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Judgment
This criminal petition is filed, under Section 482 of the Cr.PC, seeking quashment of the order, dated 6.4.2017, in GR Case No. 1184/2006
(arising out of Jorhat PS Case No. 596/2006), passed by the learned Judicial Magistrate 1st Class, Jorhat, taking cognizance of offence under
Sections 10/13 of the Unlawful Activities (Prevention) Act, 1967 (as amendment upto date) against the present accused-petitioner.
I have heard Mr. M. A. Islam, learned counsel for the accused-petitoner as well as Mr. N.J. Dutta, learned counsel for the state respondents.
The fact of the case is that, on 11.11.2006, Sub-Inspector of Jorhat Police Station, Sri Niranjan Baruah, lodged an FIR in the Jorhat Police
Station alleging, inter-alia, that on that day, at about 4:00 pm, while he was conducting a counter insurgency operation alongwith his police staff in
Napam and other nearby villages under Jorhat Police Station, apprehended the accused-petitioner and recovered one factory made 9 mm pistol
with 13 rounds live ammunitions, one Nokia Mobile handset with 3 SIM cards and some incriminating documents relating to banned outfit United
Liberation Front of Assam (ULFA).
On the basis of the FIR, Jorhat Police Station registered a case, being No. 596/2006, under Sections 25(1-B)/23 of the Arms Act read with
Sections 10/13 of the Unlawful Activities (Prevention) Act (hereinafter referred to as ""UA (P) Act"".
The petitioner was arrested on 12.11.2006 and taken to the police custody.
After completion of the investigation, a charge-sheet was laid against the accusedpetitioner, under Sections 25(1-B)/27 of the Arms Act, vide
Charge-sheet No. 219/2013, dated 18.5.2013.
After exhausting all required legal formalities, the learned trial court took cognizance of the offences and framed charge against the accused-
petitioner under Sections 25(1-B)/27 of the Arms Act, vide order, dated 30.9.2015 to which the accused-petitioner pleaded not guilty. Therefore,
the trial commenced.
During trial, the learned trial court examined 6 (six) witnesses for the prosecution. The defence examined none.
Vide judgment and order, dated 13.12.2016, passed in the said GR Case No. 1184/2006 arising out of the aforesaid Jorhat PS Case No.
596/2006, acquitted the accusedpetitioner on benefit of doubt. Thereafter, after about 10 years, respondent authorities, arbitrarily and
mechanically granted the prosecution sanction for prosecuting the petitioner for offences under Sections 10/13 of the UA(P) Act, in connection
with the same Jorhat PS Case No. 596/2006, vide letter No. HMC.110/2012/165, dated 5.9.2016, and on receipt of the said prosecution
sanction, the investigating police officer, again submitted another chargesheet, being No. 1078/2016, dated 31.12.2016 in the same police case
under Sections 10/13 of the UA(P) Act.
The learned trial court took cognizance of offences under Sections 10/13 of the UA(P) Act, vide order dated 6.42017, and issued summon to
the accused-petitioner for his appearance.
The contention of the petitioner is that, as the accused-petitioner was acquitted in the case of the charge in the aforesaid police case, second
trial of the accused-petitioner on the same facts is impermissible under Section 300 of the Cr.PC. It is also contended by the petitioner that, as per
the legislative intent of Section 300 of the Cr.PC, once a person is convicted or acquitted by the court of competent jurisdiction and so long as the
conviction or the acquittal order remains in force, the person shall not be tried again for the same offence or for a different offence based on the
same facts which means and implies that a second trial cannot be even for a different offence if based on the same facts in the earlier trial.
According to the petitioner in the present case, he was charged with the offence of carrying arms and ammunitions as and ULFA extremist and he
was acquitted of the charge by the court of competent jurisdiction, and therefore, the second charge-sheet by the investigating authority on the
same, facts and evidence is barred.
Learned counsel for the petitioner, during the course of argument, has referred to the decision of the Hon''ble High Court of Patna in the case
of Gauri Shanhar Rai and Others Vs Emperor , reported in AIR 1947 Patna 290, particularly paragraph-11, which is quoted below :
Under the circumstances, I am clearly of opinion that it is against the principles of administration of (criminal) justice to allow the contemplated
trial based upon the belated complaint of the Subdivisional Magistrate to take place to the extreme harassment of the petitioners. It would in fact
amount to allowing an indulgence to the prosecution to have the luxury of prosecuting, whatever be the result, the accused persons. I find it
remarkable that the learned District Magistrate though served with notice of this motion has not thought it his worth while to get the Crown
represented in order to oppose the motion. This also throws a flood of light upon the circumstances of the case. In conclusion, I would quash the
proceedings in the Court below arising out of the complaint of the Sub-divisional Magistrate referred to above dated 22.11.1945. The rule is made
absolute.
