IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 Crl.MC.No. 1488 of 2005() ------------------------- CC.338/2002 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... PETITIONER(S): ACCUSED: ----------------------------------------- KASINATHAN, S/O.CHEKKOTTY, POLICE CONSTABLE, MOROTH HOUSE, KARUVISSERY AMSOM DESOM, KUNNOTH HOUSE, BALUSSERY. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. THE CIRCLE INSPECTOR, EXCISE RANGE, KOZHIKODE. 2. THE SUB INSPECTOR OF POLICE, CHEVAYUR POLICE STATION. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED FOR R1 TO R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/09/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V. GIRI, J. ------------------------------- CRMC.NO. 1488/ 2005 --------------------------------- Dated this the 2nd day of September, 2008. JUDGMENT The petitioner, a Police Constable was prosecuted for the offence under section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules on the allegation that he was found in possession of 720 bottles of 180 ml of Indian made Foreign Liquor in a shed immediately adjacent to his place of residence owned by him. The Additional District and Sessions Court Fast Track (Adhoc II) Kozhikode by Annexure-III judgment found the petitioner guilty of the offence under section 55(a) of the Abkari Act and convicted and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1 lakh. It is submitted by the learned counsel for the petitioner that in appeal before this court the conviction was altered into one under section 53 of the Abkari Act. Copy of the said judgment has not been placed on record but I have proceeded on the premise that the submission is correct. 2. At the same time the police registered a case against `CRMC.1488 /2005 2 the petitioner for the offences under section 420,468,476,484 and 18 read with section 34 of the IPC, on the allegation that the petitioner was found in possession of 162 numbers of fake sticker labels as if they were supplied by the Kerala State Beverage Corporation. These stickers were also seized along with the bottles containing Indian made Foreign liquor. The police conducted an investigation and Annexure-II final report was filed before the court. The learned Magistrate took cognizance of the same and the petitioner is sought to be prosecuted for the offences under section 464,476,484,168 and 420 read with section 34 of the IPC. It is in these circumstances, the petitioner has approached this court seeking to quash the proceedings in CC.No.338/2002. 3. I heard learned counsel for the petitioner Mr.T.G.Rajendran and the learned Public Prosecutor Mr.Puzhakkara Muhammed. 4. The stand taken by the petitioner is essentially on the premise that the prosecution of the petitioner is in violation of section 300 of the Cr.P.C. The petitioner was earlier convicted for the offence under section 55(a) of the Abkari Act. Though `CRMC.1488 /2005 3 the conviction was only for possession of Indian made foreign liquor, the alleged possession of fake stickers could have also formed the subject matter of a charge in the earlier prosecution launched against the petitioner and consequently the bar under section 300 of the Cr.P.C. would apply to the present case. 5. Section 300 of the Cr.P.C. provides that a person once convicted or acquitted should not be tried again for the same offence. The first part of section 300 is an echo of Article 20(2) of the Constitution of India which interdicts the prosecution and punishment of a person for the same offence more than once. 6. It is the second limb of section 300 which comes up for application from time to time. It interdicts a person being tried for an offence, on the same set of facts, for which the person was earlier tried and convicted or acquitted as the case may be if in the earlier trial a different charge from the one made against him might have been made under sub section (1) of section 221 on the same set of facts, on the basis of which subsequent prosecution was launched. The embargo also applies in cases where the offences for which the person is subsequently prosecuted could have been the basis of conviction of the accused `CRMC.1488 /2005 4 in the earlier trial under section 221(2) of the Cr.P.C. 7. The application of the second limb of section 301 of the Cr.P.C. therefore squarely attracts section 221 of the Cr.P.C. The same is extracted hereunder: “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 sub section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” Illustration (a) A is accused of an act which may amount to theft, or receiving stolen `CRMC.1488 /2005 5 property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property or criminal breach of trust or cheating.” 8. Illustration (a) to section 221 true to its definition, illustrates the principle underlying the section. An act might constitute theft, it may constitute receipt of stolen property or it may constitute criminal breach of trust; it may constitute cheating. The accused could legitimately be prosecuted for having committed theft. He could also be prosecuted for any one of the other aforementioned offences. If he is prosecuted on a plurality of charges, all those would be tried at a time. 9. Proceeding further logically, as mentioned in illustration (b), if A is only charged with theft, but in the course of the trial, it appears that he committed criminal breach of trust, he could be convicted for criminal breach of trust, though he was not charged with such offence. 