T.P. GOPALAKRISHNAN versus STATE OF KERALA on 8 December 2022

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SUPREME COURT REPORTS

[2022] 14 S.C.R.

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T.P. GOPALAKRISHNAN

v.

STATE OF KERALA

(Criminal Appeal Nos.187-188 of 2017)

BDECEMBER 08, 2022

[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]

Constitution of India: Art.20(2) – Protection against doublejeopardy – Code of Criminal Procedure – s.300 – ‘Same offence’Cmeaning of – Appellant-accused worked as Agricultural officer forthe period 31.05.1991 to 31.05.1994 – Accusations against himwas that he committed criminal breach of trust and misappropriatedcertain amount in his official position as a public servant, by notremitting the same to the sub-treasury – Accusations related to timeperiod from 27.04.1992 to 25.08.1992 and 01.03.1993 toD12.04.1994 – Trial Court convicted the appellant for offences u/ss.13(2) r/w 13(1)(c) of the PC Act and s.409 IPC – High Courtupheld the conviction – Appellant contended inter alia that presentcases are barred u/s.300 CrPC as he was already prosecuted inprevious three cases pertaining to the same allegations wherein heEwas convicted in two cases and acquitted in one case – On appeal,held: There are three conditions for application of Art. 20(2) –Firstly, previous proceedings before a court of law or a judicialtribunal of competent jurisdiction in which the person must havebeen prosecuted, the prosecution must be valid and not null orabortive – Secondly, conviction or acquittal in the previousFproceedings must be in force at the time of the second proceedingsin relation to the same offence and same set of facts, for which hewas prosecuted and punished in the first proceedings – Thirdly, thesubsequent proceeding must be a fresh proceeding, where he is forthe second time, sought to be prosecuted and punished for the sameGoffence and same set of facts – ‘Same offence’ means where theoffences are not distinct and the ingredients of the offences areidentical – Embargo of double jeopardy u/Art.20 does not applywhere there are two distinct offences made up of different ingredientsthough offences may have some overlapping features – The chargesin the present case are for relevant period from 27.04.1992 toH

25.08.1992 and 01.03.1993 to 12.04.1994 which time period issame as in the previous three cases, that is 28.02.1994 to 02.04.1994,15.12.1992 to 31.03.1993 and 05.03.1994 to 08.03.1994 – Presentcases pertain to same set of facts and are in respect of same periodof misappropriation – The matter in the previous three cases andthe present cases relate to same offences which are committed in thecourse of same transaction while holding the one and same post ofAgriculture officer by the appellant – Charges in the previous threecases were framed after the audit and the prosecution would havebeen well aware of the misappropriation in respect of present cases– Since, appellant has already been prosecuted in the year 1999 inrespect of previous three cases, the trial court as well as High Courtwas not right in convicting and sentencing the accused – Embargoof double jeopardy u/s. 300 applied to the facts of the case –Prevention of Corruption Act, 1988 – Penal Code, 1860.

Code of Criminal Procedure, 1973: s.300(2) – Subsequentprosecution for any distinct offence – Failure to take prior consentof State Government – Effect thereof – Held: When the charge ofthe second trial is for distinct offence, the trial is not barred – Aperson acquitted or convicted of any offence may be tried for adistinct offence for which a separate charge might have been framedwith the prior consent of the State Government – In the instant case,even if the allegations are different from those in the previous cases,the prosecution having failed to obtain the prior consent of theState Government, the trial is unlawful.

Code of Criminal Procedure, 1973: Double jeopardy anddouble punishment – Difference between – Double punishment mayarise when a person is convicted for two or more offences chargedin one indictment – However, the question of double jeopardy arisesonly when a second trial is sought on subsequent indictment fowlinga conviction or acquittal on an earlier indictment – Doctrine ofdouble jeopardy is not a protection to the individual from peril ofsecond sentence or punishment, nor to the service of sentence forone offence – It is a protection against double jeopardy for thesame offence that is, against a second trial for the same offence Constitution of India – Art. 21 – Right to life and Liberty –Scope of – Right to live includes within its ambit the right to livewith dignity – Protection against the double jeopardy is also included AB

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Aunder the scope of Art. 21 – Prosecuting a person for the sameoffence in same series of facts, for which he has previously eitherbeen acquitted or has been convicted and undergone thepunishment, affects the person’s right to live with dignity – Doublejeopardy.BDoctrines/Principles: Doctrine of double jeopardy –Application thereof – Discussed – Maxim nemo deber bis vexari, sicostest curiae quod sit pro una et eadem causa.

Allowing the appeals, the Court

HELD: 1. Section 300 of the CrPC is based on the maximCnemo deber bis vexari, si costest curiae quod sit pro una et eademcausa which means that a person cannot be tried a second timefor an offence which is involved in an offence with which he waspreviously charged. In order to bar the trial of any person alreadytried, it must be shown that: (i) He has been tried by a competentDcourt for the same offence or one for which he might have beencharged or convicted at a trial, on the same facts, (ii) He hasbeen convicted or acquitted at the trial, and (iii) Such convictionor acquittal is in force. [Para 23][495-B-D]

2. Article 20(2) of the Constitution of India incorporatesEwithin its scope, the plea of autrefois convict, meaning, previouslyconvicted as known to British jurisprudence, or the plea of doublejeopardy known to the American Constitution. However, the saidconcepts are circumscribed in Article 20(2) which provides thatthere should be not only a prosecution but also punishment inthe first instance in order to operate as a bar to a secondFprosecution and punishment for the same offence. On a plainreading the of sub clause (2) of Article 20, it is clear that the saidprovision bars a second prosecution only where the accused hasbeen both prosecuted and punished for the same offencepreviously. [Para 26][495-G-H; 496-A-B]G3. There are three conditions for the application of theclause. Firstly, there must have been previous proceeding beforea court of law or a judicial tribunal of competent jurisdiction inwhich the person must have been prosecuted. The saidprosecution must be valid and not null and void or abortive.