According to him, taking the principle laid down in the aforesaid decision, the proceeding should be quashed. On perusal of the said decision, it
appears to this court that the facts on which the aforesaid decision was rendered by the Hon''ble High Court of Patna, is not same with the instant
case, and therefore, the said decision is not applicable.
Learned counsel for the petitioner has also referred the decision of the Hon''ble High Court of Culcutta in the case Bejoy Dutta and Others Vs
The King and Another reported in AIR Cal 425 : (1950) 1 ILR (Cal) 502, particularly paragraph 6, which reads as follows :
I would further point out that in Section 403, Sub-section (2) there is an important word used namely the word ""distinct"". It is said that a person
may be subsequently tried for any distinct offence for which a separate charge might have been made against him at the former trial under Section
235 (1). It does not say that he may be afterwards tried for any other offence for which a separate charge might have been made against him at the
former trial under Section 235 (1). The words ""distinct offence"" are specifically used. Now, Section 235, Sub-section (1) says that if several
offences are committed in the course of the same transaction, a person may be tried at one trial for all such offences. Now, these offences may be
distinct offences or they may be offences which are interdependent. An example would make the position clear. A person may enter a house &
commit theft, rape & assault therein. These would be distinct offences. The offence of rape would not be dependent in any way on the offence of
theft, but in the present case the offences are not distinct. The offences charged against the petnrs. could not have been committed if that petnrs.
had not committed criminal trespass. The case against them was that they assaulted the opposite party in her kitchen. This particular assault could
not have been committed except by the petnrs. trespassing into the kitchen of the opposite party. The offence of trespass is, therefore, not distinct
from the offence of assault. Both offences are interdependent. Trespass was committed in order to assault on the opposite party. That being so,
Section 403, Sub-section (2), Cr. P. C. can have no application. This was the view taken by the Rangoon H. C. in the case of Yeok Kuk v.
Emperor, 6 Rang. 386 at p. 389 : (A. I. R. (15) 1928 Rang. 252 : 29 Cr. L. J. 930).
Referring to the aforesaid decision in Bejoy Dutta (supra), learned counsel for the petitioner has submitted that the accused-petitioner could have
tried in the earlier trial in the same case although the offence alleged is distinct but the facts constituting the offences are same. This decision is, in
fact, different from the case at hand in the sense that the distinct offence under Sections 10/13 of the UA(P) Act could not be tried in the first trial
as sanction was not received at that point of time as well as the fact that charge-sheet was not filed against the accused-petitioner under Sections
10/13 of the UA(P) Act rather charge-sheet was filed under Sections 25(1-B)/27 of the Arms Act. That being so, this decision does not appear to
be applicable.
Learned counsel for the petitioner has also referred to the decision of the Hon''ble High Court of Andhra Pradesh in the case of Janapati
Krishna Singarappa Vs The State of Andhra Pradesh, reported in (2005) 3 ALT (Cri) 244, particularly paragraph-15 thereof, which read as
follows:
A careful reading of the material available on record would go to show that virtually on the same set of facts and basing on the
same evidence the trial in S.C. No. 51 of 1997 was conducted which had resulted in an acquittal. The only additional factor in the
present trial appears to be that the dying declaration-Ex.P-8 was proved by examining PW-9. On the strength of this additional
factor, the learned Judge in the considered opinion of this Court is not justified in recording conviction u/s 306 IPC especially, in the
light of the fact that the charges in relation to both the offences had been founded on the same set of facts. At any rate, it cannot be
said that there was an offence of abetment to commit suicide within the meaning of Section 107 IPC. Hence, viewed from any angle,
the findings recorded by the learned Judge cannot be sustained and accordingly, the findings are hereby set aside.
The fact on which the decision was rendered by the Hon''ble High Court of Andhra Pradesh is completely different with the fact of
the instant case and there was no question of prosecution sanction involved in the case decided in the aforesaid decision.