10. Section 221 of the Code by itself does not create an `CRMC.1488 /2005 6 embargo on a person being successfully charged with different offences which could be the subject matter of different trials, but on the same set of facts. An embargo is spelt out by section 300 of the Cr.P.C. in as much as the second limb of section 300 of the Cr.P.C makes it clear that a person shall not 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. In the context of section 221 and particularly with reference to illustration (a) thereof, it can be seen that if A is accused of an act which may amount to theft or criminal breach of trust or cheating, he may be charged with having committed theft or any of the other offences. But where he has been tried on a particular set of facts for theft, since the same set of facts would have legitimately enabled him to be charged for the offence of receiving stolen property or criminal breach of trust or cheating as the case may be, the second limb of section 300 puts an embargo on him being tried for any one of the offences, if there has already been a trial followed by an acquittal or conviction. `CRMC.1488 /2005 7 What therefore brings about an embargo is a person having been tried on one set of facts and if he is either convicted or acquitted, he shall not thereafter be tried on the same set of facts, which could have led to a charge that could legitimately be put against him under section 221 (1) or for which he could have been convicted under section 221(2) . 11. The crucial aspect for application of section 300 read with section 221 (1) and (2) is a commonality in the set of facts in the earlier trial and the subsequent trial which the accused is proposed to be subjected to. 12. Learned counsel for the petitioner relied on the following judgments: (1) Janakiramaraju vs. Emperor (AIR 1934 Madras 311). (2) Natarajan vs. State (1991 Crl.L.J.2329). (3) State of UP vs. Prabhat Kumar Trivedi (AIR 1966 Allahabad 349). 13. Janakiramaraju vs. Emperor 1934 Madras 311 construed section 403 of the Cr.P.C. 1898 analogous to section 300 of the Cr.P.C. 1973 . That was a case in which the petitioner and 19 others were charged with dacoity and certain other `CRMC.1488 /2005 8 offences. The petitioner was charged on the second count with dacoity using a deadly weapon and attempting to cause the death of one person punishable under section 395 read with section 397 of the IPC. The question which arose before the court was whether the court could have convicted the accused for the offence punishable under section 395 read with section 397 of the IPC. The court noted that section 397 is a combination of several offences, viz. under sections 392,395,323,324,325,326 and section 307 of the IPC and a verdict of “not guilty” to a charge under that section covers every offence which was stated in it or which could have been charged therein on the same set of facts. It was found as a fact by the court that the accused was on trial, not only under section 392 but also under section 307 of the IPC and that one or other or both could be proved against him. It was found on facts by the court that the Jury had found the petitioner not guilty of section 397 of the IPC. The conviction on the first count was therefore not possible. 14. The reason given by the court not only does not support the case of the accused but there is one factor that clearly stands in the way of accepting the case of the accused in `CRMC.1488 /2005 9 this regard. The court was significantly considering a case of commonality in the set of facts. 15. Natarajan vs. State (1991 Crl.L.J.2329) relied on by the petitioner really does not advance his case. The accused was prosecuted for an offence under section 457. He was acquitted. Subsequent trial on the same set of facts for an offence under section 404 and 408 of the Penal Code was clearly hit by section 300 of the Cr.P.C. Even during the earlier prosecution, the court could have by a legitimate application of the second limb of section 221(1) of the Cr.P.C, convicted the accused for the offence under sections 403 or 408 of the Penal Code. That was not done. A subsequent trial was therefore clearly hit by section 300 of the Cr.P.C. 16. The next decision relied on by the learned counsel for the petitioner, one rendered by the Allahabad High Court is State of UP vs. Prabhat Kumar Trivedi AIR 1966 Allahabad 349. The Allahabad High Court, in law, held with reference to section 25 of the Arms Act and section 411 of the IPC, that bar of a second trial in terms of section 403 of the Cr.P.C.1898 would apply only in the following circumstances:- (1) where the second `CRMC.1488 /2005 10 trial is for the same offence for which in an earlier trial a person has either been convicted or acquitted. (2) where the second trial is on the same facts for any other offence for which a different charge from the one made against the accused person might have been made under section 236 or for which he might have been convicted under section 237 (corresponding to