Criminal Appeal No 63 of 1957
Appeal from the judgment and order dated March 2 1956 of the Bombay High Court in Cr A No 1258 of 1955
H R Khanna and R H Dhebar for the appellant
N section Bindra for the respondents Amicus curiae
December 9
The following Judgment of the Court was delivered by AYYANGAR J
This appeal on a certificate under article 1341 of the Constitution granted by the High Court of Bombay principally raises for consideration the application and scope of article 202 of the Constitution and s26 of the  109 The facts necessary for the appreciation of the points involved in this appeal are few and may be briefly stated
The two respondents section L Apte and Miss Dwarkabai Bhat were respectively the Managing Director and the Managing Director of the Women s department of an insurance Company by name The Long Life Insurance Company  which had its headquarters at Poona
A power of attorney had been executed by the company in favour of the first respondent in June 1942 under which he was vested with the power control and possession inter alia of the moneys belonging to the company with a view to have them invested in proper securities
The second respondent as Manaaing Director also acted under another power of attorney executed by the company in her favour in or about June 1942 and by virtue thereof she was assisting the first respondent in main taining the accounts of the company
While the respondents were thus functioning an audit conducted in 1952 disclosed that considerable sums of money amounting to over Rs 55000 were shown as cash balances with the first respondent
Further enquiries made by the Directors showed that moneys aggregating to over Rs 95000 had from time to time been withdrawn from the company by the first respondent with the assistance and sanction of the second respondent professedly for the expenses of the company
Among the papers of the company was a voucher dated August 9 1952 evidencing the withdrawal of this amount by the first respondent and signed by him and this also bore the signature of the second respondent in token of her sanction
The respondents however could furnish no proper account of the legitimate expenses of the company for which the amount was purported to be taken
Both the respondents were thereupon prosecuted for an offence under section 409 of the Indian Penal Code and also for an offence under section 105 of the Indian Insurance Act in Criminal Case 82 of 1953
The learned Magistrate convicted and sentenced both the respondents for both the offences with which they were charged
The respondents thereupon filed 110 appeals to the Court of the Sessions Judge Poona and the learned Sessions Judge by his order dated May 3 1954 while confirming the conviction and sentence on the respondents under section 409 of the Indian Penal Code set aside their conviction under section 105 of the Indian Insurance Act
The reason for the latter order was the finding of the learned Sessions Judge that the sanction required by section 107 of the Indian Insurance Act which was a prerequisite for the initiation of the prosecution under section 105 had not been obtained before the complaint in respect thereof had beed filed
The conviction and sentence under section 409 of the Indian Penal Code which had been affirmed by the Sessions Judge in both the cases have now become final
Subsequetly the Insurance Company obtained the sanction of the Advocate General of Bombay under section 107 of the Indian Insurance Act and filed a complaint in the Court of the Judicial Magistrate Poona on January 18 1955 against the two respondents charging each of them with an offence under section 105 of the Indian Insurance Act
The Magistrate took the case on file and directed the issue of process
Thereupon the two respondents made an application before the Magistrate on March 22 1955 praying that the complaint against them may be dismissed as being barred by section 4031 of the Criminal Procedure Code by reason of their previous conviction by the Magistrate for the same offence under the Insurance Act and their acquittal in respect thereof by the Sessions Judge pleading in addition that when the conviction by the Magistrate stood they had even undergone a portion of the sentence imposed
The learned Magistrate overruled this plea on the ground that the acquittal of the respondents was not on the merits of the case but for lack of sanction under section 107 of the Indian Insurance Act which rendered the Magistrate without jurisdiction to entertain the complaint
The trial was then proceeded with and evidence was led
But finally the Magistrate acquitted the respondents on the ground that article 202 of the Constitution and section 26 of the were a bar to their 111 conviction and punishment
The State of Bombay thereupon filed an appeal to the High Court under section 417 of the Criminal Procedure Code
The appeal was dismissed by the learned Judges who however granted a certificate on the strength of which this appeal has been preferred
As the prosecution against the respondents under section 105 of the Insurance Act has been held to be barred by reason of the provisions contained in article 202 of the Constitution and section 26 of the  it would be convenient to set out these provisions before entering on a discussion of their content and scope
Article 202 of the Constitution runs No person shall be prosecuted and punished for the same offence more than once