Further, learned counsel for the petitioner has referred to the decision, rendered by the Hon''ble High Court of Jharkhand in the case of Dinesh
Kumar Singh @ Dinesh Singh, Mangra Uraon and Sanjay Toppo Vs State of Jharkhand and Others, reported in (2010) CriLJ 2009, is also not
applicable in the instant case in view of the fact that the provisions of Section 300 of the Cr.PC is not applicable in the instant case as the petitioner
was not tried in the earlier trial for the offences under Sections 10/13 of the UA(P) Act.
On the other hand, learned Additional Public Prosecutor for the state respondent, Mr. N.J. Dutta, has referred to the decision rendered by the
Hon''ble Supreme Court in the case of State of Bombay Vs. S.L. Apte & Anr., reported in 1961 AIR 578, particularly paragraph- 9 thereof,
which reads as follows :
9........If, therefore, the offences were distinct there is no question of the rule as to double-jeopardy as embodied in Art. 20(2) of the
Constitution being applicable. The next point to be considered is as regards the scope of s. 26 of the General Clauses Act. Though s.
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 TT.S. I: 71 Law. Ed.
505.
The fact leading to the decision in S.L. Apte (supra) was that the accused-petitioners were convicted by the learned trial court under Section
409 of the IPC and Section 107 of the Indian Insurance Act. On appeal, the learned Sessions Judge, upheld the conviction and sentence under
Section 409 of the IPC and set aside the conviction and sentence under Section 107 of the Indian Insurance Act, as there was no prosecution
sanction for prosecuting the accused-petitioners under Section 107 of the Indian Insurance Act.
Learned Additional Public Prosecutor has submitted that in the instant case, proceeding is also similar with that of the above referred case.
According to him, in the first trial of the accused-petitioner, charge-sheet was filed under Section 25(1-B)/27 of the Arms Act and was tried for
that offence. He has also submitted that for offence under Sections 10/13 of the UA(P) Act, sanction is required under Section 45 of UA(P) Act.
Pointing out to the statements, made in the second charge-sheet, it is submitted by the learned Additional Public Prosecutor that, prosecution
sanction was granted by the concerned authority on 18.8.2016. Prosecution sanction was accorded to prosecute under Sections 10/13 of the
UA(P) Act, and thereafter only, the charge-sheet, on the basis of which the present prosecution was launched against the accused petitioner was
laid.
Now, the question is, whether the second trial, amounts to try the accused twice for the same offence and whether it will attract the provisions
of Section 300 of the Cr.PC.
There is no dispute at the bar that the first charge-sheet was filed for offence under Sections 25(1-B)/27 of the Arms Act and the second
charge-sheet was laid under Sections 10/13 of the UA(P) Act, meaning thereby, the offences alleged in the first and second chargesheet are in
respect of distinct offences although there is no dispute at the bar that the facts are to a great extent same. But, from the facts of the case, it can
easily be ascertained that the offences of carrying arms and other offences of being member of an unlawful association are clearly distinguishable.
The facts of the allegation does not constitute, as contended by the learned counsel for the petitioner, the same offence.
That being so, the ratio of the law laid down by the Hon''ble Supreme Court in S.L. Apte & Anr (supra), appears to be applicable in the
instant case.
Further, as submitted by the learned counsel for the petitioner, it is a fact that there was an inordinate delay of several years in filing the second
charge-sheet but the fault cannot be assigned to the investigating police officer, as according to him, the authority to grant prosecution sanction is
with another authority and such authority accorded the prosecution sanction in the year 2018 only. It is not a case, on facts, that the accusation
under Sections 10/13 of the UA(P) Act was not there in the First Information Report and it has been cooked up in a later point of time, rather, the
materials placed before this court makes it abundantly clear that the accusation was already existed in the FIR. But, the prosecution sanction was
accorded at a belated stage and as only after receipt of the prosecution sanction for prosecuting under Section 10/13 of the UA(P) Act, the
second charge-sheet, under the said provisions of the UA(P) Act, was laid. The delay in laying the second charge-sheet can be defence in the trial.
Therefore, on an overall view of the matter at hand, this court is of the considered opinion that acquittal of the accused-petitioner in the first
trial on the basis of the first charge-sheet under Sections 25(1-B)/27 of the Arms Act, does not operate as a bar under Section 300 of the Cr.PC
to try to offences under the second charge-sheet.
That being so, this court is not inclined to invoke its inherent power under Section 482 of the Cr.PC to quash the proceeding in GR Case No.
1184/2006, pending before the learned Judicial Magistrate 1st Class, Jorhat on the basis of the second charge-sheet laid by the Jorhat Police
Station in Jorhat PS Case No. 596/2006.
Accordingly, this petition stands dismissed.