quashing section 482 and compounding of offences and issue estoppel and section 300 and section 362
Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed. (vide Gian Singh vs State Of Punjab & Anr decided on on 24 September, 2012)
Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
Discussion of decided cases Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the courts power to prevent such abuse is of great constitutional importance and should be jealously preserved.
In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.
In Chandrapal Singh & Others v. Maharaj Singh & Another (1982) 1 SCC 466, in a landlord and tenant matter where criminal proceedings had been initiated, this Court observed in para 1 at page 467 as under:-
A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous. The court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court.
This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:
7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
This court in Janata Dal v. H. S. Chowdhary & Others (1992) 4 SCC 305 observed thus:
132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.
This court in Roy V.D. v. State of Kerala (2000) 8 SCC 590 observed thus:-
18. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-
It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. In Indian Oil Corporation v. NEPC India Ltd. & Others (2006) 6 SCC 736, this court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The court further observed that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. The question before us is - whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal (supra)? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused under Sections 420, 467 and 120B IPC? For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the FIR/complaint. Narinder Singh & Ors vs State Of Punjab & Anr CRIMINAL APPEAL NO.686/2014 (I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
(II)When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.
(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
(VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
(VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime. (Rationale of section 482 Quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest whenever anything is authorised, and especially if, as a matter duty required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debitio justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. [Gian Singh v. State of Punjab, (2012) 10 SCC 303]) Supreme Court of India
The State Of Madhya Pradesh vs Laxmi Narayan on 5 March, 2019 i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;
iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;
iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of Supreme Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole .
v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc. Quashing of FIR general guidelines :- State Of Haryana And Ors vs Ch. Bhajan Lal And Ors 1990 SCR Supl. (3) 259 (it reiterated the law laid down in State of Bihar and Anr. v. J.A.C. Saldanha and Ors., [1980] 1 SCC 554) (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the ac- cused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Supreme Court also gave a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too i the rarest of rare cases;that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. (Special reasons must be there to quash the FIR) Supreme Court of India
Smt. Rashmi Kumar vs Mahesh Kumar Bhada on 18 December, 1996 Exercise of power by the High Court under Section 482 of the Code to quash the complaint or the charge-sheet or the First Information Report and held that the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the Court. Quashing of cases in Economic Offences :- IN State of Tamil Nadu v R Vasanthi Stanley (2016)1 SCC 376, the court rejected the submission that the first respondent was a woman “who was following the command of her husband” and had signed certain documents without being aware of the nature of the fraud which was being perpetrated on the bank. Rejecting the submission, Supreme Court held that:
“... Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score…” “…A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system…” The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance. (view reiterated in Parbatbhai Aahir @ Parbatbhai vs The State Of Gujarat on 4 October, 2017)
D. DEVARAJA …Appellant
VERSUS
OWAIS SABEER HUSSAIN CRIMINAL APPEAL NO. 458 OF 2020 The short question involved in this appeal before SC was, whether the
Magistrate could, at all, have taken cognizance against the
appellant, in the private complaint.
In the absence of sanction under Section 197 of the Code of Criminal
Procedure read with Section 170 of the Karnataka Police Act, 1963, as
amended by the Karnataka Police (Amendment) Act, 2013, and if not,
whether the High Court should have quashed the impugned order of
the Magistrate concerned, instead of remitting the complaint to the
Magistrate concerned and requiring the accused appellant to appear
before him and file an application for discharge. ( High court in facts of the case clearly held that it required sanction but instead of exercising power under 482 it
remitted the matter to the magistrate to consider discharge) Supreme Court held :- an application under Section 482 of the
Criminal Procedure Code is maintainable to quash proceedings which
are ex facie bad for want of sanction, frivolous or in abuse of process
of court. If, on the face of the complaint, the act alleged appears to
have a reasonable relationship with official duty, where the criminal
proceeding is apparently prompted by mala fides and instituted with
ulterior motive, power under Section 482 of the Criminal Procedure
Code would have to be exercised to quash the proceedings, to
prevent abuse of process of court. In peculiar facts of this case High Court was held to have clearly erred in law
in refusing to exercise its jurisdiction under Section 482 of the
Criminal Procedure Code to set aside the order of the Magistrate
impugned taking cognizance of the complaint, after having held that
it was a recognized principle of law that sanction was a legal
requirement which empowers the Court to take Cognizance. The
Court ought to have exercised its power to quash the complaint
instead of remitting the appellant to an application under Section 245
of the Criminal Procedure Code to seek discharge. What is vexatious in law ? The word "vexatious" means ‘harassment by the process of law', 'lacking justification' or with 'intention to harass'. It signifies an action not having sufficient grounds, and which therefore, only seeks to annoy the adversary.
