa’ is applicable, which means no one shall be vexed twice on the same cause of action. Firstly, as stated earlier, the cause of action in both the crimes had arisen at 09.40 hours on 03.01.2019. Even though two different crimes were registered at the instance of two different persons, the cases were registered on the basis of somewhat same facts. Not only that the place and time of the occurrence are one and the same, cause of action also is the same. Secondly, the petitioner and others have already undergone the ordeal of trial in S.C. No. 135/2019 on the file of the Crl.M.C. No. 1045 of 2021 8 Assistant Sessions Court, Sulthan Bathery and four of the accused have already been found guilty and suffered the punishment on the same cause of action. Even though offence under Sections 188 and 353 of the IPC and 117(e) of the Police Act are also alleged, that would not cause any qualitative difference in the subject matter of Crime No. 3/2019. As stated by the Hon’ble Supreme Court ambit of Section 300(1) of the Cr.P.C. is wider than Article 20(2) of the Constitution of India. While Article 20(2) of the Constitution only states that ‘no person shall be prosecuted and punished for the same offence more than once’, Section 300(1) of the Cr.P.C. states that ‘no one can be tried and convicted for the same offence or even for a different offence, but on the same facts (emphasis supplied). 10. In the decision reported in **State v. Nalini [AIR 1999 SC 2640]** , the Hon'ble Supreme Court has explained the maxim ‘nemo debet bis vexari pro eadem causa’ (no person should be twice vexed for the same offence) which embodies the well established common law rule that no one should be put to peril twice for the same offence. The principle under Section 300 of the Cr P.C. postulates that no man Crl.M.C. No. 1045 of 2021 9 should be vexed with more than one trial for offence arising out of identical acts committed by him. When an offence has already been subjected to judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts. It is further stated that though Article 20(2) of the Constitution of India embodies a protection against a second trail after a conviction of the same offence, the ambit of the clause is narrower than the protection afforded by Section 300 of the Cr.P.C. If there is no punishment for the offence as a result of the prosecution, Article 20(2) has no application. But clause (2) of Article 20 embodies the principle of autrefois convict, Section 300 of the Cr.P.C combines both autrefois convict and autrefois acquit. 11. Section 300 of the Cr.P.C. has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Section 221(1) of the Cr.P.C., or he could have been convicted for such other Crl.M.C. No. 1045 of 2021 10 offence under Section 221(2) of the Cr.P.C. 12. In this connection, it is also important to point out the decision reported in **Thakur Ram and others v. State of Bihar [AIR** **1966 SC 911]** , where it is stated that provision barring trial of persons again not only for the same offence, but also for any other offence based on same facts. 13. As rightly pointed out by the learned Public Prosecutor, Section 218 of the Cr.P.C. provides for separate charge for distinct offences. But here, for the mere reason that different charges could have been raised against the petitioner on the basis of allegations in Crime No. 3/2019, protective wings of Section 300 debars such a second trial since he has already faced trial on the same set of facts and cause of action. As held by the Supreme Court in **Nalini** (quoted supra), as the contours of the prohibition are so widely enlarged, it cannot be contended that the second trial can escape therefrom on the mere premise that some more allegations were not made in the first trial. It could have been possible for the prosecution to club both the crimes together since the cause of action had arisen at the very same Crl.M.C. No. 1045 of 2021 11 time and place. From a reading of both the FIRs, it is very obvious that cause of action for both the crimes had arisen at 9.40 hours on 03.01.2019 in the very same place. But two different crimes have been lodged and separate final reports have been laid. It would have been possible for the Investigating Officer, who is common, to club both the matters together. Merely for the reason that different offences could be deciphered in Crime No. 3/2019, once the petitioner has undergone trial and suffered conviction in Crime No. 4/2019, a second trial is barred under Section 300 of the Cr.P.C. and therefore, entire proceedings against the petitioner in Annexures - A and B are liable to be quashed. 14. Therefore, entire proceedings against the petitioner in Crime No. 3/2019 of Pulpalli police station and in C.C. No. 89/2019 pending before the Judicial First Class Magistrate's Court-II, Sulthan Bathery are quashed and the petitioner shall stand exonerated. The Crl.M.C. is allowed as above. **K.HARIPAL JUDGE** okb/DCS/8.2.22 Crl.M.C. No. 1045 of 2021 12 ## **APPENDIX** |**PETITIONER ANNEXURES**|| |---|---| |**ANNEXURE-A**|**A CERTIFIED COPY OF THE FIR IN CRIME**| ||**NO.3/2019 DATED 03.01.2019 OF PULPPALLI**| ||**POLICE STATION**| |**ANNEXURE-B**|**A CERTIFIED COPY OF THE FINAL REPORT DATED**| ||**23.02.2019 IN CRIME NO.3/2019 OF PULPALLI**| ||**POLICE STATION SUBMITTED BY THE 2ND**| ||**RESPONDENT BEFORE THE HON'BLE JUDICIAL FIRST**| ||**CLASS MAGISTRATE COURT-II, SULTHAN BATHERY**| |**ANNEXURE-C**|**A TRUE COPY OF THE FIR IN CRIME NO.4/2019**| ||**DATED 03.01.2019 OF THE PULPALLI POLICE**| ||**STATION**| |**ANNEXURE-D**|**A TRUE COPY OF THE FINAL REPORT DATED**| ||**23.02.2019 IN CRIME NO.4/2019 OF THE PULPALLI**| ||**POLICE STATION, SUBMITTED BY THE 2ND**| ||**RESPONDENT TO THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT-II, SULTHAN BATHERY**| |**ANNEXURE-E**|**A TRUE COPY OF THE JUDGMENT DATED 29.01.2021**| ||**IN SC NO.1352019 OF THE HON'BLE ASSISTANT**| ||**SESSIONS COURT, SULTHAN BATHERY**|