1. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate, assisted by Sri Rakesh Chandra Upadhyay, Advocate, for Revisionist and perused the record. Though learned A.G.A. was present and was requested to assist the Court, but he said that he has no file and failed to assist the Court. This is really unfortunate that this Court could not get any assistant from learned A.G.A. However, having no other option, I proceed to decide this matter after hearing counsel for Revisionist and after perusal of record by myself.
2. This Criminal Revision under Section 397/401 Cr.P.C. has come up at the instance of accused-Revisionist, who has been charged by Sessions Judge, Sonbhadra under Section 120B I.P.C. in Sessions Trial No. 56 of 2000 vide order dated 19.02.2001.
3. Brief Facts, giving rise to this revision, may be stated as under.
4. A First Information Report being Case Crime No. 44 of 2000 under Sections 395, 397 I.P.C. was lodged at Police Station Shakti Nagar, District Sonbhadra by Ashish Kumar, an official of Allahabad Bank, Branch Shakti Nagar alleging that on 04.02.2000, seventy lacs rupees which had come from Robertsganj Branch, were kept in strong room by Branch Manager, Sri Suresh Kumar Singala. Thereafter, he went to N.C.L. Headquarter, Singrauli. Branch Manager handed over key of strong room and safe to Informant and since then Informant was in charge of Bank. At around 4.00 PM, when all the officials and employees of Bank, except Branch Manager and one Sanjay Kumar, were present, Informant and Umesh Kumar, In-charge Head Cashier were closing strong room, after keeping cash therein, and when they had locked one key and going to lock second key, about 6-7 miscreants entered the Bank, and threatened all officials and public persons present in the Bank, showing countrymade pistols and revolvers. They took Sri Basu to stationary room and brought one Lal Ji Upadhyay to the door of strong room on threat of countrymade pistol. They compelled Informant and Sri Umesh Kumar to open the door of strong room. When the miscreant threatened to kill Sri Upadhyay, having no option, Informant and Umesh Kumar opened door of strong room. Miscreants entered strong room, took out cash from safe and collected cash in two jute bags which they had brought with them after getting safe opened. Rest of cash was kept by them in a cloth of Bank. They brought officials and staff of Bank and Post Office to strong room along with 3-4 public persons who were present in the Bank. They took out bags containing cash and moved away from strong room along with Informant at gun point and they closed door of strong room. They ran away giving threats to Informant. Subsequently when checked, it was found that miscreants had taken away rupees 82,85,000/- of the following denominations:
(i) 31 bundles of Rupees 500/-,
(ii) 452 bundles of Rupees 100/-, and,
(iii) 453 bundles of Rupees 50/-.
5. The report was lodged against unknown 6-7 persons. Police investigated the matter and submitted charge-sheet under Sections 395, 397, 412 and 120B I.P.C. against Arun Kumar Upadhyay, Satish Chand Mishra, Devendra Kumar Singh, Rajesh Kumar Mishra, Dinesh Kumar and the Revisionist, Suresh Kumar Singala. List of witnesses submitted by Investigating Officer consists of 17 witnesses examined under Section 161 Cr.P.C. The witnesses from Sl.No. 1 to 8 were witnesses of fact and other 9 witnesses were of formal nature. Name of Revisionist did not come into picture for implicating him in criminal case. However, statement of one Lallan Prasad Pandey recorded under Section 161 Cr.P.C. was relied by Investigating Officer in which he stated that while he had gone to take medicines on 11.01.2000 in front of Bank, one Rajesh Kumar Mishra and Revisionist were talking together. The witness said that he overhead Branch Manager and Revisionist that we people first complete work at Vindhyavasini Bank, Anpara, thereafter the work of Manager's bank would be told about.
6. At that time witness did not pay any heed to the said overheard statement but when he read in newspaper subsequently that there was a loot of two lacs rupees in Vindhyavasini Bank, Anpara and thereafter occurred a dacoity in Allahabad Bank, it became clear to him that Rajesh Kumar Mishra and Bank Manager both had conspired and planned aforesaid offences.
7. Sessions Judge, Sonbhadra in its order dated 19.02.2001 before framing charge against Revisionist under Section 120B I.P.C. and others under Sections 395, 397, 412 I.P.C., considered submissions advanced by District Government Counsel (Criminal) as well as Revisionist's Counsel and besides the fact that there was a witness of fact, i.e., conspiracy, he has further found certain circumstances leading to a prima facie inference that Revisionist was involved in conspiracy of Bank dacoity. The circumstances, which have been considered by Court below justifying framing of charge under Section 120B I.P.C. against Revisionist are as under:
Circumstances No.-1 : Accused Suresh Kumar Singla was the Branch Manager of the bank and he alone had knowledge about the cash of Rs. 70, Lacs brought from Robertsganj.
Circumstances No.-2 : Two security guards accompanied the cash but the accused allowed them to leave the bank before the strong room was locked.
Circumstances No.-3 : Two constables used to be posted at the bank till 2 p.m. for the security of the bank but both the constables were not detained by accused till the cash brought from Robertsganj was kept and the strong room was locked.
Circumstances No.-4 : The dacoits entered in the bank premises 15 minutes after the accused left the bank.
Circumstances No.-5 : It was not at all necessary for the accused to leave the bank without ensuring safety of the cash brought from Robertsganj because meeting was not convened by the authorities of the bank but it was a routine meeting of the N.C.L.
Circumstances No.-6 : The main gate of the bank was not closed from inside before opening the strong room where the safe was kept.
Circumstances No.-7 : Lallan has given direct evidence of conspiracy by stating that on 11.1.2000 accused Suresh Kumar Singala and Rajesh Kumar Mishra, one of the co-accused, were heard talking that on that date they should do the work of Vindhyavasini Bank, Anpara thereafter he (accused) would tell them the date of work in his bank and the Vindhyavasini Bank was looted.
