1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Misc. Petition No. 491/2006 Vaman Narayan Ghiya vs. State of Rajasthan with S.B. Criminal Misc. Petition No. 1298/2006 Azahruddin @ Aju Miyan vs. State of Rajasthan & Anr. Date: 03.07.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Reportable Mr. Alok Sharma and Mr. Rinesh Gupta, for the petitioners. Mr. Suresh Sahni, for the applicant-Pradeep Malhotra. Mr. A.K. Bajpai, Special Public Prosecutor assisted by Mr. Sarfaraz Haider Khan, for the State. Since both the aforesaid petitions filed under Section 482 pertain to quashing FIR No. 33/2006 registered at police station Nihalganj, Dholpur for the offence under Section 380 of IPC, they are being disposed of by this common order. 2. The relevant facts giving rise to these petitions are set out in nub as under:- That a report came to be lodged at police station Vidhydhar Nagar, Jaipur on 06.06.2003 by one Ram Singh, Circle Inspector, police station Vidhyadhar Nagar, Jaipur. The said report was registered as FIR No. 146/2003 for the offences punishable under Sections 379, 411 and 401 of IPC. During the investigation of this case, the Investigating Agency made an arrest of accused persons including petitioner Vaman Narayan Ghiya. The Investigating Officer 2 obtained an information under Section 27 of Indian Evidence Act from the petitioner and in pursuance thereof, carried out a search on 25.6.2003 of the Ware-House 'Indian Craft' belonging to accused Pradeep Malhotra situated at D-21/5, Okhla, Phase-II, Delhi. During search recovery of 41 boxes was allegedly made from the aforesaid Ware-House of the co- accused Pradeep Malhotra at Delhi. These 41 boxes are said to have contained various artifacts/articles/idols which were duly seized by the Investigating Agency in FIR No. 146/2003 of police station Vidhyadhar Nagar, Jaipur. After completion of investigation, the Officer In-charge of police station Vidhyadhar Nagar, Jaipur submitted a charge-sheet in the offences under Sections 379, 411, 401, 413, 414 and 120-B of IPC and Sections 5, 14/25(2) of Art and Antiquities Treasure Act, 1972. However, police station Vidhyadhar Nagar, Jaipur kept the investigation pending under Section 173(8) of Cr.P.C. on 10 points, as enumerated in the charge-sheet. Investigation on Point No. 5 was kept open for the purpose of ascertaining the original place from where recovered idols and artifacts seized from the accused persons, belonged to. In due course of time, the case came up for trial before the Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur, who concluded the trial and delivered judgment on 20.11.2008, therein. It is found that the petitioner Vaman Narayan Ghiya has been convicted in the offences under Sections 411 and 413 of IPC and Sections 3/25(1) and 14/25(2) of Art and 3 Antiquities Treasure Act, 1972 (hereinafter to be referred as 'Act 1972'). 3. On the other hand, one more FIR No. 33/2006 came to be registered on 30.01.2006 for the offence under Section 380 of IPC, on an information given by the complainant Shri Neelam Kumar. As per the contents of FIR No. 33/06 of police station Nihalganj, Dholpur, many articles of historical importance and antiques had been lying since long in the basement of City Palace of Dholpur. This basement was lying closed for the last 4-5 years. It is stated that on 30.01.2006 when the staff members namely Jahoor Khan and Laxmi Narayan of City Palace went to clean the basement, they found the painting of His Highness in Royal Attire, a painting of His Highness and Her Highness in Royal Attire in wooden frame, a scenery in glittering metal fixed in wooden and glass frame, a black dog, two round pot (Lotas) made of metal, one tray made of glittering metal, two owls of metal, one pig of metal and one Jar (Surahi) made of metal, missing from the basement. It was presumed that these articles had been stolen by somebody, thus, the complainant Neelam Kumar, an employee of City Palace, Dholpur lodged the FIR with police station Nihalganj, Dholpur which was registered by police as FIR No. 33/06 in the offence under Section 380 of IPC. During investigation S.H.O. police station Nihalganj, Dholpur obtained production warrant of Vaman Narayan Ghiya and Pradeep Malhotra from the court of Additional Chief Judicial Magistrate, Dholpur and in pursuance thereof, arrested them on 20.2.2006 and produced them before the concerned court. Both these accused persons have been in judicial custody in FIR No. 33/06 of police station Nihalganj, Dholpur. After 4 completion of investigation, S.H.O. police station Nihalganj, District Dholpur submitted