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Secondly, the conviction or acquittal in the previous proceedingmust be in force at the time of the second proceeding in relationto the same offence and same set of facts, for which he wasprosecuted and punished in the first proceeding. Thirdly, thesubsequent proceeding must be a fresh proceeding, where he is,for the second time, sought to be prosecuted and punished forthe same offence and same set of facts. In other words, the clausehas no application when the subsequent proceeding is a merecontinuation of the previous proceeding, for example, where anappeal arises out of such acquittal or conviction. In order to sustaina plea of double jeopardy, it must be shown that all the aforesaidconditions of this clause are satisfied. [Para 27][496-C-F]

4. Section 300 of the CrPC and Article 20 of the Constitutionof India use the term ‘same offence’. Before dealing with theissue at hand, it is necessary to understand what the term ‘sameoffence’ means and includes. The term ‘same offence’ in simplelanguage means, where the offences are not distinct and theingredients of the offences are identical. Where there are twodistinct offences made up of different ingredients, the embargounder Article 20 of the Constitution of India, has no application,though the offences may have some overlapping features. Thecrucial requirement of Article 20 is that the offences are the sameand identical in all respects. [Para 28][496-F-H]

5. The concept of double jeopardy can also be understoodin terms of Article 21 of the Constitution. Protection againstdouble jeopardy is also included under the scope of Article 21 ofthe Constitution of India. Prosecuting a person for the sameoffence in same series of facts, for which he has previously eitherbeen acquitted or has been convicted and undergone thepunishment, affects the person’s right to live with dignity. Doublejeopardy is often confused with double punishment. There is avast difference between the two. Double punishment may arisewhen a person is convicted for two or more offences charged inone indictment however, the question of double jeopardy arisesonly when a second trial is sought on a subsequent indictmentfollowing a conviction or acquittal on an earlier indictment. Thisdoctrine is certainly not a protection to the individual from peril AB

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Aof second sentence or punishment, nor to the service of asentence for one offence, but is a protection against doublejeopardy for the same offence that is, against a second trial forthe same offence. [Paras 29 and 30][497-A-F]

6. The appellant was earlier charged for offences underBSection 13(1)(c) read with Section 13(2) of the Act and Sections409 and 477A of the IPC and was convicted in two cases andacquitted in one case. The present two cases arise out of thesame set of facts and the same transaction as that in the previousthree cases wherein the appellant was tried and convicted/acquitted respectively. For an offence to be considered as theC‘same offence’ as the last offence, it is necessary to show that theoffences are not distinct and the ingredients of the offences areidentical. The previous charge as well as the present charge isfor the same period of misappropriation. The matter of offencesin all the previous three cases and the present case are the sameDand are said to be committed in the course of same transactionwhile holding the one and same post of Agricultural Officer bythe appellant. [Para 37][500-B-D]

7. The Trial Court has erred in holding that the facts ofprevious case and misappropriation committed by the accusedEare not the same as the facts relevant to present case. The chargesin the present case are for relevant period from 27.04.1992 to25.08.1992 and 01.03.1993 to 12.04.1994 which time period issame as in the previous three cases, that is, 28.03.1994 to02.04.1994, 15.12.1992 to 31.03.1993 and 05.03.1994 to08.03.1994 respectively. Thus, it can be said that the presentFcases pertain to the same set of facts and are in respect of sameoffences, for the same period, committed in the same capacity asthe previous three cases wherein the appellant herein was alreadyprosecuted in the year 1999. The core allegation in all these fivecases pertains to misappropriation by making false entries in theGcash book. The allegation of the prosecution that two-thirds ofthe auction amount was not remitted to the treasury would becovered under the allegations of misappropriation of funds, thatthe appellant has already been prosecuted for in the year 1999.The appellant is right in contending that the charge in the first H

three cases were framed on 17.08.1999 which is much after theaudit and the prosecution would have been well aware of themisappropriation in respect of the present cases on 17.08.1999.[Para 38][500-E, G-H; 501-A-C]

8. The allegations/offences in the instant cases are the sameas the allegations/offences in the previous three cases, thereforeas per the mandate under Section 300(2) of the CrPC, the consentof the State Government is necessary. Even if it is assumed forthe sake of argument that the allegations are different in presentcases from those in the previous cases, the prosecution has failedto obtain the prior consent of the State Government necessary toprosecute the accused-appellant and therefore the trial in theinstant case is unlawful. [Para 39][501-D-F]

S.A. Venkataraman v. Union of India AIR 1954 SC 375: [1954] SCR 1150; Maqbool Hussain v. State ofBombay AIR 1953 SC 325 : [1953] SCR 730; ManekaGandhi v. Union of India 1978 AIR 597 : [1978] 2SCR 621; Vijayalakshmi v. Vasudevan (1994) 4 SCC656; Thakur Ram v. State of Bihar AIR 1966 SC 911 :[1966] 2 SCR 740; State (N.C.T. of Delhi) v. NavjotSandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79– relied on.

From the Judgment and Order dated 13.06.2016 of the High Courtof Kerala at Ernakulam in Crl. A. Nos.947 and 948 of 2009.

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AAdolf Mathew, Sanjay Jain, Advs. for the Appellant.

C. K. Sasi, Abdulla Naseeh V. T., Ms. Meena K. Poulose, Advs.for the Respondent.

The Judgment of the Court was delivered by BNAGARATHNA, J.

1. These Criminal Appeals have been filed assailing the impugnedjudgment and order dated 13.06.2016 passed by the High Court of Keralaat Ernakulam in Criminal Appeal Nos. 947 and 948 of 2009 by which thejudgment of conviction and order of sentence dated 27.04.2009 passedCin C.C. No.24 and 25 of 2003 by the Court of the Enquiry Commissionerand Special Judge, Kozhikode (‘Trial Court’, for the sake of convenience)has been upheld by dismissing the aforesaid appeals and consequentlyconfirming the conviction of the appellant herein.