8. A Supplementary Affidavit has been filed stating that there was another Criminal Case No. 578 of 2000 relating to Bank Dacoity at Vindhyavasini Gramin Bank, Branch at Anpara, Sonbhadra arising from Case Crime No. 7 of 2000 under Sections 392/120B I.P.C. Therein also Revisionist was accused along with Rajesh Kumar Mishra wherein also statement of Lallan Prasad Pandey recorded under Section 161 Cr.P.C. was relied but the said witness did not support allegation of conspiracy against Revisionist in respect to loot at Vindhyavasini Bank and retracted from his statement and said that he has never given any such statement and that Police has wrongly included his name as witness.
9. On 08.01.2016 another Supplementary Affidavit has been filed by Revisionist bringing on record judgment dated 03.08.2001 passed by Sri Ramesh Gupta, Chief Judicial Magistrate, Sonbhadra acquitting Revisionist and co-accused Rajesh Kumar Mishra.
10. Relying on aforesaid acquittal and also statement of Lallan Prasad Pandey, PW-1 in Criminal Case No. 578 of 2000, Sri Gopal Swaroop Chaturvedi, learned Senior Counsel, urged that same evidence is foundation of implicating Revisionist in Sessions Trial No. 56 of 2000. Once the said witness has not supported allegations of conspiracy involving Revisionist and Rajesh Kumar Mishra, and this statement has already been tested in another criminal case relating to dacoity in Vindhyavasini Gramin Bank at Anpara, it will operate as res-judicata and on the basis of same evidence, Revisionist cannot be tried for the same offence, i.e. under Section 120B I.P.C. in respect to Bank dacoity at Allahabad Bank in which Revisionist was Branch Manager.
11. He further submitted that charge is same, evidence is same and, therefore, principle of Rest judicata pro veritate accipitur would apply. Reliance is placed on a decision of Privy Council in Sambasivam Vs. The Public Prosecutor 63 LW 597=54 CWN 695 and Apex Court's decisions in N.R. Ghosh Alias Nikhil Ranjan Ghose Vs. State of West Bengal AIR 1960 SC 239, Pritam Singh and another Vs. State of Punjab AIR 1956 SC 415, Lalta and others Vs. State of U.P. AIR 1970 SC 1381, Piara Singh Vs. State of Punjab 1969 (1) SCC 379, Amritlal Ratilal Mehta and another Vs. State of Gujarat 1980 (1) SCC 121. S. Swamirathnam Vs. State of Madras AIR 1957 SC 340 and Srichand K. Khetwani Vs. State of Maharashtra AIR 1967 SC 450.
12. On behalf of State, learned Additional Government Advocate was called upon to assist the Court. This Court is at pain to place on record that he neither possess file with him nor was in a position to assist the Court in any manner. In these facts and circumstances, the Court had to consider submissions advanced by learned counsel for Revisionist, peruse the record and also to examine law on the subject for deciding this revision. This fact I have also noted in my order dated 08.01.2006 while reserving judgment, which reads as under:
"1. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate, assisted by Sri Rakesh Chandra Upadhyay, Advocate, for revisionist and perused the record. Though learned A.G.A. was present and was requested to assist the Court, but he said that he has no file and failed to assist the Court.
2. Be that as it may, judgment reserved."
13. Now the sole question up for consideration in this case is that Revisionist has been acquitted in another Trial, i.e. Criminal Case No. 578 of 2000 in which witness Lallan Prasad Pandey, who is common in both the Trials, has retracted from his statement and in these facts and circumstances Trial Court, i.e., Chief Judicial Magistrate, Sonbhadra has found no evidence against Revisionist-accused to hold him guilty for an offence under Section 120B I.P.C. resulting in loot of cash from Vindhyavasini Bank, Branch Anpara, District Sonbhadra and that being so, "whether aforesaid judgment of acquittal would constitute res-judicata so as to bar Trial of Revisionist in respect to an offence under Section 120B I.P.C. in Sessions Trial No. 56 of 2000 pending in the Court of Sessions Judge, Sonbhadra".
14. In other words, "whether, Revisionist if tried in the aforesaid facts and circumstances, in Sessions Trial No. 56 of 2000, on the allegations of having committed an offence under Section 120B I.P.C., will it amount to double jeopardy"?
15. As a legal proposition, there is no quarrel that principle of res-judicata is applicable in criminal cases and there exists a constitutional bar against double jeopardy but question is, whether here is a case where these two principles would apply?
16. If we summarize entire facts relating to Criminal Case No. 578 of 2000 and Sessions Trial No. 56 of 2000, what this Court finds is there were two separate incidents; one occurred at Vindhyavasini Gramin Bank, Branch Anpara, District Sonbhadra and another at Allahabad Bank, Branch Khariya, Police Station Shakti Nagar, District Sonbhadra. The dates of incidents are also different. It is 11.01.2000 in respect to Vindhyavasini Gramin Bank, and 04.02.2000 in the case of Allahabad Bank.