The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceeding may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. Such proceedings are different from those that involve ordinary and proper use of the process of the court.
What is malice in law? Mala fides, where it is alleged, depends upon its own facts and circumstances, in fact has to be proved. It is a deliberate act in disregard of the rights of others. It is a wrongful act done intentionally without just cause or excuse In West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976, this Court dealt with the term “malicious prosecution” by referring to various dictionaries etc. as :
‘Malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognised mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result.
‘MALICE’ consists in a conscious violation of the law to the prejudice of another and certainly has different meanings with respect to responsibility for civil wrongs and responsibility for crime.
Malicious prosecution means - a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:—Malice is not merely the doing of a wrongful act intentionally but it must be established that the defendant was actuated by malus animus, that is to say, by spite or ill will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; ‘malice’ and ‘want of reasonable and probable cause,’ have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them. What is issue estoppel ? The principle of issue-estoppel is also known as ‘cause of action estoppel’ and the same is different from the principle of double jeopardy or; autre fois acquit. This principle applies 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 then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence.
the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial. If the cause of action was determined to exist, i.e., judgment was given on it, the same is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. ( vide Supreme Court of India in Ravinder Singh vs Sukhbir Singh & Ors decided on 11 January, 2013 )
Speaking on the principle of estoppel Dixon, J. said in King v. Wilkesi 77 C.L.R. 511 at pp. 518-519 :
Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue-estoppel, if it appears by record of itself of as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in view on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J. in R. v. Ollis which in effect I have adopted in the foregoing statement.... There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue-estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation. In a subsequent case Marz v. The Queen [1956] 96 C.L.R. 62, Dixon, C.J. stated as follows :
The law which gives effect to issue-estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel still less with the processes of reasoning by which the finding was reached in fact.... It is enough that an issue or issues have been directly raised and found. Once that is done, then, so long as the finding stands, if there by any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. Res judicate pro veritate accipitur. And this ... applies in pleas of the Crown.
Again in Brown v. Robinson [1960] S.R. (N. S. W.) 297, 301 Herron and Maguire, JJ. said :
Before issue-estoppel can succeed in a case such as this there must be prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner... It depends upon an issue or issues having been distinctly raised and found in the former proceeding. (The principle of issue-estoppel has received the approval of Supreme Court in Pritam Singh v. State of Punjab and Manipur Administration v. Thokchom Bira Singh and several other decisions . Its a necessary part of Indian law.) Test to decide - The essentials of the rule of issue-estoppel are:
(i) The parties in the two proceedings must be the same;
(ii) The issue that was decided earlier must be identical with that which is sought to be re-agitated.
The issue-estoppel applies only when both the earlier and the present proceedings are criminal prosecutions.
Where an issue has been decided by a competent Court on a former occasion, such a finding constitutes an estoppel or res judicata against the parties to that proceeding. It will operate as a bar to reception of evidence to disturb that finding in a subsequent trial or proceedings, the principle is known as rule of estoppel.
Where an issue of fact has been decided by a competent Court on a former occasion in favour of the accused, such finding operates as estoppel or res judicata against the prosecution. Difference between cause of action estoppel and issue estoppel :
Suoreme Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the 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 acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. (Vide: Pritam Singh & Anr. v. The State of Punjab, AIR 1956 SC 415; Manipur Administration, Manipur v. Thokchom Bira Singh, AIR 1965 SC 87; Workmen of the Gujarat Electricity Board, Baroda v. Gujarat Electricity Board, Baroda, AIR 1970 SC 87; and Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626). In case of Hope Plantations Ltd vs Taluk Land Board Peermade & Anr, on 3 November, 1998, the supreme court differentiated between issue estoppel and cause of action estoppel in following manner:
“In Arnolds & Ors. vs. National Westminster Bank Plc. [(1991) 2 AC 93] House of Lords noticed the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not according to the law of England, prevent the latter to be re-opened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue. Here also bar is complete to re-litigation but its operation can be thwarted under certain circumstances.”