section 221 (2) of the Cr.P.C.) Trial of a person for an offence distinct from the offence for which he was earlier tried on a different set of facts would not be brought within the embargo of section 300 of the Cr.P.C. whether the earlier trial had ended in a conviction or acquittal was irrelevant in the context of section 300 of the Cr.P.C. On facts the High Court had sustained the order of acquittal passed by the trial court in the said case. 17. Learned Public Prosecutor on the other hand referred to the judgment of the Supreme Court in A.A.Mulla and others State of Maharashtra and another 1996 (11) SCC 606. The Supreme Court held that the incidents of section 403 Cr.P.C. and Article 20(2) of the Constitution would be on a second trial for the same offence. In order to ascertain whether the two offences are the same , it is necessary to analyse the ingredients `CRMC.1488 /2005 11 of the two offences and not the allegations made in the two complaints. Referring to the provisions of section 111 read with section 135 of the Customs Act vis-a-vis the allegation relating to the offence under the Gold Control Act, the Supreme Court held that the ingredients of the offences are different. More importantly “the factual foundation of the first trial and such foundation for the second trial is also not identical. “ 18. Now coming to the factual matrix involved in the present case. The petitioner was tried and convicted by the Sessions Court for the offence under section 55(a) of the Abkari Act for having been found in possession of 720 bottles of 180 ml Indian made Foreign Liquor. No doubt in the course of the search 162 fake stickers were also detected and seized. Learned counsel for the petitioner would invoke section 300 of the Cr.P.C. on the premise that manufacture of fake stickers would also amount to an offence under the Abakri Act and thehrefore this is one of the cases where the second limb of section 300 of the Cr.P.C. should apply. It is admitted that the second prosecution is for the offences under section 468,476,484,168 and 421 read with section 34 of the IPC and the `CRMC.1488 /2005 12 allegation is that 162 fake stickers were detected from the premises in the possession of the petitioner. The allegation therefore constitutes an offence of forgery and cheating and since the person involved is a public servant, section 168 of the IPC has also been brought in. Admittedly, these allegations did not form the subject matter of the earlier trial. The question is whether this could have been taken note of in framing charges against the accused in the earlier trial. I am afraid I am unable to accept the submission of the learned counsel for the petitioner in this regard. The petitioner was found in possession of Indian made foreign liquor. The same constituted an offence under the Abkari Act. Possession of fake stickers which are alleged to be the subject matter of forgery could not have been the subject matter of an allegation or charge in the earlier trial. There was no question of fake stickers forming the ingredients of an offence under section 55 (a) of the Abkari Act. But for the circumstance that the illicit liquor and the fake stickers were both detected and seized from the same premises and the premises were owned by the same accused, there was no commonality in the transaction forming the subject matter of the earlier trial and the present `CRMC.1488 /2005 13 one. The manufacture of fake stickers involves an act of forgery and cheating. It cannot be considered as one among a series of acts which altogether would make up an offence under section 55 (a) of the Abkari Act. In other words, the act of possession of illicit liquor which makes up an offence under section 55(a) is distinct and has no relevance whatsoever with the act of manufacture of fake stickers with an intention to cause wrongful loss to the Kerala State Beverages Corporation or make a wrongful gain to the accused. In these circumstances the second limb of section 221(1) of the Cr.PC obviously has no application. In other words, while being prosecuted for the offence under section 55(a) of the Abkari Act for being in possession of illicit liquor the court could not have convicted the petitioner for an offence of forgery in relation to fake stickers or in relation to the same act punishable under section 420 of the IPC. Consequently, neither section 221(1) nor section 221(2) applies. The second limb of section 300 of the Cr.P.C. also has no application. 19. The petitioner was earlier prosecuted and convicted for the offence under the Abkari Act. The present prosecution is for the offence under the IPC. The police had no jurisdiction to `CRMC.1488 /2005 14 prosecute the petitioner for an offence under the Abkari Act. An Abkari Inspector as defined under the Abkari Act would be in competent to prosecute the petitioner for the offence under the IPC. There had to be a different trial and different prosecution. This is yet another reason to conclude that neither section 221 nor section 300 of the Cr.P.C. would have any application in the present case. For all these reasons, I am of the view that the Crl.M.C. is bereft of merit and accordingly the same is dismissed. V. GIRI, JUDGE. Pmn/ `CRMC.1488 /2005 15 V. GIRI, JUDGE. Pmn/