17. Revisionist has no concern with Vindhyavasini Bank. He was Branch Manager at the relevant time at Allahabad Bank, Branch Khariya, District Sonbhadra. The incident giving rise to Criminal Case No. 578 of 2000 occurred on 11.01.2000 when Informant, Awanish Kumar Srivastava, Cashier, Vindhyavasini Gramin Bank, Anpara collected rupees two lacs from Allahabad Bank, Shakti Nagar and accompanied with Messenger, Jyotish Narain Rai, of Vindhyavasini Gramin Bank, was coming to his Bank, i.e., Vindhyavasini Gramin Bank, two persons riding motorcycle came near Anpara turn from Bus-Station and snatched away the bag containing cash of Rupees two lacs and ran away. First Information Report was lodged by Awanish Kumar Srivastava, Cashier, Vindhyavasini Gramin Bank registered as Case Crime No. 7 of 2000 at Police Station Anpara, Sonbhadra. Police investigated the matter, recovered money and thereafter submitted charge-sheet against Rajesh Kumar Mishra under Section 392 and Revisionist Suresh Kumar Singala under Section 120B I.P.C. The list of witnesses consisted of six persons, i.e., Lallan Prasad Pandey, PW-1, Awanish Kumar Srivastava, the informant, PW-2, Jyotish Narain Rai, PW-3 and rest three formal witnesses, i.e., Investigating Officer and others. During Trial, Lallan Prasad Pandey, PW-1 did not support his statement recorded under Section 161 Cr.P.C. and said that he has not given any such statement. Trial Court in absence of any evidence found that charge was not proved beyond doubt and hence acquitted both the accused.
18. Another incident took place on 04.02.2000 at Allahabad Bank in which Revisionist, at the relevant time, was Branch Manager. He, along with Head Cashier, were two persons responsible for opening and closing strong room. Revisionist, being Branch Manager, had overall responsibility. Rupees seventy lacs were received at Allahabad Bank at Branch Khariya from Robertsganj Branch. It was kept by Revisionist and Head Cashier in strong room. From the information given by Sri Ashish Kumar in First Information Report, strong room was not completely locked by Revisionist and he left Bank under charge of Ashish Kumar. While Ashish Kumar and Head Cashier, Umesh Kumar, were in process of locking of strong room, dacoity in the Bank was committed, resulting in a loot of 82,85,000/-. Report to this effect was lodged at Police Station Shakti Nagar (being Case Crime No. 44 of 2000) under Section 395/397 I.P.C. After investigation, charge-sheet was submitted against six persons including Rajesh Kumar Mishra and Revisionist.
19. It is in this factual background and in the light of authorities cited above, this Court has to consider submissions advanced by learned Senior Counsel appearing for Revisionist.
20. Learned Senior Counsel submitted that various authorities cited by him support his submission that once a witness, who is relied to frame charge against Revisionist, has retracted from his statement in another matter wherein also the same statement is relied, statement itself become inadmissible, and, in any case, if finding in respect to statement is that of a retraction, making evidence inadmissible, that would operate as res-judicata, and such statement cannot be relied to frame charge in any other criminal matter, even if there are two different criminal cases.
21. To test the above submission, I may first examine authorities cited by learned counsel for Revisionist to find out whether the extent of proposition he is advancing on the basis thereof, is actually discernible and then its application in case in hand.
22. The oldest case relied is Privy Council's decision in Sambasivam Vs. Public Prosecutor (supra). It was a single incident of 13.09.1948. In the morning appellant, Sambasivam, was travelling on foot in the State of Johore in the company of two Chinese. They met three persons. A fight ensued in the course of which one Chinese was killed. Appellant was seriously wounded. Other Chinese escaped and thereafter disappeared for all times to come. The three persons who were armed with knives alleged that they were first fired by Chinese and the appellant Sambasivam had drawn and pointed a revolver at one of them before he had been wounded and disarmed. Appellant Sambasivam was subsequently charged for carrying a firearm and being in possession of ten rounds of ammunition and, thus, guilty of Regulation 4(1) of Emergency Regulations, 1948 (hereinafter referred to as "Regulations, 1948"). He was tried according to procedure prescribed in Emergency (Criminal Trial Regulations, 1948 (hereinafter referred to as "Trial Regulations" 1948") which provided a simplified procedure without any preliminary enquiry. Trial was conducted before Laville, J. in Supreme Court at Johore Bahru and two assessors. Charge relating to Regulation 4(1)(b), i.e., possession of ammunition was returned by two assessors by a verdict of not guilty and learned Judge agreed with the finding of assessors, hence, acquitted appellant Sambasivam. In respect to another charge relating to carrying firearm assessors again returned verdict of not guilty but Laville, J. disagreed with the finding and ordered re-trial. Re-trial was directed in accordance with Section 198(2) of Code of Criminal Procedure which provides "If the Court is unable to agree with the opinion of both assessors ... the proceedings shall be stayed and a new trial held with the aid of fresh assessors". They found appellant Sambasivam guilty and he was sentenced to death. Court of appeal dismissed appeal on 28.04.1949 by an unreasoned order. Privy Council in appeal found that in the first Trial, in evidence led in respect to both charges, the principal witnesses were three persons, two of whom swore of seeing appellant with a revolver. One of them, who stabbed appellant Sambasivam, said that he had examined the revolver and it was loaded with six bullets. He also deposed that four more bullets were found in a bag which appellant was carrying. In the retrial, again principal witnesses were those three persons but no attempt was made to prove alleged statement of 20.09.1948 said to have been made by appellant Sambasivam, i.e., the day on which he was injured though it was sought to be relied as a confessional statement of carrying a firearm and possession of ammunition. Defence consisted of evidence of appellant, Sambasivam only who denied carrying of firearm and also making statement to the Police. Statement made to Police by a person charged of an offence was admissible in evidence by virtue of Regulation 33 (1) which read as under:
"33(1) Where any person is charged with any offence against these Regulations or with any offence specified in the Schedule to these Regulations, any statement, whether such statement amounts to a confession or not or is oral or in writing, made at any time, whether before or after such person is charged and whether in the course of a police investigation or not and whether or not wholly or partly in answer to questions, by such person to or in the hearing of any police officer of or above the rank of Inspector shall, notwithstanding anything to the contrary contained in any written law, be admissible at his trial in evidence and, if such person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit."