Further, in Arnolds & Ors. vs. National Westminster Bank Plc. [(1991)2 AC 93] House of Lords have also stated following type of estoppel:
“There are, however, four situations where in second proceedings between the same parties the doctrine of estoppel per rem judicatam may be invoked: (i) cause of action estoppel, where the entirety of a decided cause of action is sought to be relitigated; (ii) issue estoppel or, “decided issue estoppel,” where an issue is sought to be relitigated which has been raised and decided as a fundamental step in arriving at the earlier judicial decision; (iii) extended res judicata or “unraised issue estoppel,” where an issue is sought to be litigated which could, and should, have been raised in a previous action but was not raised (Henderson v. Henderson (1843) 3 Hare 100); (iv) a further extension of (iii) to points not raised in relation to an issue in the earlier decision, as opposed to issues not raised in relation to the decision itself. " Illustrative cases :-
The Constitution Bench of Supreme Court in The Assistant Collector of the Customs, Bombay & Anr. v. L. R. Melwani & Anr. AIR 1970 SC 962, repelled the contention of the respondents therein that their criminal prosecution for alleged smuggling was barred because proceedings were earlier instituted against them before Collector of Customs. It was observed that neither the adjudication before the Collector of Customs was a prosecution, nor the Collector of Customs was a Court. Therefore, neither the rule of autrefois acquit can be invoked, nor the issue estoppel rule was attracted. The issue estoppel rule is a facet of doctrine of autrefois acquit. Principles of res judicata also applicable in criminal trial
in the case of Bhagat Ram v. State of Rajasthan() and it was held that the principle of res judicata is also applicable to. criminal proceedings and it is not permissible in the subsequent stage of the same proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded.
In the case of Sambasivam v. Public Prosecutor, Federal of Malaya(1), Lord MacDermott observed:
"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 steps to challenge it at the second trial." For applicability of section 300 , a trial is neccesary :- State of Andhra Pradesh v. Kokkiliagada Marraayya and Anr. In that case proceedings were instituted under section 107 of the Code of Criminal Procedure against four persons in respect of four incidents. One of the incidents was alleged to have taken place on June 22, 1964. Eleven persons, including the two respondents, were stated to have indulged in certain acts of violence, as a result of which a case had been registered against them under sections 148, 323 and 325 Indian Penal Code . The Magistrate holding the inquiry took the view that the evidence led in support of the incident of June 22, 1964 was not reliable. Subsequently the respondents were convicted for the offences under section 323 and 324 Indian Penal Code in respect of the incident of June 22, 1964. The High Court set aside the conviction of the respondents by invoking the principle of "issue estoppel". On appeal this Court held that the High Court was in error in holding that the respondents could not be tried and convicted for offences under sections 324 and 323 Indian Penal Code because of the earlier proceedings under section 107 of the Code of Criminal Procedure.Dealing with the question of issue estoppel, this Court observed "The rule of issue estoppel cannot, in our judgement, be extended so as to prevent evidence which was given in the previous proceeding and which was held not sufficient to sustain the other. for being used in support of a charge of an offence which the State seeks to make out. The rule of issue estoppel prevents relitigation of the issue which has been determined in a criminal trial between the State: and the accused. If in respect of an offence arising out of a transaction a trial has been taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel. In the, present case, there was no trial and no acquittal."
If prosecution is set aside for the want to sanction , it cannot bar a retrial under Section 300 if valid sanction is granted :- Supreme Court of India
Baij Nath Prasad Tripathi vs The State Of Bhopal(And Connected ... on 13 February, 1957 (constitution bench) it was held that (1) was that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal; if the Court was not so competent, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained. It is quite apparent that in the absence of a valid sanction the trial of the appellant in the first instance was by: a magistrate who had no jurisdiction to try him."
Amritlal Ratilal Mehta & Anr vs State Of Gujarat on 16 November, 1979 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 Section 300 of Cr.PC and Article 20 (2) Of The Constitution are based on the maxims :- nemo debet bis punire pro uno delicto (no man should be punished twice for the same offence) Nemo debet bis vexari pro una et eadem causa (No one should be tried twice in respect to the same matter)
In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, the Constitution Bench of Supreme Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the customs authorities and the gold seized from his possession was confiscated. Later on, a prosecution was launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947 (hereinafter called `FERA’) read with the relevant notification. In the background of these facts, the plea of “autrefois acquit” was raised seeking protection under Article 20(2) of the Constitution of India. Supreme court held that the fundamental right which is guaranteed under Article 20 (2) enunciates the principle of “autrefois convict" or "double jeopardy" i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim "nemo debet bis punire pro uno delicto", that is to say that no one ought to be twice punished for one offence. The plea of “autrefois convict” or "autrefois acquit" avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of "autrefois acquit" is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter. The Constitution Bench of Supreme Court in S.A.Venkataraman v. Union of India & Anr., AIR 1954 SC 375, explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20 (2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words ‘prosecuted’ and ‘punished’ are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive. When will the second prosecution act as a bar under article 20 (2) read with section 300 Cr.PC , Section 26 of the General clauses Act and section 71 IPC ? In The State of Bombay v. S.L. Apte and Anr. AIR 1961 SC 578, the Constitution Bench of Supreme Court while dealing with the issue of double jeopardy under Article 20(2), held:
“To operate as a bar the second prosecution and the consequential punishment thereunder, must be for “the same offence”. The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out." In Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi, AIR 2003 SC 2545, this Court while considering the case for quashing the criminal prosecution for evading the customs duty, where the matter stood settled under the Kar Vivad Samadhan Scheme 1988, observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy.