 Section 26 of the enacts 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 offence As the application of these two provisions is conditioned by the identity of the two offences which form the subject of the prosecution or prosecutions we might as well reproduce the relevant provisions constituting the two offences viz section 409 of the Indian Penal Code and section 105 of the Indian Insurance Act 409
Whoever being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker merchant factor broker attorney or agent commits criminal breach of trust in respect of that property shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine
 Criminal breach of trust referred to in the section is defined in section 405 of the Indian Penal Code in these terms 405
Whoever being in any manner entrusted 112 with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged
or of any legal contract express or implied which he has made touching the discharge of such trust or wilfully suffers any other person so to do commits criminal breach of trust 
 The offence created by the Indian Insurance Act is as follows 105
1 Any director managing agent manager or other officer or employee of an insurer who wrongfully obtains possession of any property of the insurer or having any such property in his possession wrongfully withholds it or wilfully applies it to purposes other than those expressed or authorised by this Act shall on the complaint of the Controller made after giving the insurer not less than fifteen days  notice of his intention or on the complaint of the insurer or any member or any policy holder thereof be punishable with fine which may extend to one thousand rupees and may be ordered by the Court trying the offence to deliver up or refund within a time to be fixed by the Court any such property improperly obtained or wrong fully withheld or wilfully misapplied and in default to Buffer imprisonment for a period not exceeding two years
2This section shall apply in respect of a provident society as defined in Part III as it applied in respect of an insurer Before addressing ourselves to the arguments urged before as by the Yearned Counsel for the appellant State it is necessary to set out one matter merely to put it aside
The entire argument on behalf of the State before the High Court proceeded on denying that the order of a Criminal Court passed under section 105 of the Indian Insurance Act directing the accused to deliver up or refund any such property improperly withheld or wilfully misapplied was a punish ment within either article 202 of the Constitution or 113 section 26 of the 
The learned Judges of the High Court rejected this contention
Though learned Counsel for the appellant originally submitted that he was contesting this conclusion of the High Court he did not address us any argument under that head and we do not therefore find it necessary to dwell on this point any further but shall proceed on the basis that a direction by the Magistrate to replace the moneys of the insurer with a penalty of imprisonment in default of compliance therewith was a punishment within article 202 of the Constitution and section 26 of the 
Turning to the main points urged before us we may premise the discussion by stating that it was not disputed before us by learned Counsel for the State as it was not disputed before the learned Judges of the High Court that the allegations to be found in the original complaint in Criminal Case 82 of 1953 on which the conviction under section 409 of the Indian Penal Code was obtained were similar to the allegations to be found in the complaint under section 105 of the Indian Insurance Act
It should however be mentioned that there was not any complete identity in the statement of facts which set out the acts and omissions on the part of the respondents which were alleged to constitute the two offences section 409 of the Indian Penal Code and section 105 of the Insurance Act
For instance in the complaint which has given rise to this appeal the crucial paragraphs detailing the allegations are 12 and 13 of the complaint which run 12
The company submits that the accused has thus wrongfully obtained possession of Rs 95000 or having that property in his possession wrongfully withheld it or wilfully applied it to purposes other than those expressed or authorised by the  and committed an offence on the 9th August 1952 under Sectionof the  13
The company through their Solicitorscalled upon the accused to explain his conduct within7 15 114 days from the receipt of the letter
The accused has failed and neglected to reply to the said letters
 It is obvious that on these allegations alone the offence of criminal breach of trust could not be established as they lack any reference to any entrustment or to the dishonest intent which are the main ingredients of the offence of criminal breach of trust
But to this point about the difference in the ingredients of the two offences we shall revert a little later
Even assuming that the allegations to be found in the two complaints were identical the question however remains whether to attract the ban imposed by either article 202 of the Constitution or section 26 of the General ClausesAct on a second punishment it is sufficient that the allegations in the two complaints are substantiallythe same or whether it is necessary further that theingredients which constitute the two offences should be identical
We shall first take up for consideration article 202 of the Constitution whose terms we shall repeat 20
2 No person shall be prosecuted and punished for the same offence more than once
 To 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 same ie 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