23. Privy Council held that in view of Regulation, statement of appellant Sambasivam was admissible but then it further said that mere fact that statement was admissible does not mean same thing has weight for the purpose of holding accused guilty. It further held that in respect to charge of possession of ammunition, appellant was already acquitted and if that be so, an evidence which may go to prove a charge which has already been found unproved and accused has been discharged, such evidence cannot be relied on for the purpose of proving remaining charge as this evidence has to be excluded else it would result in reopening of a charge which has already come to an end. Privy Council in this regard said:
"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Rest judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal insofar as it might be relevant in his defence. That it was not conclusive of his innocence on the fire-arms charge is plain, but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other.
These considerations do not appear to have received the attention they deserved at the second trial. Thus one of the police witnesses (P.W. 5) was re-examined so as to elicit the fact that the revolver concerned was loaded with six rounds; and in his summing up Storr, J., in reference to a point made by Mr. Charry, told the assessors to dismiss the question of ammunition from their minds, though it would seem that Mr. Charry's submission was, in effect, a suggestion that the person responsible for the ammunition might well be the person responsible in respect of the revolver that could fire it; and that, whatever may be said of its cogency, was an argument which the acquittal had made a possible line of defence. More important than these matters, however, was the reliance of the prosecution upon the statement of the 13th September which, if accepted as the truth, went to prove the appellant guilty of the charge of which he had been acquitted as clearly as it proved him guilty of the offence the subject of the second trial. This circumstance might well have been made a ground for excluding the statement in its entirety for it could not have been severed satisfactorily. But the point was not taken and the statement was left to the assessors, with ample warning, it is true, of the dangers of acting upon a retracted confession, but without any intimation that the prosecution could not assert or ask the Court to accept a substantial and important part of what it said. The fact appears to be-and the Board must judge of this from the record and the submissions of Counsel who argued the appeal-that the second trial ended without anything having been said or done to inform the assessors that the appellant had been found not guilty of being in possession of the ammunition and was to be taken as entirely innocent of that offence. In fairness to the accused that should have been made clear when the statement had been put in evidence, if not before. Their Lordships do not attempt to attribute or apportion responsibility for the omission. They do not know how far, if at all, the learned Judge's earlier ruling as to mention of the fact that the trial was a re-trial may have discouraged Counsel from referring to the previous proceedings; and they are uncertain from the record whether the learned Judge was himself aware of the acquittal. But they cannot avoid the conclusion that the effect of the omission was to render the trial unsatisfactory in a material respect. Had the assessors realised that only a part of the statement could be relied upon, they might have attached greater weight to the other criticisms regarding it any rejected it altogether. And had they done so it by no means follows that they would have been prepared to accept the testimony of the Malaya in preference to that of the appellant. What they would have done had the statement been excluded from evidence or its effect qualified by an unequivocal direction as to the appellant's acquittal and the effect thereof must, of course, remain a matter of conjectures. But the uncertainties are sufficiently reasonable to jeopardise the verdict reached and to justify the view, already expressed, that it ought not to stand.
For these reasons their Lordships have humbly advised His Majesty that the appeal should be allowed and the conviction and sentence set aside." (emphasis added)
24. In the case in hand, the incident and the evidences are different. Even if this Court may hold that statement of Lallan Prasad Pandey may not be relied on by prosecution, still there are other circumstances, which have to be examined and assessed to find out whether Revisionist is guilty of conspiracy under Section 120B I.P.C. for causing a Bank dacoity in the Bank in which he was Branch Manager or not. The connecting facts and circumstances available in the present case are much different than robbery of Rupees two lacs from the Cashier of Vindhyavasini Bank, in the incident took place on 11.01.2000. The incident in the present case has occurred after about 23 days thereafter and that too in the Bank in which Revisionist was Branch Manager. In my view, exposition of law as discussed in Sambasivam Vs. Public Prosecutor (supra) has no application to the facts of the case in hand.
25. The next judgment relied by learned Senior Counsel appearing for revisionist is N.R. Ghose Vs. State of W.B. (supra). This judgment has been relied in support of submission that "doctrine of res-judicata" is also applicable in criminal matters. Reliance is placed on para 28 of judgment. I find that para 28 is part of judgment rendered by Hon'ble A.K. Sarkar, J. taking a view, different, than majority. It is a judgment rendered by a Bench of four Hon'ble Judges. Two separate opinions have been rendered, one by Hon'ble J.L. Kapur and another by Hon'ble A.K. Sarkar, J. Hon'ble J.L. Kapur J. allowed appeal while Hon'ble A.K. Sarkar, J. dismissed appeal. In view of majority judgment, appeal was ultimately allowed. Therefore, the matter was decided by 3 > 1. Now taking brief facts of the matter, one complaint under Section 120-B and 409 I.P.C. read with Section 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as "PC Act, 1947") was filed against one S.K. Bose and appellant N.R. Ghose. Matter was tried by Special Judge at Alipore who held S.K. Bose guilty but acquitted N.R. Ghose. This judgment was rendered by Special Judge at Alipore in view of West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereinafter referred to as "Amendment Act, 1949") which came into force on 23.06.1949 whereunder criminal trial was allotted to Special Judge at Alipore. Validity of Section 4(1) of Amendment Act, 1949 came up for consideration before Special Bench of Calcutta High Court