A few illustration to demonstrate when will the bar under section 300 and rule of double jeopardy will not apply :- In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia & Ors., AIR 1988 SC 1106, wherein the accused were prosecuted under Customs Act, 1962 (hereinafter referred to as `Customs Act’) and subsequently under Gold (Control) Act, 1968, (hereinafter called as `Gold (Control) Act’) it was held that the ingredients of the two offences are different in scope and content. The facts constituting the offence under the Customs Act are different and are not sufficient to justify the conviction under the Gold (Control) Act. It was held that what was necessary is to analyse the ingredients of the two offences and not the allegations made in the two complaints. In M/s. P.V. Mohammad Barmay Sons v. Director of Enforcement AIR 1993 SC 1188, it was held:
“The further contention that under the Sea Custom Act for the self same contravention, the penalty proceedings terminated in favour of the appellant, is of little avail to the appellant for the reasons that two Acts operate in different fields, one for contravention of FERA and the second for evasion of excise duty. The mere fact that the penalty proceedings for evasion of the excise duty had ended in favour of the appellant, does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application. In Leo Roy Frey v. Superintendent, District Jail, Amritsar & Anr., AIR 1958 SC 119, proceedings were taken against certain persons in the first instance before the Customs Authorities under Section 167(8) of the Sea Customs Act and heavy personal penalties were imposed on them. Thereafter, they were charged for an offence under Section 120- B IPC. This Court held that an offence under Section 120-B is not the same offence as that under the Sea Customs Act:
“The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.” In A.A. Mulla & Ors. v. State of Maharashtra & Anr., AIR 1997 SC 1441, the appellants were charged under Section 409 IPC and Section 5 of the Prevention of Corruption Act, 1947 for making false panchnama disclosing recovery of 90 gold biscuits on 21-9-1969 although according to the prosecution case the appellants had recovered 99 gold biscuits. The appellants were tried for the same and acquitted. The appellants were also tried for offence under Section 120-B IPC, Sections 135 and 136 of the Customs Act, Section 85 of the Gold (Control) Act and Section 23(1-A) of FERA and Section 5 of Import and Export (Control) Act, 1947. The appellants filed an application before the Judicial Magistrate contending that on the selfsame facts they could not be tried for the second time in view of Section 403 of the Code of Criminal Procedure, 1898 (corresponding to Section 300 Cr.P.C 1973.). SupremeCourt held:
“After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the respective parties, it appears to us that the ingredients of the offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact-situation and the enquiry for finding out facts constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature……. Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC of 1898 as alleged by the appellants." In Union of India & Ors. v. Sunil Kumar Sarkar, AIR 2001 SC 1092, Supreme Court considered the argument that if the punishment had already been imposed for Court Martial proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20 (2) of the Constitution. The Court explained that the Court Martial proceedings deal with penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not over- lap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. In State of Rajasthan v. Hat Singh & Ors. AIR 2003 SC 791, Supreme Court held that as the offence of glorification of Sati under Section 5 of the Rajasthan Sati (Prevention) Act, 1987, is different from the offence of violation of prohibitory order issued under Section 6 thereof, the doctrine of double jeopardy was not attracted for the reason that even if prohibitory order is promulgated, a subsequent criminal act even if falls under Section 5 could not be covered under Section 6(3) of the said Act. Doctrine of double jeopardy is enshrined in Section 300 Cr.P.C (atrefois convict and atrefois acquit). and Section 26 of the General Clauses Act. Both the provisions employ the expression “same offence”.
In State of Haryana v. Balwant Singh, AIR 2003 SC 1253, observing that there may be cases of misappropriation, cheating, defamation etc. which may give rise to prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc. Therefore, it is not always necessary that in every such case the provision of Article 20(2) of the Constitution may be attracted. In Union of India & Anr. v. P.D. Yadav, (2002) 1 SCC 405, this Court dealt with the issue of double jeopardy in a case where the pension of the official, who stood convicted by a Court-Martial, had been forfeited. The Court held:
"This principle is embodied in the well-known maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem causa, meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others….. Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise to prosecution on criminal side and also for action in civil court/ other forum for recovery of money by way of damages etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16
(a) for forfeiting pension, a person is not tried for the same offence of misconduct after the punishment is imposed for a proven misconduct by the General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16 (a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16 (a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases." State of Madhya Pradesh v. Veereshwar Rao Agnihotri, AIR 1957 SC 592, Supreme Court has held that prosecution and conviction or acquittal under Section 409 IPC do not debar trial of the accused on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content.
In Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Anr CRIMINAL APPEAL NO. 645 of 2012
It was held by Supreme court as hereunder :- "the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge." In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC , the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by section 300 of Cr.PC or Article 20 (2). In Radheshyam Kejriwal v. State of West Bengal & Anr., (2011) 3 SCC 581, while dealing with the proceedings under the provisions of Foreign Exchange Regulation Act, 1973, Supreme Court quashed the proceedings (by a majority of 2:1) under Section 56 of the said Act because adjudication under Section 51 stood finalised. The Court held :
“The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases. 362 Crpc General Rule : There is no power of review with the Criminal Court after judgment
has been rendered. The High Court can alter or review its judgment
before it is signed. When an order is passed, it cannot be reviewed.
Section 362 Cr.P.C. is based on an acknowledged principle of law that
once a matter is finally disposed of by a Court, the said Court in the
absence of a specific statutory provision becomes functus officio and is
disentitled to entertain a fresh prayer for any relief unless the former
order of final disposal is set aside by a Court of competent jurisdiction
in a manner prescribed by law. The Court becomes functus officio the
moment the order for disposing of a case is signed. Such an order
cannot be altered except to the extent of correcting a clerical or
arithmetical error. There is also no provision for modification of the
judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa & Ors.,
AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051). Apex Court in Smt.Suraj Devi Vs. Pyare Lal, 1981 SCC (Cri) 188, wherein Apex
Court has held that High Court cannot review an order passed by it on the
criminal side by exercising its inherent powers under section 482 Cr.P.C.
because of the bar contained under section 362 Cr.P.C.A clerical or arithmetical error is an
error occasioned by an accidental slip or omission of the court. It
represents that which the court never intended to say. It is an error
apparent on the face of the record and does not depend for its discovery
on argument or disputation. An arithmetical error is a mistake of
calculation, and a clerical error is a mistake in writing or typing. The process of judgment involves the following stages:
I. Collection of Facts;
II. Time Sequencing of Facts III. Shifting facts from opinions IV. Marshalling of Facts V. Find out the Problems (Charge/Issues) VI. What is the main problem (Charge/Issue) VII. Record of Evidence VIII. Churning of Evidence IX. Shifting of Evidence X. Weighing the different alternatives XI. Apply Precedents XII. Look into Prohibitions XIII. Findings and Conclusions XIV. Order. In Sooraj Devi Vs. Pyare Lal and another reported in AIR 1981 SC 736, the Hon'ble Apex Court observed:-
"that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The Hon'ble Apex Court also observed that the words "otherwise provided by this Code or by any other law for the time being in force" refer to those provision only where the Court has been expressly authorized by the code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke the power can be of no avail."Now it is well settled that the inherent power of the court
cannot be exercised for doing that which is specifically prohibited by
the Code (Sankatha Singh v. State of U.P. [AIR 1962 SC 1208 : 1962
Supp 2 SCR 817 : (1962) 2 Cri LJ 288] ). It is true that the prohibition
in Section 362 against the court altering or reviewing its judgment is
subject to what is “otherwise provided by this Court or by any other
law for the time being in force”. Those words, however, refer to those
provisions only where the court has been expressly authorised by the
Code or other law to alter or review its judgment. The inherent power
of the court is not contemplated by the saving provision contained in
Section 362 and, therefore, the attempt to invoke that power can be of
no avail.
Recall is different from review of the judgment : - Calcutta High Court (Appellete Side)
Pravash Chandra Sarkar vs Unknown on 26 February, 2014 "Relevantly, the work alter or 'review' as appearing under Section 362 of the Code of Criminal Procedure is of extreme significance. The word 'alter' means 'to change or replace' whereas the word 'review' means 'a view already taken earlier is given second thought or a second or additional study or consideration of certain facts etc. or reexamination'. In case of both 'alter' and 'review', there is existence of one fact or aspect, which are replaced by altering or reviewing or reexamination. Therefore, the existence of the aspect remains but the word 'recall' means to call back or to cancel or revoke. The existence of a particular aspect from a particular place is taken back creating a void condition and leaving nothing in the place wherefrom the matter has been recalled. 'Recall' is not equal to 'alter' or 'review'. So, In case of 'alter' or 'review' something available in the original position. But in case of 'recall' nothing is available in changed circumstances in the original position. Therefore, the term 'recall', in my humble opinion, may not come within the rigours of Section 362 of the Code of Criminal Procedure which relates to alteration or review of a final order. In Vishnu Agarwal Vs. State of U.P. and Another an unreported decision 2011 STPL (WB) 171 SC collected from the webside of the Honourable Apex Court the Honourable Apex Court observed that:-
"it often happens that some times a case is not noted by the Counsel or his clerk in the cause list and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 02.09.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 02.09.2003 which has been challenged in the Honourable Apex Court was maintained on the ground that Section 362 cannot be considered in a rigid and over-technical, manner to defeat the ends of justice and that the application filed by the petitioners was for recall of the order and not for review or alter of the same."