2. For the sake of convenience, the parties shall be referred to asDper their rank before the Trial Court.

3. The Trial Court vide its judgment and order dated 27.04.2009in both the aforesaid cases convicted the appellant herein-accused foroffences under Section 13(2) read with Section 13(1)(c) of the Preventionof Corruption Act, 1988 (‘the Act’, for short) and sentenced him toEundergo rigorous imprisonment for two years and to pay a fine of RupeesTwo Thousand and in default thereof, to undergo rigorous imprisonmentfor six months. The accused was further convicted for the offence underSection 409 of the Indian Penal Code, 1860 (‘IPC’ for short) andsentenced to undergo rigorous imprisonment for two years and to pay afine of Rupees Two Thousand and in default thereof, to undergo rigorousFimprisonment for six months. The sentences were directed to runconcurrently.

4. The appellant herein was released on bail vide order of thisCourt dated 30.01.2017 subject to fulfilment of the conditions imposedby the Trial Court.G

Facts of the Case:

5. Succinctly stated, the case of the prosecution in C.C. No. 24 of2003 is that while the accused was working as Agricultural Officer,State Seed Farm, Perambra, for the period 31.05.1991 to 31.05.1994, heabused his official position as a public servant and committed criminalH

breach of trust and misappropriated an amount of Rs.20,035/-, duringthe period from 27.04.1992 to 25.08.1992, by not remitting the same tothe Sub-Treasury, Perambra. The amount included Rs.17,449/-, beingtwo-thirds of the proceeds received from the auction of 5510 coconutsharvested and auctioned on 28.05.1992 at the State Seed Farm, Perambra;Rs.2,098/- being two-thirds of the proceeds from the auction of 1049kgs of half-filled grains auctioned on 28.05.1992; and Rs.488.80/- beingthe price of 104 coconuts harvested from the State Feed Farm, Permbraon 24.08.1992 and 25.08.1992 respectively.

6. The case of the prosecution in C.C. No.25 of 2003 is that whilethe accused was working as Agricultural Officer, State Seed Farm,Perambra, from 31.05.1991 to 31.05.1994, abused his official position asa public servant and committed criminal breach of trust andmisappropriated an amount of Rs.58,671/- during the period from01.03.1993 to 12.04.1994, being auction proceeds from the sale of 11,109coconuts harvested from State Seed Farm, Perambra, auctioned on23.07.1993; Rs. 12,290/- being the proceeds from the auction of 6,046coconuts; Rs.11,844/- being the proceeds from the auction of 3,883coconuts harvested from State Seed Farm, Perambra; Rs.654/- beingthe price of 160 coconuts harvested on 13.02.1992, 07.04.1993,17.03.1994 and 12.04.1994, by not accounting for them and has therebycommitted the aforesaid offences under Section 13(1)(c) read with Section13(2) of the Act and Section 409 of the IPC.

7. It is prosecution’s case that prior to registration of these twocases against the accused, three other cases, being C.C. No. 12 of 1999,C.C. No. 13 of 1999 and C.C. No. 14 of 1999 were registered againsthim. In May 1994, a surprise inspection was carried out in the StateSeed Farm, Perambra and the inspection team found that the cash bookwas not properly maintained and that the Agricultural Officer receivedamounts from the Treasury. The inspection report was submitted to theDirector of Agriculture. On the basis of the said report, an enquiry wasconducted by the vigilance department and a criminal case was registeredagainst the accused on 05.02.1996. On completion of investigation, theVigilance and Anti-Corruption Bureau submitted three reports and C.C.No. 12 of 1999 (for offences committed for the period between 28.03.1994and 02.04.1994); C.C. No. 13 of 1999 (for offences committed for theperiod from 15.12.1992 to 31.03.1993) and C.C. No. 14 of 1999 (foroffences committed for the period from 05.03.1994 to 08.03.1994) were A

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Aregistered against the accused under Section 13(1)(c) read with Section13(2) of the Act and Sections 409 and 477A of IPC. The AccountsOfficer conducted an audit in the State Seed Farm, pertaining to theperiod from 31.05.1991 to 31.05.1994 and gave a report. On the basis ofthe same, the two cases, out of which this appeal arises, were registeredagainst the appellant herein. The FIR in respect of the present casesBwas registered on 03.12.2001. It is prosecution’s case that it was in there-audit, that these instances were unearthed and therefore the two cases,C.C. No.24/2003 and C.C. No.25/2003, were registered against theappellant herein.

8. Charges were framed against the accused for the said offencesCon 30.06.2007 and the same were read over and explained to the accusedto which the accused pleaded ‘not guilty’ and claimed to be tried. Theaccused filed an application for joint trial, being CMP No. 1019 of 2008which was allowed and therefore both the cases were tried together.The prosecution examined a total of 13 witnesses. Thereafter, statementsDof the accused under Section 313 of the Code of Criminal Procedure,1973 (‘CrPC’, for short) were recorded. The accused denied theallegations and submitted that he was innocent and had been falselyimplicated.

9. It was the appellant’s case before the Trial Court and the HighECourt that during the period in question, he had additional charge ofsome other farms and had to heavily depend on his subordinates at theoffice to conduct the affairs of the State Seed Farm, Perambra. Theappellant contended that he did not misappropriate any amount from thefarm and has not committed any offence as alleged by the prosecution.FFindings of the Trial Court:

10. The Trial Court vide judgment dated 27.04.2009, on consideringthe evidence of record convicted the accused for the offences underSections 13(1)(c) read with Section 13 (2) of the Act and Section 409 ofthe IPC, holding that the accused misappropriated an amount of Rs.78,706/G-, being two-thirds of the auction proceeds, without remitting it to thetreasury during the period from 27.04.1992 to 25.08.1992 and from01.03.1993 to 12.04.1994. The salient findings of the Trial Court can beepitomised as under:

i.That it could be seen from the Attendance Register (Ext.P22) that the accused was an Agricultural Officer at theH

T.P. GOPALAKRISHNAN v. STATE OF KERALA[B. V. NAGARATHNA, J.]