in J.K. Gupta Vs. State of West Bengal (1952) 56 CWN 701 and Court declared it ultra vires. Sri S.K. Bose filed appeal against his conviction in Calcutta High Court and Division Bench following Special Bench judgment declaring Section 4(1) ultra vires, allowed appeal, set aside conviction and sentence and directed that appellant S.K. Bose shall be regarded as an under-trial prisoner awaiting retrial if the Government so decides. Court also held that S.K. Bose will continue on the bail until such re-trial. Legislature brought in West Bengal Act 12 of 1952 and thereunder another Judicial Officer was appointed as Special Judge at Alipore. Before him, a petition was filed against S.K. Bose as well as N.R. Ghose. It was stated that High Court having held that allotment of case to the Court of previous Special Judge and all proceedings thereafter were invalid and all such cases were directed for re-trial, hence cognizance be taken for the offence against N.R. Ghose and S.K. Bose and they be re-tried. Special Judge, then summoned N.R. Ghose who pleaded bar of Section 403 Cr.P.C. relying on his acquittal by earlier Special Judge. This defence was overruled by Special Judge on the ground of want of jurisdiction of previous Special Judge to try the offence. N.R. Ghose moved High Court under Article 226 and 227 read with Section 439 Cr.P.C. and prayed for quashing of proceedings before Special Judge initiated against him, i.e., N.R. Ghose. Judicial Officer appointed as Special Judge ceased to have jurisdiction in view of another notification issued by Government whereupon he passed an order on 26.08.1952 that Court has no jurisdiction to continue trial hence the case be filed and accused be held under-trial prisoner pending re-trial according to law. N.R. Ghose amended his petition. High Court dismissed his petition holding that since Act under which he was tried by Special Judge and acquitted, relevant provision was declared ultra vires, therefore, judgment rendered by such Special Judge has no binding force. Thereafter, case of N.R. Ghose and S.K. bose both were allotted to Special Judge, Darjeeling and a further complaint was filed thereat. Special Judge issued process against both the accused. N.R. Ghose again took objection to restarting of proceedings. S.K. Bose, another accused, filed a Revision before High Court challenging proceedings before Special Judge, Darjeeling which was allowed and proceedings were quashed by High Court observing that Amendment Act, 1952 was inapplicable to facts of case in hand. Then on 31.05.1954, Sub-divisional Magistrate, Darjeeling issued process against N.R. Ghose fixing 21.06.1954. The case, however, was transferred to another Magistrate S.P. Kar. N.R. Ghose applied to Sub-divisional Magistrate for quashing of proceedings on the ground that he had been acquitted by a Court of competent jurisdiction and also pointed out that Section 4(1) of Amendment Act, 1949 was declared intra vires by Supreme Court in Kedar Nath Bajoria Vs. State of West Bengal 1954 SCR 30, hence, fresh proceedings against him are bad. Magistrate dismissed his petition, referring to High Court's order which directed re-trial, though it was passed after judgment of Supreme Court. The matter was again taken by N.R. Ghose in Revision to High Court. Court held that N.R. Ghose cannot get benefit under Section 403 Cr.P.C. as also subsequent change in law in view of Supreme Court's judgment in Kedar Nath Bajoria Vs. State of West Bengal (supra). Revision filed by Sri N.R. Ghose was dismissed, hence, matter went to Supreme Court. The entire case revolved around Section 403 (1) Cr.P.C. stating that a person once tried and acquitted for an offence is not liable to be tried again for the same offence or on the same facts. The majority judgment in para 9 observed that it was not necessary to discuss scope of "res-judicata" and its application in criminal proceedings since the issue need be considered by it is different. Paras 9 and 10 are reproduced as under:
"9. It is not necessary in this appeal to decide whether it was open to the High Court to take a different view of the effect of the order of acquittal passed by Mr. S. C. Dutt Gupta because of the pronouncement by this Court in Kedar Nath Bajoria's case (1954) S.C.R. 30. What we have to decide in this appeal is whether the order of Chunder, J., has the effect of debarring the appellant from the benefit of obtaining a review by this Court of that decision. It is also not necessary to discuss the scope of res judicata and the extent of its application to criminal proceedings and its limitation to decisions of courts of competent jurisdiction.
10. Except where the statute so requires it is not imperative upon a party to appeal against every error, defect or irregularity in any order by which he may conceive himself aggrieved under the penalty, if he does not so do, of forfeiting for ever the benefit of consideration by this Court. Nothing would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon a party the necessity of appealing against every such order. It was so held in Moheshur Singh v. The Bengal Government (1859) 7 M.I.A. 283, 302 where a party had not appealed from the order of Sudder, Commissioner, granting a review of judgment. In our opinion, it would make no difference as far as this Court is concerned whether an intermediate order complained of is passed by the trial court and is not taken to the High Court in revision or it is taken in revision to the High Court and is there confirmed. We think it unnecessary in this case to express any opinion as to the effect of that order qua the revision in the High Court itself, but when the matter properly comes to this Court in appeal in such circumstances as this case it is open to this Court unless there is any statute which provides differently to review the order passed by the High Court as much as it would have been if the original order passed by the trial court had not been taken to the High Court in revision. In civil cases this principle was accepted by the Privy Council. See Alexander John Forbes v. Ameeroonissa Begum (1865) 10 M.I.A. 340, 352 where an order of remand had not been appealed against; Sheonath v. Ram nath (1865) 10 M.I.A. 413 where the order was a step in the procedure that leads to a final decree; Shah Mukhun Lal v. Baboo Sree Kishen Singh (1868) 12 M.I.A. 157 where the question as to interest was decided in an interlocutory decree not appealed from. These cases are decisions on general principles and are not based on any particular statute or regulation peculiar to procedure in civil cases. We do not see why the principle of these cases should, in the absence of any law to the contrary, not be equally applicable to matters of a criminal nature."