Moreover, in R. Rajeshwari Vs. H.N. Jagadish Hon'ble Apex Court Held:-
"In view of specific bar created under Section 362 in regard to exercise of jurisdiction of High Court to review its own order, held, ordinarily exercise of jurisdiction under Section 482 would be unwarranted - Only in some rare cases, High Court may do so where a judgement has been obtained from it by practising fraud - Herein, such a case has not been made out." In Sahadeo v. Jagannath, AIR 1950 Nagpur 77: (1950 (51) Cri LJ
662), the appeal was dismissed for non-filing of a copy of the judgment.
It was held that the order rejecting the appeal cannot be held to be an
order amounting to a judgment within the meaning of Section 369 (it corresponds to section 362 of the present Cr.Pc) of theCode of 1898 and there was no bar to the consideration of the appeal on its merits. In Ibrahimsab vs. Faridabi; ILR 1986 Karnataka 2251, the Karnataka High Court has held as under :
"Section 362 Cr.P.C. contemplates judgment and final order disposing of the case. The expressions 'final order disposing of the case' mean a considered order on merits and not an order of dismissal for default and the provisions, therefore, do not come in the way of the Court (Sessions Judge) recalling such order and restoring the revision dismissed for default. The Sessions Judge was, therefore, not justified in dismissing the application made for re-admitting the revision dismissed for default. The petitioner has given satisfactory explanation for not being present on the particular date when the revision came up for hearing. In K. G. Keralakumaran Nair vs. State of Kerala and other; 1995
CRI. L. J. 2319, the Kerala High Court has held as under: The Section relates only to judgment or final order disposing of a case.
What is a judgment or a final order is not seen defined in the Code But
the word 'judgment' is understood to mean an order in a trial terminating
in either conviction or acquittal of the accused. It has also been held that
judgment means the expression of opinion of the Court arrived at after
due consideration of the evidence and all the arguments. Understood in
this light, every order under the provisions of the Code cannot be
considered to be a judgment within the meaning of Section 353 or
coming under the scope of Section 362, of the Code. In short, there must
be an investigation of the merits on evidence and after hearing
arguments in order to constitute a judgment. In the case of an appeal,
such judgment has to be one rendered on merits after hearing counsel for
appellant or the appellant, as the case may be, and Public Prosecutor or
counsel appearing for respondent. In the case of State of Punjab vs. Davinder Pal Singh Bhullar and others; 2012 Cri. L. J. 1001 SC, Hon'ble the Apex Court has held as under :
"If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault" Allahabad High Court
Jawahar Lal @ Jawahar Lal Jalaj vs The State Of U.P Thru Cbi/Acb ... on 5 August, 2015 Principles that can be gathered after discussing catena of case laws on point : - Court has power to dismiss an appeal or any other
criminal proceeding for default and this Court has also the power to
restore such proceeding on sufficient grounds being shown for non-
appearance. But the right of dismissal and the power of restoration can
be exercised only by High Court, and that too in exercise of the powers
under Section 482 of the Code, and not by any of the Courts subordinate
to this Court since those courts have no inherent powers envisaged under
Section 482 of the Code.
The point formulated is answered thus:-
i. A Criminal Appeal shall be disposed of only after perusing the record
and hearing the appellant or his pleader, if he appears and the Public
Prosecutor, if he appears.
ii. A criminal appeal can be decided on merits, only after hearing the
appellant or his counsel.
iii. The High Court has powers under Section 482 of the Code of
Criminal Procedure to dismiss an appeal or revision or any other
criminal proceeding for default or non-prosecution.
iv. The High Court has also inherent power to restore any matter
dismissed for default or non-prosecution on sufficient reason being
shown.
v. The power of dismissal for default and the power of restoration inhere
only in the High Court and cannot be exercised by the Courts
subordinate to the High Court since they do not possess the inherent
powers under Section 482 of the Code. The inherent power under section 482 Cr.P.C. can be exercised
to give effect to any order under Cr.P.C. or to prevent the abuse of the
process of any court or otherwise to secure the ends of justice. Certainly,
if the application has been dismissed for default, that cannot be termed
as 'judgement'. Having discussed the various case laws , the court ruled :- if the application has been dismissed for default, that cannot be termed as 'judgement'.