State Seed Farm, Perambra, during the period in question.The accused has also admitted the same in his statementunder Section 313 of the CrPC.

ii.That perusal of documents such as posting order of theaccused as Agricultural Officer (Ext.P2), copy of report oftransfer of charge of the accused (Ext.P3) and file containingposting details of the accused (Ext.P4) would prove thatthe accused was working as an Agricultural Officer in theState Seed Farm from 31.05.1991 to 31.05.1994, beyondany reasonable doubt.

iii.That the accused was removed from service at the time offiling of the chargesheet, therefore there was no need forsanction under Section 19 of the Act.

iv.That the accused conducted auction of agricultural productsof the State Seed Farm, Perambra and collected one-thirdof auction amount on the date of auction itself. Receipt forthe said amount was issued to the successful bidder. Aftercollecting the remaining two-thirds amount, the articles wereto be delivered to the auction purchaser. On 28.05.1993,5510 coconuts were harvested and auctioned. The two-thirds of the auction amount was Rs.17,449/. The accuseddid not remit the said amount after collecting the same fromthe auction purchaser.

v.That Rs.2,098/- being two-thirds of the proceeds from theauction of 1049 kgs of half-filled grains auctioned on thesame date and Rs.488.80/- being the price of 104 coconutsharvested on 24.08.1992 and 25.08.1992 were also notremitted to the Sub- Treasury and the accused hadmisappropriated the said amounts for his own gain. Similarly,an amount of Rs.58,671/- was misappropriated by theaccused from the auction proceeds of coconuts harvestedfrom the State Seed Farm, Perambra from 01.03.1993 to12.04.1994.

vi.That the charges levelled in the present two cases werefor the period from 27.04.1992 to 25.08.1992 and from01.03.1993 to 12.04.1994. In the previous case, the accusedhad misappropriated some amount to be paid to the A

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AProprietor, Agricultural Marketing Corporation, Kozhikode;Kerala State Coir Marketing Corporation, Kozhikode, fromthe State Seed Farm, Perambra by falsifying and forgingthe records. That the accused also misappropriated someamounts to be paid to Kerala State Cooperative MarketingFederation, Kozhikode. The said amounts were neitherBaccounted in the cash book, nor were they disbursed to thebeneficiaries. However, in the present case, after conductingthe auction of coconuts and half-filled grains, two-thirds ofthe auction proceeds collected from the successful bidderswere not remitted to the treasury. Therefore, the period ofCmisappropriation and the nature of the offences committedby the accused in the previous three cases and the presenttwo cases were entirely different. The accused was thusconvicted under Section 13(2) read with Section 13(1)(c)of the Act.

Dvii.That the accused was the custodian of the cash, cash chest,cash book and other documents as the Agricultural Officer,State Seed Farm, Perambra and during his tenure andcapacity as a public servant, he misappropriated theaforesaid amount for his own gain. The accused wasEtherefore held to have committed breach of trust in respectof the property and thus convicted under Section 409 of theIPC.

11. Being aggrieved by the judgment of conviction and sentencepassed by the Trial Court, the appellant-accused preferred Criminal AppealFNos. 947 and 948 of 2009 before the High Court, assailing the judgmentof the Trial Court. The said appeals were dismissed by the commonimpugned judgment dated 13.06.2016 and the conviction was upheld.However, the High Court reduced the sentence of rigorous imprisonmentfor two years, to rigorous imprisonment of one year. The pertinent findingsof the High Court can be noted as under:G

i.That admittedly, the instances pointed out in these two caseswere not included in the earlier three cases registered againstthe appellant. That it was during the audit for the periodfrom 23.12.1997 to 27.12.1997 that these instances wereunearthed and the present cases were registered.H

T.P. GOPALAKRISHNAN v. STATE OF KERALA[B. V. NAGARATHNA, J.]

ii.That it was an admitted fact that the records did not showAthat the amounts involved in the present two cases wereremitted to the Sub-Treasury.

iii.That evidence of PW11 established that she assumed chargeon 04.06.1994. While working as an Agricultural Officer atKrishi Bhavan, Kayanna, she had to assume additionalBcharge as the Agricultural Officer, Seed Farm, Perambra.As per her statement, at the time when she assumed chargein the presence of the Joint Director of Agriculture and theDeputy Director of Agriculture, she had not taken possessionof the documents or properties of the office at the SeedFarm at Perambra since no such documents were availableCat the office.

iv.That as per the statement of PW4 who assumed charge asan Agricultural Officer at the State Seed farm, Perambrafor the period from 07.06.1994 to 24.04.1997, he did notreceive any cash book for the period from 10.02.1992 to11.03.1994. The appellant herein entrusted the cash bookfor the period from 12.03.1994 to 03.06.1994 and cashbalance of Rs.2,763/- after PW4 took charge. That fromthe evidence of PW4, it was clear that he did not get thecash book at the time of taking charge and only after heassumed charge, the appellant entrusted to him the cashbook and the cash balance. When there is no challengewith regard to the fact that the appellant had handed overthe cash book for the period from 12.03.1994 to 03.06.1994,it goes without saying that he had never handed over theearlier cash book. No further proof was required.

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v.That as a responsible gazetted officer, the appellant oughtto have exercised more caution and therefore, could notwash his hands off by stating he was dependent on hissubordinate staff, since he had additional charge of otherfarms also. He ought to have kept the cash book andmaintained it properly and made timely entries. The appellantclearly removed the cash book and did not return the samefor the period from 10.02.1992 to 11.03.1994.

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12. Aggrieved by the judgment of conviction and sentence passedby the Courts below, the appellant has knocked on the doors of thisCourt by preferring the present appeals.

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A13. We have heard Sri Adolf Mathew, learned counsel for theappellant-accused and Sri C.K. Sasi, learned counsel for the respondent-State and perused the material on record.

Submissions of the parties:

14. Learned counsel for the appellant herein-accused at the outsetBsubmitted that the High Court was not right in confirming the judgmentof conviction and sentence passed by the Trial Court and the impugnedjudgments suffer from legal as well as factual infirmities and the findingstherein are perverse and are liable to be set-aside, and the appellant isliable to be acquitted. The submissions of the learned counsel for accusedCare summarised as under:

14.1That the accused is a public servant. Section 197(1) of theCrPC requires sanction of the State Government beforetaking cognizance of offence against public servants suchas the accused.