a charge-sheet against the accused persons namely Vaman Narayan Ghiya, Pradeep Malhotra, Abdul Kareem @ Nanne Khan and Abid Sageer in the offences under Sections 380 and 411 of IPC. The charge-sheet reveals that the accused Aju Miyan has yet not been arrested in this case and investigation has been kept pending under Section 173(8) of Cr.P.C. against the Hari Agarwal, Haider Ali, Aju Miyan, Ashok Agarwal and Jassi Brass Wala. 4. It is very pertinent to mention at this stage that the petitioner filed this petition under Section 482 of Cr.P.C. for quashing the FIR No. 33/2006 of police station Nihalganj, Dholpur and sought interim relief praying that further proceedings in FIR NO. 33/2006 be stayed till the final decision of the main petition. This Court having heard both the parties on 29.5.2006 stayed the proceedings and passed the following order:- “Learned counsel for the petitioner has submitted that in utter disregard to this Court, the I.O. has filed charge- sheet in order to render his petition infructuous. He has, therefore, prayed that if further proceedings in the court below are not stayed, the court below will proceed to frame charges making it difficult for the petitioner to get his FIR quashed. Put up on 12.7.2006. till then, further proceedings in court below instituted on the basis of FIR NO. 33/06 registered at P.S. Nihalganj, Dholpur are hereby stayed.” 5. It has been alleged by the petitioner that the impugned FIR (FIR No. 33/06 of police station Nihalganj, Dholpur) has been maliciously instituted by police with ulterior motive to 5 unnecessarily further harass and malign him. This FIR, by all means qualifies to a second FIR which cannot be registered under Section 154 of Cr.P.C. and would be completely inadmissible hit by Section 162 of Cr.P.C. The FIR NO. 146/03 which was initially registered at police station Vidhyadhar Nagar, Jaipur and which led to filing the charge-sheet against the accused persons including the petitioner Vaman Narayan Ghiya but squarely take into its fold the alleged offences which has now been maliciously segregated, leading to registration of the impugned FIR No. 33/06 of police station Nihalganj, Dholpur. 6. According to the petitioner, it is an admitted position that the articles which are alleged to have been stolen in the impugned FIR (FIR No. 33/06 of police station Nihalganj, Dholpur) were allegedly recovered during the course of investigation of FIR No. 146/03 of police station Vidhyadhar Nagar, Jaipur. The recovery, which was allegedly effected at Ware- house 'Indian Craft' of Pradeep Malhotra in pursuance of an information purportedly given under Section 27 of Indian Evidence Act by the accused-petitioner did contain the articles which in the impugned FIR are alleged to be stolen. Under such circumstances, the subject matter relating to disclosure of offence qua the impugned FIR have already been decided by the Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur, which arose out of FIR No. 146/2003 of police station Vidhyadhar Nagar, Jaipur. In this backdrop, the impugned FIR No. 33/03 for all intents and purposes, is a second FIR, which is inadmissible evidence and cannot be registered and acted upon by the police. The subject matter of impugned FIR is directly connected with the subject matter of FIR No. 146/03 of police station Vidhyadhar Nagar, 6 Jaipur and the criminal case arising out of and pertaining to FIR No. 146/03 has been finally decided by Additional Sessions Judge (Fast Track), No. 1, Jaipur City Jaipur on 20.11.2008. The impugned FIR NO. 33/06 of police station Nihalganj having suffered from vice of being a second FIR which is hit by an express legal bar engrafted under Section 162 of Cr.P.C. and completely violative of Article 21 of the Constitution, this FIR No. 33/06 registered at police station Nihalganj, Dholpur for the offence under Section 380 of IPC deserves to be quashed. 7. The fact situation emerging in the instant case is thus:- (i)One FIR No. 146/03 was registered by police station Vidhyadhar Nagar, Jaipur on 06.06.2003 in the offences under Sections 379, 411 and 401 of IPC. (ii)During the investigation of this case, 41 boxes were recovered from the Ware- house 'Indian Craft' situated at D- 21/5, Okhla, Phase-II, Delhi, which belonged to the accused Pradeep Malhotra. (iii)These 41 boxes contained 506 articles which were exhibited by the trial court, such as, Ex/A. 963 to 1468. (iv)Out of these 506 articles, 485 articles on inspection were found to be artifacts. (v)These 485 articles/artifacts recovered from the Ware-house of Pradeep Malhotra contained those 