26. Court then held that ultimately, since Section 4 (1) was upheld by Supreme Court, judgment of Special Judge acquitting N.R. Ghose attained finality and was binding unless set aside in appeal which appeal admittedly was never filed against acquittal of N.R. Ghose. In that view of matter, in view of majority, appeal was allowed and fresh proceeding initiated against N.R. Ghose was set aside. Relevant observations made in para 11 and 12 may be reproduced as under:
"It only means this that for an order of acquittal to be binding it must be pronounced by a Court of competent jurisdiction. In the judgment of the High Court in Criminal Revision No. 930 of 1954 now under appeal S. K. Sen, J., was of the opinion that as the acquittal was not by a Court of competent jurisdiction the Government regarded it as set aside and it was no longer in force when Chunder, J., passed his order on March 19, 1953, and "consequently the petitioner " (now the appellant) could no longer get the benefit thereof under Section 403 Cr. P. C. on a subsequent change in the law introduced by the Supreme Court decision in Kedar Nath Bajoria v. The State of West Bengal (1954) S.C.R. 30. Following Kedar Nath Bajoria's case we are of the opinion that Section 4(1) of the Act was not ultra vires and the judgment of the Calcutta High Court in J.K. Gupta Vs. State of West Bengal (1952) 56 C.W.N. 701 was erroneous and the acquittal by the Special Judge Mr. S. C. Dutt Gupta was an order made by a court of competent jurisdiction; as such it was binding unless set aside in appeal and it was never set aside in appeal. The observations of the Privy Council in Yusofalli Mulla Noorbhoy v. The King Emperor (1950) A .C. 458, 479:
"If the orders of acquittal were passed by a court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal "
would be applicable to the case of the appellant. If the trial court was not a court of competent jurisdiction the acquittal would be no more than a discharge; but if it was by a court of competent jurisdiction it is binding unless lawfully set aside.
12. The plea of the appellant effectively falls within Section 403 Criminal Procedure Code. We have held that the trial in the court of Mr. S. C. Dutt Gupta being a trial before a court competent to pass a valid order the prosecution is bound to accept the correctness of the verdict of acquittal and is precluded from challenging it. As was said by Lord Mcdermott in Sambasivam v. Public Prosecutor, Federation of Malaya (1950) A .C. 458, 479 in regard to a verdict pronounced by a competent court and after a lawful trial:
"the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication."
This passage was quoted with approval by this Court in Pritam Singh Vs. The State of Punjab A.I.R. 1956 S.C. 415,420. In our opinion the order of Chunder, J., was based on an erroneous view of the vires of Section 4(1) of the Act. The first trial of the appellant was before a court of competent jurisdiction and the verdict of acquittal was not a nullity; its efficacy was not impaired by any binding order of the High Court; and at this stage when the matter is properly before this court and the proceedings are a continuation of the proceedings before Mr. J. C. Lodh, it is not precluded from rectifying any error or defect in the order of the High Court and giving effect to the plea set up under Section 403. The trial before Mr. S. C. Dutt Gupta being a lawful one which resulted in acquittal and which has never been set aside, another trial would place the appellant in jeopardy a second time which would contravene Section 403 of the Criminal Procedure Code."
27. Hon'ble A.K. Sarkar, J. delivering minority judgment though in para 28 and 29 observed that though principle of finality of judgment is applicable in Criminal law as well as it does in civil law and Section 403 Cr.P.C. is based on said principle, but since appellant at relevant time was not acquitted by Court of competent jurisdiction, Section 403 would not support his case.
28. I find that this judgment has been rendered on its own facts and was not a case where N.R. Ghose was tried in respect to two different offences, may be some facts and evidence are common, but that cannot be constituted as one offence so as to attract Section 403 Cr.P.C. This judgment, therefore, also does not help the Revisionist in any manner.
29. Third decision is Pritam Singh and another Vs. State of Punjab AIR 1956 SC 415 wherein a Criminal Appeal was decided by Supreme Court upholding conviction of appellant Pritam Singh and another under Section 302 I.P.C. sentencing death punishment. Having gone through entire judgment, I find nothing which may help Revisionist at all. In para 15 of judgment, Court has noted High Court's observations with reference to the decision in Sambasivam Vs. Public Prosecutor (supra). It says as under:
"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial."
30. However, for the reasons already discussed, this decision does not help revisionist at all.
31. In Lalta and others Vs. State of U.P. (supra), Lalta filed a Money Suit No. 54 of 1955 before Civil Judge, Gonda against one Swami Nath, on the basis of a pronote and receipt dated 01.07.9152. Swami Nath even before institution of Suit, filed a complaint on 24.01.1955 against Lalta and others alleging that they had forcibly taken his thumb impression on a number of blank forms of pronotes and receipts. Complaint resulted in order dated 31.05.1956 passed by Magistrate acquitting accused Lalta and others. Thereafter, charge was framed under Section 342 and 384 I.P.C. against Swami Nath and a criminal case proceeded against him. In Civil Court, Swami Nath moved an application that pronote and receipts relied on by Lalta are dated 01.07.1952 and a report be obtained from Superintendent, Security Press, Nasik as to when stamps were actually printed and issued. The report received showed that stamps were printed on 21.12.1953 and issued for the first time on 16.01.1954 to Treasury. Thereafter Lalta abstained from Civil Court and suit was dismissed for want of prosecution on 01.06.1956. An application was filed before Civil Judge to take action against Lalta and others for committing forgery. Thereupon Civil Judge filed complaint on 09.11.1956 against Lalta and others for offence under Sections 193, 194, 209, 465, 467 and 471 I.P.C. Another complaint he filed against Tribeni and Ram Bharosey for offence under Section 193 I.P.C. Magistrate enquired complainant and committed Lalta and others to Court of Sessions. Sessions Court convicted Tribeni and Ram Bharosey under Section 467 read with 109 I.P.C. and sentenced them to three years rigorous imprisonment. He also found Lalta guilty of offence under Section 467 I.P.C. and sentenced with three years rigorous imprisonment. Lalta was also convicted under Section 471 I.P.C. and sentenced to two years rigorous imprisonment. He was also found guilty under Section 193 I.P.C. and sentenced to three years rigorous imprisonment. Lalta and others filed appeal and Sessions Judge, Gonda vide judgment dated 17.10.1964 set aside conviction of Lalta under Section 193 I.P.C. but maintained conviction under other provisions. Tribeni, Lalta and Ram Bharosey then filed Revision before High Court which was dismissed and judgment of Sessions Judge was upheld. The matter then came to Supreme Court.