It would be seen from a comparison of section 105 of the and a 405 of Indian Penal Code a 409 of the Indian Penal Code being only an aggravated form of the same offence that though some of the necessary ingredients are common they differ in the following 1Whereas under a 405 of the Indian Penal Code the accused must be entrusted with property or with dominion over that property under section 105 of 115 the the entrustment or dominion over property is unnecessary it is sufficient if the manager director etc obtains possession of the property
2The offence of criminal breach of trust section 405 of the Indian Penal Code is not committed unless the act of misappropriation or conversion or the disposition in violation of the law or contract is done with a dishonest intention but section 105 of the postulates no intention and punishes as an offence the mere withholding of the property whatever be the intent with which the same is done and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarly without reference to any intent with which such application or misapplication is made
In these circumstances it does not seem possible to say that the offence of criminal breach of trust under the Indian Penal Code is the same offence for which the respondents were prosecuted on the complaint of the company charging them with an offence under section 105 of the 
This aspect of the matter based on the two offences being distinct in their ingredients content and scope was not presented to the learned Judges of the High Court possibly because the decisions of this Court construing and explaining the scope of article 202 were rendered later
In Om Prakash Gupta vs State of UP 1 the accused a clerk of a municipality had been convicted of an offence under section 409 of the Indian Penal Code for having misappropriated sums of money received by him in his capacity as a servant of the local authority and the conviction had been affirmed on appeal by the Sessions Judge and in revision by the High Court
The plea raised by the accused before this Court in which the matter was brought by an appeal with special leave was that section 409 of the Indian Penal Code had been repealed by implication by the enactment of sub sections
1 c and 2 of section 5 of the Prevention of Corruption Act because the latter dealt with an offence of substantially the same type
This Court repelled that contention
It 1  116 analysed the ingredients of the two offences and after pointing out the difference in the crucial elements which constituted the offences under the two provisions held that there was no repeal of section 409 of the Indian Penal Code implied by the constitution of a new offence under the terms of the Prevention of Corruption Act
It was the application of this decision and the ratio underlying it in the context of article 202 of the Constitution that is of relevance to the present appeal
The occasion for this arose in State of Madhya Pradesh vs Veereshwar Rao Agnihotry 1
The res pondent was a tax collector under a municipality and was prosecuted for offences among others under section 409 of the Indian Penal Code and s 52 of the Prevention of Corruption Act for misappropriation of sums entrusted to him as such tax collector
By virtue of the provision contained in section 7 of the Criminal Law Amendment Act XLVI of 1952 the case was transferred to a Special Judge who was appointed by the State Government after the prosecution was commenced before a Magistrate
The Special Judge found the accused guilty of the offence under section 409 of the Indian Penal Code and convicted him to three years  rigorous imprisonment but as regards the charge under section 52 of the Prevention of Corruption Act he acquitted the accused on the ground of certain procedural non compliance with the rules as to investigation prescribed by the latter enactment
The respondent appealed to the High Court against this conviction and sentence under section 409 of the Indian Penal Code and there urged that by reason of his acquittal in res pect of the offence under section 52 of the Prevention of Corruption Act his conviction under section 409 of the Indian Penal Code could not also be maintained the same being barred by article 202 of the Constitution
The High Court of Madhya Bharat accepted this argument and allowed the appeal and the State challenged the correctness of this decision by an appeal to this Court
Allowing the appeal of the State Govinda Menon J delivering the judgment of the Court observed 11957 SCR 868 117 This Court has recently held in Om Prakash Gupta vs The State of UP that the offence of criminal misconduct punishable under section 52 of the Prevention of Corruption Act 11 of 1947 is not identical in essence import and content with an offence under section 409 of the Indian Penal Code 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 section 409 of the Indian Penal Code even if the respondent has been acquitted of an offence under section 52 of the Prevention of Corruption Act II of 1947 The High Court also relied on article 20 of the Constitution for the order of acquittal but that Article cannot apply because the res pondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and therefore the well known maxim Nemo debet bis vexari si constat curiae 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 article 20 cannot apply Before leaving this part of the case we might also point out that a similar view of the scope of the rule as to double jeopardy has always been taken by the Courts in America