11 articles which have been found to be the subject matter of FIR No. 33/06 of police station Nihalganj,Dholpur.11 artifacts/articles 7 were found to have been stolen on 30.1.2006 by Jahoor Khan and Laxmi Narayan when these employees of City Palace, Dholpur went to clean the basement which had been lying closed for the last 4-5 years. Since the stolen articles of FIR No. 33/06 were recovered from the Ware-house of Pradeep Malhotra on 25.6.2003, it could be presumed that these articles must have been stolen before 25.6.2003 by some person or persons. (vi)Though the FIR No. 33/06 of police station Nihalganj has not been exhibited in the court of Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur during trial but the 11 stolen articles which are the subject matter of this FIR have been exhibited as Ex/A. 1263 to 1269 and Ex/A. 1448 to 1450. 8. Heard learned counsel for the petitioners, learned counsel for the applicant- Pradeep Malhotra as also learned Special Public Prosecutor appearing for the State and perused the relevant material available on record. 9. Learned counsel Mr. Alok Sharma appearing for the petitioner has vehemently canvassed that since the petitioner has already been put to trial for the alleged recovery of articles having said to be stolen from the City Palace of Dhlopur and has been convicted for the offences under Sections 411 and 413 of IPC and Sections 3/25(1) and 14/25(2) of 'Act, 1972', he cannot be made liable to put to trial again for the same offence and on same facts by the Additional Chief Judicial Magistrate, Dholpur, 8 as it would lead to double jeopardy. He has further contended that for all practical intents and purposes the offence of theft and the offence receiving the property stolen in the aforesaid theft are offences in the course of same transaction. If one series of acts so connected together as to form the same transaction, have been done which qualify to be offences, then for the aforesaid offences, an accused person can be tried only at one trial and thus, the registration of FIR No. 33/06 completely defies the tenets of provisions contained under Section 220 of Cr.P.C. 10. Learned counsel has further contended that the prosecution has failed to establish that the petitioner and Pradeep Malhotra received the allegedly stolen articles at different times. Since the recovery of all articles in 41 boxes has been made at one point of time and it is not proved that these articles were received by them at different times so different trials in different courts with regard to same articles cannot be held. He has cited the judgments reported in AIR 1932 Lahore 615 (1) and 1923 Criminal Law Journal Reports (Vol. XXIV) 707 in support thereof. 11. Learned counsel has relied upon one more judgment reported in Crimes IX-1990 (3) pg. 218 wherein, it has been held by Punjab and Harayana High Court that :- “Second trial of a person once tried, and either convicted or acquitted on the same facts which might be disclosing any other offence is barred under Section 300 Cr.P.C. 1973.” (Emphasis supplied) 12. Learned Special Public Prosecutor appearing for the State in contra, has contended that the prosecution applied for getting the FIR 9 No. 33/06 of police station Nihalganj, Dholpur exhibited in the court of Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur but the court did not permit the prosecution to exhibit this FIR. Neither the contents of the FIR No. 33/06 were allowed to be proved nor any finding of acquittal or conviction with regard to the articles stolen from the basement of City Palace, Dholpur has been given by the learned Additional Sessions Judge, hence, it cannot be said that the petitioner is being tried again for the same offence in FIR No. 33/06 of police station Nihalganj, Dholpur. 13. Learned Special Public Prosecutor Mr. A.K. Bajpai has further contended that FIRs of about 14 police stations have been exhibited by the prosecution during trial before Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur but impugned FIR No. 33/06 of police station Nihalganj, Dholpur was not allowed to be exhibited by the court, reason being that this FIR was registered in the year 2006 whereas, the trial of FIR No. 146/03 Vidyadhar Nagar, Jaipur had already begun in the year 2003-04. Learned Special Public Prosecutor further submits that the subject matter of FIR No. 33/06 cannot be said to be the subject matter of FIR No. 146/03 of police station Vidhyadhar Nagar, Jaipur, as no finding of acquittal or conviction has been given by learned trial court with regard to these articles and thus, both the petitions are liable to be dismissed. 