32. It was argued before Supreme Court that Swami Nath's complaint has been dismissed by Second Class Magistrate on 21.05.1956. Prosecution on the charge of forgery must fail and conviction of Lalta under Section 467 and 471 I.P.C. was not sustainable. It was also argued that charge of abetment against Ram Bharosey and Tribeni under Section 467 read with 109 I.P.C. and Section 471 read with 109 I.P.C. must fail for the same reason. Supreme Court upheld the contention. Relying on Pritam Singh and another Vs. State of Punjab (supra), it held that effect of a verdict of acquittal by a competent Court after a lawful trial wiped out and person acquitted cannot be tried again for the same offence. The Court however added, "... it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication."
33. Then referring to Section 403 Cr.P.C., Court found that Section 403 (1) Cr.P.C. would not apply unless it is a case of re-trial for the same offence or the case of same facts for any other offence for which a different charge from the one made against him might have been made under Section 236.
34. In my view, Trial for different offence i.e. dacoity in Allahabad Bank is permitted by virtue of Section 403(2) Cr.P.C.
35. However, there is some observation made by Court with regard to issue of estoppel. Where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of accused for a different offence, but as precluding reception of evidence to disturb that finding of fact when accused is tried subsequently, even for a different offence which might be permitted by terms of Section 403(2) Cr.P.C. Section 403 Cr.P.C. does not preclude applicability of rule of issue of estoppel to a criminal case.
36. The aforesaid observation makes statement of Lallan Prasad Pandey inadmissible since it was the same statement which was relied in earlier prosecution also, and, Lallan Prasad Pandey having retracted therefrom, statement has become inadmissible. If that be so, in the present Trial, after framing charge in respect to different incident and offence, it may not be open to Trial Court to consider the said statement so as to have any possibility of having a different finding disturbing earlier one, and, to that extent, finding of earlier prosecution may render statement of Lallan Prasad Pandey inadmissible. But there are other facts and circumstances which have been considered by Sessions Judge while framing charge which cannot be omitted and for this reason no case is made out to quash the charge and entire proceedings in the present revision which pertains to a different incident, different offence and different charge.
37. In taking the above view, I am fortified by another decision cited by learned Senior Counsel, i.e., Piara Singh Vs. State of Punjab (supra). The facts of case are that one Ram Sahai, Organising Secretary of Jagatjit Kapra Mills Mazdoor Union, Phagwara, proceeded on hunger strike. On 04.10.1966, a Postman Ram Labhaya came with a registered parcel addressed to Ram Sahai and the parcel was opened. A bomb inside exploded as a result whereof Radhey Sham, Shadi Lal and Charanjit Lal died and some other received injuries. Prosecution alleged that parcel was dispatched by Piara Singh from Amritsar at the instance of Nand Lal Sehgal and one Mohinder Singh helped Piara Singh in preparing parcel containing bomb. Piara Singh and Nand Lal Sehgal both were tried and Sessions Judge, Kapurthala convicted Piara Singh under Section 302 I.P.C. and sentenced him to death. He was also convicted and sentenced five years rigorous imprisonment under Section 3 of Explosive Substances Act and five years rigorous imprisonment under Section 326 I.P.C. Co-accused Nand Lal Sehgal was sentenced with life imprisonment under Section 302 read with 109 and 113 I.P.C. and five years rigorous imprisonment under Section 4 of Explosive Substances Act. Both accused filed appeal in High Court. State also filed Criminal Revision for enhancement of sentence of Nand Lal Sehgal. Piara Singh's appeal was dismissed and High Court confirmed death sentence imposed upon him. However, appeal of Nand Lal Sehgal was allowed and Revision filed by State was rejected. Piara Singh then appealed before Supreme Court. Argument was raised that once co-accused Nand Lal Sehgal has been acquitted, it would weaken, if not destroy, Approver's evidence which has been relied to convict Piara Singh. Court found that Nand Lal Sehgal was acquitted since Approver's evidence was not corroborated. But there was no finding recorded by High Court that Approver has implicated Nand Lal Sehgal falsely. Court acquitted Nand Lal Sehgal in absence of corroboration since it was not safe to uphold conviction.
38. Supreme Court observed that it is a different thing from saying that Court found that Approver's evidence regarding participation of Nand Lal Sehgal is false. In facts of the case, Court found that issue of estoppel has no application. It observed:
"...principle of issue-estoppel is different from the principle of double jeopardy or; autrefois acquit as embodied in Section 403 of the Criminal Procedure Code. The principle of issue-estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2) Cr.PC." (emphasis added)
39. Court further held that in order to attract principle of issue of estoppel, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties.