Accordingly, the bar as provided by section 362 Cr. P.C. shall not be applicable. This court has power to dismiss in default any application or writ petition and at the same time has also power to restore such proceedings on sufficient grounds being shown for non-appearance provided it appears to the court that default was not wilful and it was accidental. There are instances, where either legal advise is given or due to shrewd character of the litigant malafide efforts are adopted with a view to delay the proceedings of the case, such tactics are also adopted to get the case dismissed in default and then to move application for restoration and thus, lingering on the proceedings. Certainly, such practice must be carved out and should not be permitted to continue. In Raghuvera and others vs. State of U.P.; 1990 CRI.L.J. 2735
(All.), Hon'ble Allahabad High Court has held as under :
"It is no doubt true that Section 362 Cr. P.C. debars the court from
altering or reviewing any final order or judgment given by a court
except to correct the clerical or arithmetical error. But the question arises
whether an order dismissing an application for revision for default of the
counsel as not pressed can be termed as a judgment or final order? The
term "Judgment" has not been defined in the Criminal Procedure Code
but a judgment means the expression of the opinion of the Court arrived
at after due consideration of the entire material on record, including the
arguments, if any, advanced at the Bar. A final order or judgment can
only be passed in a criminal court when the court applies its mind to the
merit of the case. In case the order is passed in a criminal proceeding
and the application for revision is dismissed for default as not pressed,
the said order cannot be taken as either final order or a judgment. Thus
Section 362 Cr. P.C. is no bar to review ore alter the order dated 14th
March 1990. The order in question was passed without going into the
merit of the case and is without jurisdiction and as such it has to be set
aside." Order can be recalled (even by trial court) if its vitiated by fraud :- Case :- CRIMINAL REVISION No. - 477 of 2006 Bimal Kumar S/o Arun Kumar Dixit and others V. State of U.P. through Principal Secretary and others:- Power of Section 362 Cr.P.C. are defined but at the same
time when a fraud is played upon the Court, Court cannot
became a silent spectator. Even for the sake of argument it is
expected that the learned trial court was not having such power
than this Court in exercise of inherent power also can quash the
earlier judgment of the learned trial court which was obtained
by the accused after playing fraud upon the court. It is a case
where the bar of section 362 Cr.P.C. would not come into play. The Hon'ble Supreme Court in R.Rajeshwari vs. H.N.Jagdish, 2008 (4) SCC 82 while considering the effect and scope of Section 362 and Section 482 held in para 15 that although a specific bar has been created in regard to exercise of the jurisdiction of the High Court to review its own order and ordinary exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted but in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud on it. Patch Vs. Ward [1867 (3) L.R. Chancery Appeals
203], Sir John Rolt, L.J. held that:
"Fraud must be actual positive fraud, a meditated
and intentional contrivance to keep the parties
and the Court in ignorance of the real facts of the
case, and obtaining that decree by that
contrivance."
34. Hon’ble Apex Court in Bhaurao Dagdu Paralkar Vs.
State of Maharashtra & Ors. [2005 (7) SCC 605] held
that:
"Suppression oJf a material document would also
amount to a fraud on the court. Although,
negligence is not fraud, it can be evidence of
fraud." S. P. Chengalvaraya Naidu (Dead) by LRS. vs.
Jagannath (Dead) by LRS and Ors. (1994)1 Supreme
Court Cases 1; it was held as under:
“Fraud avoids all judicial acts, ecclesiastical or
temporal” observed Chief Justice Edward Coke of
England about three centuries ago. It is the settled
proposition of law that a judgment or decree obtained
by playing fraud on the court is a nullity and non est
in the eyes of law. Such a Judgment/decree-by the
first court or by the highest court- has to be treated
as a nullity by every court, whether superior or
inferior. It can be challenged in any court even in
collateral proceedings.” ( Union of India vs. Ramesh Gandhi 2012 (1)
Ramesh SCC 476 reiterated the same principle) Hamza Haji vs. State of Kerala and Another (2006)
7 SCC 416, the Apex Court has placed reliance upon the
judgment of Full Bench of the Bombay High Court in Guddappa
Chikkappa Kurbar vs. Balaji Ramji Dange AIR 1941, Bom 274
wherein it was held that; ‘No court will allow itself to be used as an instrument of fraud, and no court, by the application of rules
of evidence or procedure, can allow its eyes to be closed to the
fact that it is being used as an instrument of fraud." in A.V. Papayya Sastry and Ors. Vs.