14. A bird's eye view of some of the decisions of Hon'ble Apex Court and High Courts throwing light on this issue and heavily relied upon by the learned counsel for the petitioner needs to be taken. 10 15. In the case of Ganesh Sahu vs. Emperor, reported in 1923 Criminal Law Journal Reports, Vol. XXIV, pg. 707, the Calcutta High Court held that:- “The petitioner in this case has been convicted under section 411, Indian Penal Code, on the charge of having been in dishonest possession of stolen property on the 7th December 1921. It appears that on that date several articles of property were found in the room occupied by the petitioner. In respect of some of them he was prosecuted and after being convicted under section 411, Indian Penal Code, by the Trying Magistrate he was acquitted on appeal. He has now been tried and convicted in respect of other properties found in his possession on the same date. There was evidence that the different articles which were the subject of the charges in the two trials were stolen from different persons, but there is no evidence that they were received at different times.” (Emphasis supplied) 16. In the case of Jalal vs. Emperor, reported in AIR 1932 Lahore 615(1), it has been held that:- “Where there is no proof whatsoever that the accused had received the proceeds of five different thefts on five different occasions and on the other hand it was more likely that the thief or thieves may have passed on the stolen property to the accused at one and the same time, the accused cannot be convicted under five separate chalans for the offence of being in possession of stolen property under Section 411.” (Emphasis supplied) 17. In the case of State of M.P. vs. Bahadursingh & ors., reported in 1984 Criminal Law Journal, pg. 1065, Madhya Pradesh High Court held as under:- 11 “Therefore, it is clear that offence in question of which cognizance has been taken in two different Courts, is the same, inasmuch as, it relates to the same transaction viz., theft of the particular truck during the particular relevant period and its recovery later, from some third person as the stolen property. Both the cases are common, having arisen out of the same occurrence or same transaction relating to the truck in question, based on nearly similar sets of facts and circumstances. Mention of the additional offence under S.411 IPC in the charge-sheet filed in one Court does not change the nature of the offences under the respective charge-sheets of both the Courts, since commission of the offence under S.411, IPC is only consequential and in relation to the principal offence of theft.” (Emphasis supplied) 18. In the case of Amritlal Ratilal Mehta & Anr. vs. State of Gujarat, reported in AIR 1980 S.C. 301, the Apex Court held as under:- “that the question whether an earlier finding which had attained finality is binding in the subsequent proceedings in the case would depend on the question as to what the allegations were, what facts were required to be proved and what findings were arrived at. The question thus, is not whether the ingredients of the two offences are the same but whether the facts alleged and required to be proved in the particular case to establish the offences are basically the same” (Emphasis supplied) 19. Learned Special Public Prosecutor Mr. A.K. Bajpai in contra has relied upon the following judgments;- i) AIR 2006 Supreme Court 915 ii)AIR 2002 Supreme Court 441 iii)AIR 1999 Supreme Court 1765 iv) AIR 1957 Allahabad 755 12 20. Having ruminated, it is respectfully observed that the judgments cited by the learned counsel for the petitioner do not apply in the case on hand as they are related to two trials of offences, which are basically of the same nature. 21. Now adverting to the crucial issue as to whether the FIR No. 33/06 registered in police station Nihalganj, Dholpur deserves to be quashed in the light of the judgment dated 20.11.2008 rendered by Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur for the same offences. 