40. In Amritlal Ratilal Mehta and another Vs. State of Gujarat (supra), two persons, Amritlal Ratilal Mehta and Gajanan Bhikhabhai Gandhi were charged under Section 420 read with 34 I.P.C. Another charge was framed under Section 477-A read with 34 I.P.C. Magistrate acquitted both the accused in respect to charge under Section 420 read with Section 34 I.P.C., but sentenced under Section 477-A read with 34 I.P.C. The accused preferred appeal and Sessions Judge acquitted them from the charge under Section 477-A read with Section 34 I.P.C. Against this acquittal under Section 477-A read with 34 I.P.C., State preferred appeal which was summarily dismissed by High Court on 13.03.1972. However, appeal preferred against acquittal under Section 420 read with 34 I.P.C. was allowed and accused were sentenced to pay fine. It is this order of conviction and sentence under Section 420 read with 34 I.P.C. which was assailed before Supreme Court. It was argued that once the accused have been acquitted under Section 420 read with 34 I.P.C. and judgment has become final upto High Court, charge under Section 420 read with 34 I.P.C. must also fail automatically. Court upheld the submission. It held that an earlier finding, which has attained finality, is binding in subsequent proceedings. Court said:
"The question here is not whether the ingredients of the two offences are the same or substantially the same. That question would be relevant if the plea was one autrefois acquit or autrefois convict. The question is not even of 'issue estoppel' properly so called as there were no separate trials. The question really is about the binding force and the conclusive nature, at later stages of a case, of a finding of fact finally determined at an earlier stage of the case. The question is not res integra. In Bhagat Ram Vs. State of Rajasthan (1972) 2 SCC 466 and State of Rajasthan Vs. Tarachand Jain (1974) 3 SCC 72, it has been held by this Court, an earlier finding which had attained finality is binding in the subsequent proceedings in the case. The question about the binding force of a finding at an earlier stage 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. The charges set out by us at the outset show that the essential allegation which was required to be proved in respect of the two charges was whether the gate passes were made 'dishonestly' so far as the charge under Section 420 was concerned and 'with intent to defraud' so far as the charge under Section 477-A was concerned. A finding that the gate passes were made inadvertently and negligently was destructive of both the charges. If for the purpose of the offence under Section 477-A, the Court found that the entries made by the accused in the gate passes were made inadvertently and negligently but not wilfully or with a view to defraud and that finding became final, it would not be open to the Court, later to find, on the charge under Section 420, that the entries on the gate passes were made not inadvertently and negligently, but dishonestly. On the facts of the present case, we hold that the finding of fact to the effect that the gate passes were made inadvertently and negligently and not wilfully or with intent to defraud which led to the acquittal of the accused on the charge under Section 477-A must, that acquittal having become final, operate for the benefits of the accused and lead to their acquittal on the charge under Section 420 also. The finding that the gate passes were made inadvertently and negligently, as we said, was destructive of the charges under both Section 420 and Section 477-A. The appeal is therefore allowed."
(emphasis added)
41. The extract quoted above clearly shows that aforesaid decision has no application to the facts of this case where the incident, the attending facts and circumstances and all other things are quite different except of one common evidence of Lallan Prasad Pandey and even if that is excluded, it cannot be said that on the basis of remaining material on record, no charge in the case in hand is made out.
42. Next comes the decision in S.Swamirathnam Vs. State of Madras (supra). Appellant S.Swamirathnam was tried for offence of conspiracy of cheating members of public and for specific offence of cheating in pursuance of that conspiracy. Trial Court acquitted Swamirathnam of all the charges while two others, Abbas and Abu Bucker, were convicted for the offence of conspiracy. Appeals were filed in High Court by convicted persons as also by State against acquittal. High Court set aside acquittal of Swamirathnam and convicted him for offence of conspiracy and offence of cheating one Ramaswami Mudaliar, who was examined as an Approver. It was argued before Supreme Court that evidence of Approver was not corroborated by conclusive evidence. After discussing evidence on record, Court did not agree and dismissed appeal. Here was a case of a single conspiracy spread over several years though to a number of members of public. It was argued that different instances of cheating cannot be treated to be part of same transaction but that was not accepted by Court. It held that the instances of cheating were in pursuance of conspiracy and therefore part of the same chain of transaction.
43. In the case in hand, it is argued that alleged conspiracy, in view of alleged statement of Lallan Prasad Pandey, constitute same incident, but I am not impressed with the argument. The incident of loot in Allahabad Bank where accused-revisionist himself was Manager has different reasons to implicate him and the factum that prosecution has taken into account one common evidence would not render other material bad or inadmissible in law or having no consequence.
44. Lastly coming to the decision of Srichand K. Khetwani Vs. State of Maharashtra (supra), there also eight licenses issued were held to be part of same conspiracy. For the reasons stated in S.Swamirathnam Vs. State of Madras (supra) even this judgment does not help the revisionist in any manner.
45. Further, I find that here is not a case of order of conviction or a completed trial which is challenged on the ground of double jeopardi etc. When the principle of issue of estoppel is argued, principle of double jeopardy stands excluded. The two principles are different. Here is a case where we have to examine whether Sessions Court was justified in framing charge against revisionist or not. From the discussion made by Sessions Judge in the order of framing charge, this Court is satisfied that there is sufficient material to frame charge under Section 120B I.P.C. against revisionist. In the process of trial, if some individual evidence is led or some evidence is led which, according to revisionist, ought not to have been considered, it is always open to him to raise permissible arguments in the Trial Court but that will not vitiate the charge framed against accused-revisionist so as to justify interference at this stage.
46. This revision is thoroughly misconceived and to my mind has been filed with an intention to delay trial in which revisionist has substantially succeeded by delaying proceedings by one and half decade. It is really unfortunate that such revision, which ought to have been decided at much earlier stage, has remained pending in this Court for almost more than 15 years in a matter where public money from a Bank has been looted where accused-revisionist is Bank Manager and his complicity in the matter is under trial.
47. In this backdrop, this Court is of the view that Trial Court shall now proceed with matter expeditiously and the prosecution will also co-operate to complete trial expeditiously and, in any case, within one year from the date of production of certified copy of this order.
48. With the aforesaid observations, revision is dismissed.
49. Interim order, if any, stands vacated.
50. Certify this judgment to the Lower Court immediately.
Dt. 13.05.2016 PS