Government of A.P. and Ors., AIR 2007 SC 1546, this
Court reviewed the law on this position and reiterated the
principle. In paras 38 and 39 it was held as follows:
38. The matter can be looked at from a different
angle as well. Suppose, a case is decided by a
competent Court of Law after hearing the parties
and an order is passed in favour of the
applicant/plaintiff which is upheld by all the courts
including the final Court. Let us also think of a case
where this Court does not dismiss Special Leave
Petition but after granting leave decides the appeal
finally by recording reasons. Such order can truly
be said to be a judgment to which Article 141 of
the Constitution applies. Likewise, the doctrine of
merger also gets attracted. All orders passed by
the courts/authorities below, therefore, merge in
the judgment of this Court and after such
judgment, it is not open to any party to the
judgment to approach any court or authority to
review, recall or reconsider the order.
39. The above principle, however, is subject to
exception of fraud. Once it is established that the
order was obtained by a successful party by
practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with
law. It is non- existent and non est and cannot be
allowed to stand. This is the fundamental principle
of law and needs no further elaboration. Therefore,
it has been said that a judgment, decree or order
obtained by fraud has to be treated as nullity,
whether by the court of first instance or by the
final court. And it has to be treated as nonest by
every Court, superior or inferior.If a judgment obtained by playing fraud on the Court
is a nullity and is to be treated as non est by every Court,
superior or inferior, it would be strange logic to hear that
an enquiry into the question whether a judgment was
secured by playing fraud on the Court by not disclosing
the necessary facts relevant for the adjudication of the
controversy before the Court is impermissible. From the
above judgments, it is clear that such an examination is
permissible. Such a principle is required to be applied
with greater emphasis in the realm of public law
jurisdiction as the mischief resulting from such fraud has
larger dimension affecting the larger public interest. In Corpus Juris Secundum, Volume 49, paragraph 265,
it is acknowledged that,
"Courts of record or of general jurisdiction have
inherent power to vacate or set aside their own
judgments".
In para 269, it is further stated:
"Fraud or collusion in obtaining
judgment is a sufficient ground for
opening or vacating it, even after the
term at which it was rendered, provided
the fraud was extrinsic and collateral to
the matter tried and not a matter
actually or potentially in issue in the
action.”
It is also stated:
"Fraud practiced on the court is always
ground for vacating the judgment, as
where the court is deceived or misled as
to material circumstances, or its process
is abused, resulting in the rendition of a
judgment which would not have been
given if the whole conduct of the case
had been fair.”
In American Jurisprudence, 2nd Edition, Volume
46, para 825, it is stated:
"Indeed, the connection of fraud with a judgment
constitutes one of the chief causes for
interference by a court of equity with the
operation of a judgment. The power of courts of
equity in granting such relief is inherent, and
frequent applications for equitable relief against
judgments on this ground were made in equity
before the practice of awarding new trials was
introduced into the courts of common law. Kinch Vs. Walcott [1929
APPEAL CASES 482] that it would be in the power of a
party to a decree vitiated by fraud to apply directly to the
Court which pronounced it to vacate it. According to Kerr:
"In order to sustain an action to impeach a
judgment, actual fraud must be shown; mere
constructive fraud is not, at all events after long
delay, sufficient... but such a judgment will not be
set aside upon mere proof that the judgment was
obtained by perjury." (See the Seventh Edition,
Pages 416-417)
In a recent judgment of this Court reported in State of Jharkhand V. Lalu Prasad Yadav 2017 (8) SCC 1 this Court conducted a survey of earlier case law and this is what the court inter alia held:
“40.8 In Monica Bedi v. State of A.P.;2011 (1) SCC 284, this Court considered the meaning of the expression “same offence” employed in Article 20(2) and observed that second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. This Court has observed thus: (SCC pp. 293 & 295, paras 26 & 29) “26. What is the meaning of the expression used in Article 20(2) “for the same offence”? What is prohibited under Article 20(2) is, that the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.
29. It is thus clear that the same facts may rise to different prosecutions and punishment and in such an event the protection afforded by Article 20(2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence.”
In State (NCT of Delhi) V. Sanjay 2014 (9) SCC 772, a criminal prosecution was launched under the Indian Penal Code and/or Mines and Minerals (Development & Regulation) Act 1957 (hereinafter called ‘MMDR Act’) for mining from river beds without valid licence and permits under the latter Act. There was no complaint from the authorised officer under the Act. This Court took the view that the ingredients constitute the offence under the MMDR Act and the ingredients of dishonestly removal of sand and gravel from the river bed without the consent which is the property of the State is a distinct offence under the Indian Penal Code, therefore, the Magistrate on receipt of the Police Report for the commission of the offence under Section 378 IPC can take cognizance without awaiting the complaint which may be filed by the authorised officer under the MMDR Act. The court inter alia held as follows:
“52. It is a well-known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offence are distinct.” ( reiterated by Supreme Court of India Department Of Customes vs Sharad Gandhi Proprietor on 27 February, 2019)