22. Sub-section (1) of Section 300 of Cr.P.C. is inconformity with the provisions of Article 20(2) of the Constitution which provides that:- “No person shall be prosecuted and punished for the same offence more than once.” (Emphasis supplied) 23. Sub-section (1) of Section 300 of Cr.P.C. envisages as under:- “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 once 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.” (Emphasis supplied) 24. This section enacts the rule of autrefois acquit and autrefois convict 13 applicable to criminal trials. The rule is that so long as order of acquittal or conviction at a trial held by a court of competent jurisdiction of a person charged committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried of any other offence arising there from. The basic principle is embodied in the maxim nemo debet bis puniri pro uno delicto that is is to say, that no one ought to be punished twice for the offence or for the same cause. Sub- section (1) of Section 300 of Cr.P.C. lays down the rule whereas Sub-section (2) to (5) are the exceptions thereto. Sub-section 2 of Section 300 of Cr.P.C. reads thus:- “(2)A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been against him at the former trial under sub-section (1) of section 220. (Emphasis supplied) 25. The true test by which the question whether such a plea is a sufficient bar in any particular case is whether the evidence necessary to support the second indictment would have been sufficient to procure illegal conviction upon the first. A trial is said to be upon the same facts if the evidence in the first case would have supported a conviction for the offences charged in the second case. It is a settled proposition of law that generally no accused shall be vexed with more than one trial for the offences arising out of the same set of facts. 26. Though the different offences arising out of the different acts may form the subject matter of separate charges in one trial. That does not mean that the facts or acts are 14 identical. The combined effect of Sections 300 (1) and 220(1) is to lay down that generally no accused shall be vexed with more than one trial for offences arising out of same set of facts. Sub-section (2) of Section 300 of Cr.P.C. would enable the court to hold a second trial in the case of distinct offence. If the ingredients of the two offences are not the same, though the same facts might have been relied upon in both the cases, there would be no question of the principle of 'autrefois acquit and autrefois convict' being applicable. 27. In the case of State vs. R.V. Thimma Nagpudra, reported in AIR 1961 Mysore 69, 70, it was held that:- “Where the accused was charge-sheeted in consequence of the seizure of various articles from his house, though different articles were involved in different cases, the Magistrate gave accused the benefit of doubt in regard to the identity of the articles alleged to have been stolen and acquitted the accused in one of those cases; it was held that it would not bar the trial in other cases.” (Emphasis supplied) 28. Applying the above test in the facts of the instant case, it is noticed that 41 boxes were recovered and seized from the Ware-house of the accused Pradeep Malhotra which contained in all 506 articles. Out of these 506 articles, 485 articles were found to be artifacts. These 485 artifacts/articles contained those 11 artifacts/articles also which are alleged to have been stolen from the basement of the City Palace, Dholpur for which FIR No. 33/06 was registered by police. These 11 articles are as under:- 15 1)A painting of His Highness in Royal Attire and one painting of His Highness and Her Highness in sitting posture that too in Royal Attire fixed in wooden frame. 2)A painting of black dog in wooden frame. 3)Two sceneries of trees and birds. 4)Two small round pot (Lotas) made of metal. 5)One container for beetle-leaf (Paandan) made of metal. 6)Tray of glittering metal. 7)One pig of metal. 8)Two Jars made of metal. 9)A pair of peacock made of metal. 10)Two owls and a bird made of metal. 11)A carved cascade made of stone. 29. It is interesting to note that these articles were put to trial but the charges framed against the petitioner did not contain the contents of these articles. Albeit, these articles have been exhibited as Ex/A. 1263 to 1269 and Ex/A. 1448 to 1450 but the prosecution was not allowed to exhibit this FIR No. 33/06 by the court. 30. Having reflected over the submissions made at the bar and carefully scanned the relevant material including the judgment rendered by learned Additional Sessions Judge (Fast Track), No.1, it is noticed that at page 430 and 431 of the judgment there is a mention of these 11 articles but the learned Additional Sessions Judge is found to have observed that neither it was proved that these 11 articles were stolen by some person nor it was proved that they were the stolen articles and nor it was proved that the petitioner received them knowing or having reason to believe that the same were stolen articles. The basis of this 16 observation of the learned Additional Sessions Judge was that no FIR with regard to the theft of these articles was