The words of the Vth Amendment where this rule is to be found in the American Constitution are Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb and it will be noticed that there as well the ban is confined to a second prosecution and punishment for the same offence
Willoughby after referring to the words quoted in the Fifth Amendment says Cases may occur in which the same act ma y render the actor guilty of two distinct offences In such cases the accused cannot plead the trial and acquittal or the conviction and punishment for one offence in bar to a conviction for the other1
In Albrecht vs 1Constitution of the United States Vol
II p 1158
 118 United States 1 Brandeis J speaking for a unanimous Court said There is a claim of violation of the Vth Amendment by the imposition of double punishment
This contention rests upon the following facts
Of the nine counts in the information four charged illegal possession of liquor four illegal sale and one maintaining a common nuisance
The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed
But possessing and selling are distinct offences
One may obviously possess without selling and one may sell and cause to be delivered a thing of which he has never had possession or one may have possession and later sell as appears to have been done in this case
The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence
There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction
 If therefore the offences were distinct there is no question of the rule as to double jeopardy as embodied in article 202 of the Constitution being applicable
The next point to be considered is as regards the scope of section 26 of the 
Though section 26 in its opening words refers 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
This 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 invoked
It therefore follows that in the present case as the respondents are not being sought to be punished for the 1 1927 273 TTS I  119 same offence twice but for two distinct offences con stituted or made up of different ingredients the bar of the provision is inapplicable
In passing it may be pointed out that the construction we have placed on article 202 of the Constitution and section 26 of the is precisely in line with the terms of section 4032 of the Criminal Procedure Code which runs 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 sub section 1
 It would be noticed that it is because of this provision that the respondents before us were originally charged before the Magistrate in Criminal Case 82 of 1953 with offences under section 409 of the Indian Penal Code as well as section 105 of the Indian 
The respondents in this case did not appear in this Court and as the appeal had to be heard ex parte Mr N section Bindra was requested to appear as amicus curiae to assist the Court at the hearing of the appeal
We express our thanks to him for the assistance he rendered
The appeal is accordingly allowed and the judgment and the order of the High Court is set aside and the case will go back to the Judicial Magistrate Fourth Court Poona for being proceeded with according to law
Appeal allowed
Case remanded


Summary:
By article 202 of the Constitution No person shall be prose cuted and punished for the same offence more than once
 Section 26 of the  provides 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 offence
 The respondents were both convicted and sentenced by the Magistrate under section 409 Of the Indian Penal Code and section 105 Of the Insurance Act
The Sessions judge on appeal upheld the conviction and sentence under section 409 of the Indian Penal Code but set aside the conviction and sentence under section 105 of the Insurance Act on the ground that no sanction under section 107 of the Insurance Act had been obtained
Sanction was thereafter obtained and a fresh complaint was filed against the respondents under section 105 of the Insurance Act
The trial ended in an acquittal by the Magistrate who held that article 202 Of the Constitution and also section 26 of the were a bar to conviction
The State appealed to the High Court against the 108 order of acquittal but the appeal was dismissed
On further appeal by the State Held that the crucial requirement to attract article 202 Of the Constitution is that the two offences should be identical
it is therefore necessary to analyse and compare the ingredients of the two offences and not the allegations made in the two complaints to see whether their identity is established
So judged there can be no doubt that in spite of the presence of certain common elements between the two the offences under section 409 of the Indian Penal Code and section 105 of the Insurance Act are distinct in their ingredients content and scope and cannot be said to be identical
Om Prakash Gupta vs State of U P  and State of Madhya Pradesh vs Veereshw ar Rao Agnihotry   referred to
A similar view of the scope of the rule as to double jeopardy has always been taken by the American Courts
Albrecht vs United States  71 Law Ed 505 referred to
In section 26 of the also the emphasis is not on the facts alleged in the two complaints but on the ingredients of the two offences charged
This construction of article 202 of the Constitution and section 26 of the  is precisely in line with section 4032 of the Code of Criminal Procedure
Consequently it could not be said in the instant case that the respondents were being sought to be punished for the same offence so as to attract either article 202 Of the Constitution or section 26 of the