D14.2That the entire prosecution proceedings in the present casesare barred by Section 300(1) of the CrPC which incorporatesthe principle of double jeopardy. The accused was alreadyprosecuted in the year 1999 for the charges ofmisappropriating public funds entrusted to him, when C.C.ENo.12 to 14/1999 were filed against him. The core allegationin all the five cases is one and the same i.e., making falseentries in the cash book and misappropriating money.

14.3That the charges in the first three cases were framed on17.08.1999 which is much after the audit and on the saidFday, the prosecution was very well aware of the allegedmisappropriation in respect of the present case. Therefore,the allegations/offences in the instant cases might have beenframed at the previous trial and the accused could havebeen tried for the present allegations in the said cases itself.

14.4That vide judgment and order dated 27.02.2001, the TrialGCourt acquitted the appellant from all the charges levelledagainst him in C.C. No.13/1999 i.e., acquitted of all thecharges levelled against during the period from 15.12.1992to 31.03.1993. However, the appellant herein was convictedof the charges in C.C. No.12 and 14 of 1999. The petitionerHherein was dismissed from service on 02.05.2001. The FIR

in the present cases was filed on 03.12.2001 after theappellant herein was dismissed from the service and thejudgment of the Trial Court was passed. The allegations/offences in the present two cases could have been framedat the previous trial and the appellant herein could havebeen tried for the same along with the trial of the earlierthree cases.

14.5If the accused was to be tried again for the present offences,previous consent of the State Government is necessary asis mandated under sub-section (2) of Section 300 of theCrPC.

14.6The charges framed in the present case pertain to severalacts of misappropriation and falsification of accounts. Thesame were allegedly committed in the course of sametransaction/same series of acts. For a series of acts to beregarded as the same transaction, they must be connected.That the different acts of misappropriation alleged againstthe accused are interlinked, connected with proximity oftime and place and community of purpose and design.

14.7During the period in question, the appellant herein held anadditional charge of some other farms and therefore had todepend heavily on his subordinates at the office.

14.8The conviction of the appellant herein under Section 409 ofthe IPC has no legal basis since the prosecution could notprove the most vital ingredient of the said offence, namely,entrustment of goods or dominion over property.

14.9The conviction under Section 13(1)(c) of the Act is not madeout since the prosecution failed to prove that the propertywas entrusted to him or was under his control, and that thesame was fraudulently or dishonestly misappropriated byhim.

15. Per contra, learned counsel appearing on behalf of therespondent-State supported the impugned judgment and order passedby the High Court and judgment of the Trial Court and contended thatthe Courts below have rightly perceived and assessed the evidence onrecord. The following submissions were also made:

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A15.1That the accused, while working as an Agricultural Officerat the State Seed Farm, Perambra from 31.05.1991 to31.05.1994, in the capacity of a public servant,misappropriated an amount of Rs.20,035/- during the periodfrom 27.04.1992 to 25.08.1992 and an amount of Rs.58,671/- during the period from 01.03.1993 to 12.04.1994.

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15.2The appellant conducted auction of coconuts and half-filledgrains and collected one-third of the auction amount fromPW- 5 and PW-6 on the date of auction itself. Afterconfirmation, two- thirds of the auction amount was alsocollected and the receipts were issued, but the said two-Cthirds amount was not remitted to the Sub-Treasury.

15.3The Agricultural Officer is the custodian of the challanreceipts, cash, cash books, etc. and during the said periodwhen the funds were misappropriated, the appellant hereinwas the Agricultural Officer at the State Seed Farm,DPerambra. The certified copy of the Attendance Registermarked at Ext.P-22 proves the same.

16. Having heard learned counsel appearing for the respectiveparties, the following points would arise for our consideration:

(a) Whether the High Court was justified in confirming theEjudgment of conviction and sentence of Trial Court?

(b) Whether the judgment of the High Court calls for anyinterference or modification by this Court?

(c) What order?

FDiscussion:

17. The learned counsel for the appellant has contended that thereis a bar to the prosecution in the two cases namely - since the appellantherein has already been prosecuted as well as punished for the sameoffences, in same set of facts. That prosecuting the appellant herein inGthe present two cases would amount to double jeopardy. In India,protection against double jeopardy is a fundamental right enshrined underArticle 20(2) of the Constitution of India. Section 300 of the CrPC isalso based on the said principle.

18. Before proceeding further, it is pertinent to understand theHconcept of double jeopardy. As per the Black’s Law Dictionary, 9[th]

Edition, ‘double jeopardy’ is defined as “being prosecuted or sentencedtwice, for substantially the same offence”.

19. The word ‘jeopardy’ is used to designate the danger ofconviction and punishment which an accused in a criminal action incurs.‘Jeopardy’ implies an exposure to a lawful conviction for an offence forwhich a person has already been acquitted or convicted. The terms‘double jeopardy’, ‘former jeopardy’, ‘jeopardy for life or limb’, ‘jeopardyfor the same offence’, ‘twice put in jeopardy of punishment’ and othersimilar expressions used in various Constitutions and statutes are to beconstrued substantially, to the same effect. In other words, doublejeopardy is used to denote the protection to an accused, that he has hada fair trial for the same offence, wherein fair trial means trial accordingto law and established legal procedure.

20. Part III of the Constitution of India deals with FundamentalRights. Articles 20 to 22 deal with personal liberty of citizens and others.Article 20(2) expressly provides that no person shall be prosecuted orpunished for the same offence, more than once. The protection againstdouble jeopardy is also supplemented by statutory provisions containedin Section 300 of the CrPC, Section 40 of the Indian Evidence Act, 1872,Section 71 of the IPC and Section 26 of the General Clauses Act, 1897.Article 20(2) of the Constitution of India reads as under:

“20. Protection in respect of conviction for offences.—

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(2) No person shall be prosecuted and punished for the sameoffence more than once.

(3) xxxxxxxxx “

21. It would also be useful to discuss on the import of Section 300of the CrPC. The said provision has been extracted hereinunder forready reference:

“Section 300 CrPC- Person once convicted or acquittednot to be tried for same offence.

(1) A person who has once been tried by a Court of competentjurisdiction for an offence and convicted or acquitted ofsuch offence shall, while such conviction or acquittalremains in force, not be liable to be tried again for the same A

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Aoffence, nor on the same facts for any other offence forwhich a different charge from the one made against himmight have been made under sub-section (1) of section 221,or for which he might have been convicted under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may beafterwards tried, with the consent of the State Government,for any distinct offence for which a separate charge mighthave been made against him at the former trial under sub-section (1) of section 220.

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C(3)A person convicted of any offence constituted by any actcausing consequences which, together with such act,constituted a different offence from that of which he wasconvicted, may be afterwards tried for such last mentionedoffence, if the consequences had not happened, or werenot known to the Court to have happened, at the time whenDhe was convicted.

(4) A person acquitted convicted of any offence constituted byany acts may, notwithstanding such acquittal or conviction,be subsequently charged with, and tried for, any otheroffence constituted by the same acts which he may haveEcommitted if the Court by which he was first tried was notcompetent to try the offence with which he is subsequentlycharged.

(5) A person discharged under section 258 shall not be triedagain for the same offence except with the consent of theFCourt by which he was discharged or of any other Court towhich the first mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section26 of the General Clauses Act, 1897 (10 of 1897) or ofsection 188 of this Code.

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Explanation.—The dismissal of a complaint, or the discharge ofthe accused, is not an acquittal for the purposes of this section.”

22. Section 300 of the CrPC embodies the general rule whichaffirms the validity of the pleas of autrefois acquit (previouslyacquitted) and autrefois convict (previously convicted). Sub-section H

(1) of Section 300 lays down the rule of double jeopardy and sub-sections(2) to (5) deal with the exceptions. Accordingly, so long as an order ofacquittal or conviction by a court of competent jurisdiction remains inforce, the person cannot be tried for the same offence for which he wastried earlier or for any other offence arising from the same fact situation,except the cases dealt in with under sub-sections (2) to (5) of the section.

23. Section 300 of the CrPC is based on the maxim nemo deberbis vexari, si costest curiae quod sit pro una et eadem causa whichmeans that a person cannot be tried a second time for an offence whichis involved in an offence with which he was previously charged. As perthe decision of this Court in Vijayalakshmi vs. Vasudevan (1994) 4SCC 656 in order to bar the trial of any person already tried, it must beshown that:

(i) he has been tried by a competent court for the same offenceor one for which he might have been charged or convictedat a trial, on the same facts,

(ii) he has been convicted or acquitted at the trial, and

(iii) such conviction or acquittal is in force.

24. The whole basis for this provision is that the first trial shouldhave been before court of competent jurisdiction. There must have beena trial of the accused, that is to say, that there should have been a hearingand determination or adjudication of the case on merits. Where theaccused has not been tried and as such convicted or acquitted, Section300(1) shall not be applicable.

25. Section 300 of the CrPC bars the trial of a person not only forthe same offence but also for any other offence on the same facts, videThakur Ram vs. State of Bihar AIR 1966 SC 911.

Article 20 of the Constitution:

26. Under clause (2) of Article 20, no person shall be prosecutedand punished for the same offence more than once. Article 20(2) of theConstitution of India incorporates within its scope, the plea of autrefoisconvict, meaning, previously convicted as known to British jurisprudence,or the plea of double jeopardy known to the American Constitution.However, the said concepts are circumscribed in Article 20(2) whichprovides that there should be not only a prosecution but also punishmentin the first instance in order to operate as a bar to a second prosecution A

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Aand punishment for the same offence. On a plain reading the of subclause (2) of Article 20, it is clear that the said provision bars a secondprosecution only where the accused has been both prosecuted andpunished for the same offence previously vide S.A. Venkataramanvs. Union of India AIR 1954 SC 375 (“S.A. Venkataraman”). Butthis clause does not bar subsequent trial if the ingredients of the offencesBin the previous and subsequent trials are distinct. In Maqbool Hussainvs. State of Bombay AIR 1953 SC 325, this Court has held that clause(2) is not applicable unless the person has been both prosecuted andpunished.

27. There are three conditions for the application of the clause.CFirstly, there must have been previous proceeding before a court of lawor a judicial tribunal of competent jurisdiction in which the person musthave been prosecuted. The said prosecution must be valid and not nulland void or abortive. Secondly, the conviction or acquittal in the previousproceeding must be in force at the time of the second proceeding inDrelation to the same offence and same set of facts, for which he wasprosecuted and punished in the first proceeding. Thirdly, the subsequentproceeding must be a fresh proceeding, where he is, for the secondtime, sought to be prosecuted and punished for the same offence andsame set of facts. In other words, the clause has no application whenthe subsequent proceeding is a mere continuation of the previousEproceeding, for example, where an appeal arises out of such acquittal orconviction. In order to sustain a plea of double jeopardy, it must be shownthat all the aforesaid conditions of this clause are satisfied, vide S.A.Venkataraman.

28. What is to be noted here is that both these provisions, i.e.,FSection 300 of the CrPC and Article 20 of the Constitution of India usethe term ‘same offence’.

Before dealing with the issue at hand, it is necessary to understandwhat the term ‘same offence’ means and includes. The term ‘sameoffence’ in simple language means, where the offences are not distinctGand the ingredients of the offences are identical. Where there are twodistinct offences made up of different ingredients, the embargo underArticle 20 of the Constitution of India, has no application, though theoffences may have some overlapping features. The crucial requirementof Article 20 is that the offences are the same and identical in all respects,Hvide State (N.C.T. of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.

29. The concept of double jeopardy can also be understood interms of Article 21 of the Constitution of India which states that noperson shall be deprived of his life or personal liberty except accordingto procedure established by law. ‘Life’ under Article 21 of the Constitutionis not merely the physical act of breathing. It does not connote mereanimal existence or continued drudgery through life. It has a much widerconnotation; it includes the right to live with human dignity. In thecelebrated judgment in the case of Maneka Gandhi vs. Union of India1978 AIR 597, this Court gave a new dimension to Article 21, whereinit stated that the right to live includes within its ambit the right to live withdignity. Under the umbrella of Article 21, various rights like right to freelegal aid, right to speedy trial, right to fair trial, etc. have been included.Similarly, protection against double jeopardy is also included under thescope of Article 21 of the Constitution of India. Prosecuting a person forthe same offence in same series of facts, for which he has previouslyeither been acquitted or has been convicted and undergone thepunishment, affects the person’s right to live with dignity.

30. Double jeopardy is often confused with double punishment.There is a vast difference between the two. Double punishment mayarise when a person is convicted for two or more offences charged inone indictment however, the question of double jeopardy arises only whena second trial is sought on a subsequent indictment following a convictionor acquittal on an earlier indictment. This doctrine is certainly not aprotection to the individual from peril of second sentence or punishment,nor to the service of a sentence for one offence, but is a protectionagainst double jeopardy for the same offence that is, against a secondtrial for the same offence.

31. Before this Court, the appellant has vehemently contendedthat he was employed as the Agricultural Officer, State Seed Farm,Perambra during the period from 31.05.1991 to 31.05.1994. He alsoheld an additional charge of Agricultural Officer, Krishi Bhavan, Perambrafor the period from 20.10.1993 to 27.10.1994. The appellant had to relyon his subordinate for performing various office works. The files includingstock registers, etc. were handled by the subordinate staff. The cashwas received by the Agricultural Assistant during the absence ofAgricultural Officer. The appellant herein referred to the testimonies ofPW-5 who was a resident of Ulliyeri engaged in coconut business, PW-11 who was the Agricultural Officer at Thayanna, PW-12 who was the A

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AAccounts Officer, Principal Agricultural Officer, Kozhikode and PW-13who was the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Northern Range, Kozhikode.

32. It will be relevant to refer to the testimonies of these witnessesrelied upon by the appellant herein. PW-5 was a resident of Ulliyeri andBengaged in coconut business for ten years. He stated that he hadpurchased coconuts from the Perambra Seed Farm many times during1992-1993. He stated that the appellant who was the Agricultural Officerthen, handed over to him, a carbon copy of the receipt for payment ofRs.8,724/- on 28.05.1992. That one-third amount was deposited on thedate of auction and remaining two-thirds amount was paid later and theCcoconuts were taken by him. This witness stated that he did not rememberif the receipt for payment of two-thirds of the amount was given or not.In his cross-examination, the witness stated that he was examined aftereight years from the date of incident and that there were other staff inthe said office. That he could not exactly say as to whom he handedDover the amount and also that he did not insist on the receipts and doesnot remember if the receipts were given or not.

33. PW-11 was the Agricultural Officer at Thayanna from21.12.1992 to 02.04.1996. He had additional charge as Agricultural Officerof State Deed Farm, Permabra. In his testimony, he stated that when heEtook charge in the presence of Joint Director of Agriculture and DeputyDirector, he did not take over the movable and immovable properties ofthe said office. That the documents were not taken over since therewere no documents in the office and that he did not ask about the cashand the cash book. In his cross examination, this witness stated thatwhen he assumed charge, it was the office staff who briefed him on theFmatters in the said office. As per this witness, there were a lot of cashtransactions in the Seed Farm and in the absence of the officers, thestaff would handle the matters of cash. The Agricultural Officer wouldhave field work too, and would also go out for periodical conferences.

34. PW-12 was the Accounts Officer of the Principal AgricultureGOffice, from 24.01.1996 to 31.08.1998. In his testimony, he stated thatduring that period, he conducted re-audit of the Seed Farm from for theperiod from 01.04.1992 to 31.12.1994. The re-audit was done since therewere objections that the details of the income of the farm were notchecked in detail. The Agricultural Officer for the period from 01.04.1992Hto 03.06.1994 was T.P. Gopalakrishnan, the appellant herein; from 04.06.1994 to 06.06.1994 was Mini; and from 07.06.1994 was VinodKumar. Since there were irregularities in the previous audit, re-auditwas done. In his cross-examination, PW-12 stated that he had not seenthe departmental audit that was firstly conducted. During his audit period,the accused was under suspension. In his cross- examination, this witnessstated that he did not know the reasons for non-availability of the cashbook and other documents in the office.

35. PW-13 is the Deputy Superintendent of Vigilance and Anti-Corruption Bureau, Kozhikode who registered the FIR in the presentcase on 05.12.2001 and seized the documents. This witness carried outthe investigation and laid the charges against the accused. The certifiedcopies of the documents showing cases pending against the accused inthe present case were also recovered. In his cross examination, PW-13stated that he came to know of the previous three cases where theaccused was named; he convicted in two cases and acquitted in onecase, and he informed the higher authorities of the same.

36. On perusal of the testimonies of the aforementioned witnesses,what emerges is that there are vital discrepancies and inconsistencies inthe testimonies of the prosecution witnesses. PW-5 in his testimony statedthat he gave the amount to the appellant herein whereas in his cross-examination, he stated that he does not know to whom he handed overthe money. As per the statement made by PW-11 in his cross examination,the staff of the Seed Farm used to handle the matters in absence of theofficers therein. The testimony of this witness supports the case of theappellant herein since the appellant has also contended the same. PW-12 in his cross, examination has stated that he did not know the reasonsas to why the cash book and other documents were not in office. PW-12has no where stated that the same were in the custody of the appellantherein.

37. It is further the case of the appellant herein that the previousthree cases, C.C. No.12, 13 and 14 of 1999 pertained to the period from28.03.1994 to 02.04.1994, 15.12.1992 to 31.03.1993 and 05.03.1994 to08.03.1994, respectively. Admittedly, the charge in C.C. No.24 of 2003is for misappropriation of an amount of Rs.20,035/- during the periodfrom 27.04.1992 to 25.08.1992; the charge in C.C. No.25 of 2003 is foran amount of Rs.58,671/-, allegedly misappropriated during the periodfrom 01.03.1993 to 12.04.1994. It is appellant’s case that he has alreadyfaced trial in the previous three cases and the present two cases pertain A

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Ato the same period. Section 300 of the CrPC places a bar wherein, aperson who has already been tried by a Court of competent jurisdictionfor an offence arising out of the same facts, and has either been acquittedor convicted of such offence cannot be tried again for the same offenceas well as on the same facts for any other offence as long as suchacquittal or conviction remains in force. The appellant herein was earlierBcharged for offences under Section 13(1)(c) read with Section 13(2) ofthe Act and Sections 409 and 477A of the IPC and was convicted in twocases and acquitted in one case. The present two cases arise out of thesame set of facts and the same transaction as that in the previous threecases wherein the appellant was tried and convicted/acquittedCrespectively. As already discussed above, for an offence to be consideredas the ‘same offence’ as the last offence, it is necessary to show thatthe offences are not distinct and the ingredients of the offences areidentical. The previous charge as well as the present charge is for thesame period of misappropriation. The matter of offences in all the previousDthree cases and the present case are the same and are said to becommitted in the course of same transaction while holding the one andsame post of Agricultural Officer by the appellant.

38. The Trial Court has erred in holding that the facts of previouscase and misappropriation committed by the accused are not the sameEas the facts relevant to present case. The Trial Court has held that in thepresent case, the allegation is that after conducting the auction of coconutsand half filled grains, two-thirds of the amount collected from thesuccessful bidder was not remitted to the treasury, however, in the earliercases, the allegations were that the accused misappropriated someamount to be paid to the proprietor of Agricultural Marketing Corporation,FKozhikode, Kerala State Coir marketing Corporation, Kozhikode fromthe State Seed Farm, Perambra by forging and falsifying records. It isthe admitted case of the prosecution that the present cases were basedon the re-audit conducted by PW-9- the Assistant Sub-Inspector, Vigilanceand Anti-Corruption Bureau, Kozhikode. The re-audit was done for theGperiod from 01.04.1992 to 31.12.1994. The charges in the present caseare for relevant period from 27.04.1992 to 25.08.1992 and 01.03.1993 to12.04.1994 which time period is same as in the previous three cases,that is, 28.03.1994 to 02.04.1994, 15.12.1992 to 31.03.1993 and 05.03.1994to 08.03.1994 respectively. Thus, it can be said that the present casespertain to the same set of facts and are in respect of same offences, forH

the same period, committed in the same capacity as the previous threecases wherein the appellant herein was already prosecuted in the year1999. The core allegation in all these five cases pertains to misappropriationby making false entries in the cash book. The allegation of the prosecutionthat two-thirds of the auction amount was not remitted to the treasurywould be covered under the allegations of misappropriation of funds,that the appellant has already been prosecuted for in the year 1999. Theappellant is right in contending that the charge in the first three caseswere framed on 17.08.1999 which is much after the audit and theprosecution would have been well aware of the misappropriation inrespect of the present cases on 17.08.1999.

39. The learned counsel for the appellant has also brought to theattention of this Court, sub-section (2) of Section 300 of the CrPC whichstates that a person acquitted or convicted of any offence may be triedthereafter, but with the consent of the State Government, for any distinctoffence for which a separate charge might have been framed againsthim under sub-section (1) of Section 220 of the CrPC. It has alreadybeen observed hereinabove that the allegations/offences in the instantcases are the same as the allegations/offences in the previous threecases, therefore as per the mandate under Section 300(2) of the CrPC,the consent of the State Government is necessary. Even if it is assumedfor the sake of argument that the allegations are different in presentcases from those in the previous cases, the prosecution has failed toobtain the prior consent of the State Government necessary to prosecutethe accused-appellant and therefore the trial in the instant case is unlawful.

40. It would not be wrong to say that the charges framed againstthe accused reveal that there were several acts of misappropriation andfalsification of accounts however the same were committed in the sametransaction as the one for which he was prosecuted in the year 1999.The series of acts alleged against him are so connected to one another.

41. Sub-section (2) of Section 300 of the CrPC states that whenthe charge of the second trial is for a distinct offence, the trial is notbarred. This means that if a person is acquitted or convicted of anyoffence, he may be tried for a distinct offence for which a separatecharge might have been made against him at the former trial under sub-section (1) of Section 220 of the CrPC but the same is subject to acondition precedent being, that the consent of the State Government issought before such a person could be tried.

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AApplying the said provision to the present case, it is noted thatearlier the petitioner was tried in C.C. No.12 of 1999, C.C. No. 13 of1999 and C.C. No.14 of 1999 for the offences under Section 13(1)(c)read with Section 13(2) of the Act as well as under Sections 409 and477A of the IPC. In C.C. No. 24 of 2003 and C.C. No. 25 of 2003, theappellant is being tried once again for the offences under Section 13(1)(c)Bread with Section 13(2) of the Act and Section 409 of the IPC for thesame period. There is no material on record to demonstrate that

C.C. No.24 of 2003 and C.C. No.25 of 2003 have been initiatedpursuant to the consent of the State Government. It is also not broughton record that the C.C. No.24 of 2003 and C.C. No.25 of 2003 is forCany distinct offence for which a separate charge had been made againstthe appellant and the earlier trials.

(a) Having re-appreciated the evidence of the witnesses andon considering the contentions of the rival parties, we findthat the High Court was not justified in affirming theDjudgment of conviction and sentence passed by the TrialCourt.

(b) In view of the aforesaid discussion, we find that the TrialCourt as well as the High Court were not right in convictingand sentencing the appellant herein and therefore, theEimpugned judgments are liable to be set aside.

42. In the circumstances, we find that the initiation of C.C. No.24of 2003 and C.C. No. 25 of 2003 are not in accordance with law andhence, the said proceedings are quashed. Consequently, the judgment ofthe Special Judge, Kozikhode in C.C. No.24 of 2003 and C.C. No.25 ofF2003 and of the High Court of Kerala at Ernakulam in Criminal AppealNos.947 and 948 of 2009 are set aside.

The appeals are allowed in the aforesaid terms. Pendingapplication(s), if any, shall stand disposed of.

GNo costs.

Devika Gujral(Assisted by : Preetam Bharti, LCRA)

Appeals allowed.

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