Secs. 482 Cr.P.C. r/w Sec.186 Cr.P.C. - Explosives dispatched from a single place to three different destinations - Unloaded explosives were used in three different criminal activities in the above said three different places - Registration of 3 F.I.R.S - High court allowed the petition under sec.186 Cr.P.C. and directed to discontinue the subsequent and third F.I.R. Proceedings - Apex court set aside the High court order as the Offences committed are not the one and same expect loading of Explosives at one place =
Whether the offences committed in different places in 3 different manners can be discontinued due to supply of explosives from one place ? = No
“186. High Court to decide, in case of doubt, district where
inquiry or trial shall take place.- Where two or more Courts
have taken cognizance of the same offence and a question arises
as to which of them ought to inquire into or try that offence,
the question shall be decided --
(a) if the Courts are subordinate to the same High Court,
by that High Court;
(b) if the Courts are not subordinate to the same High
Court, by the High Court within the local limits of whose
appellate criminal jurisdiction the proceedings were first
commenced,
and thereupon all other proceedings in respect of that offence
shall be discontinued.”
Friedland in Double Jeopardy (Oxford 1969) says at p.
108:
“The trouble with this approach is that it is vague and hazy and
conceals the thought processes of the court. Such an inexact
test must depend upon the individual impressions of the judges
and can give little guidance for future decisions. A more
serious consequence is the fact that a decision in one case that
two offences are ‘substantially the same’ may compel the same
result in another case involving the same two offences where the
circumstances may be such that a second prosecution should be
permissible....”
whether a crime and the offence of conspiracy to commit it
are different offences.
This Court said: (SCR p. 827)
“The offence of 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.”
14. In the instant case, as noticed above, the nature and
manner of offences committed by the accused persons are not
identical but are different,
for example, in respect of FIR Crime
No.130 of 2010 the accused persons in connivance with respondent
No.1 delivered 103 trucks of explosives to the Magazines of M/s.
Ajay Explosives which belonged to Shiv Charan Heda and 60 trucks of
explosives to M/s. B.M. Traders which belonged to Deepa Heda. It was
alleged that the Magazines of M/s. Ganesh Explosives and M/s. Sangam
Explosives were not operational since many years and with the forged
documentation in the name of the said firms the explosives were
purchased by M/s. Ajay Explosives and M/s. B.M. Traders and
subsequently those explosives were sold to some unknown persons.
In
respect of those FIRs, one accused, a resident of Nepal, was
arrested and from whose custody 498 non electronic detonators were
recovered.
In respect of another FIR, during investigation, it has
come on the record that those explosives were sold for terrorist
activities.
15. Offence means any act or omission made punishable by law.
The fountain head of all the three cases may be at Dholpur from
where truck loaded with explosives moved to different destinations
but from that it cannot be said that the acts and omissions which
constitute the offence are the same.
Same offence, in our opinion,
would mean that acts and omissions which constitute the offence are one and the same.
Except the allegation that the explosives were
loaded at Dholpur, the mode and manner in which the offence was
committed at different places are not the same.
As such, in our
opinion, the provision of Section 186 of the Code is not attracted
in the facts of the present case. Hence, the High court erred in
passing the impugned order.
16. In the facts and circumstances of the case, we are of the
considered opinion that the impugned order passed by the High Court
is to be set aside. Consequently, the appeal preferred by the State
of Rajasthan is allowed and the appeal preferred by the accused
stands disposed of.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2118 OF 2013
(Arising out of Special Leave Petition (Criminal) No.8402 of 2011)
State of Rajasthan …..Appellant
versus
Bhagwan Das Agrawal & Others ….Respondents
WITH
CRIMINAL APPEAL NO. 2119 OF 2013
(Arising out of Special Leave Petition (Criminal) No.2180 of 2012)
Girdhar & Others …..Appellants
versus
State of Rajasthan & Another
….Respondents
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. Aggrieved by the judgment and order dated 15th July, 2011
passed by the High Court of Madhya Pradesh, Principal Seat at
Jabalpur, whereby the petition filed by respondent No. 1 herein
(Bhagwan Das Agrawal) under Section 482 of the Code of Criminal
Procedure, 1973 (for short, “Cr.P.C.”) seeking relief to hold that
the proceedings based on the subsequent and third FIR registered in
Dholpur (Rajasthan) as Crime No. 427/2010 under Section 5/9B, 9C of
the Explosives Act, 1884, in view of the provisions of Section 186
of Cr.P.C., be discontinued, was allowed, the appellant-State of
Rajasthan has preferred the special leave petition being No. 8402
of 2011.
3. The facts and circumstances giving rise to the present
appeal are that in respect of alleged unauthorized and illegal
supply of explosives by M/s. Rajasthan Explosives and Chemicals
Ltd., Dholpur (for short, “RECL”), in which respondent No. 1 herein
Bhagwan Das Agrawal was Managing Director, to M/s. Ganesh
Explosives, Sagar during the period from 17.4.2010 to 29.6.2010 in
contravention of the Explosives Act, a case at Police Station
Baheria, District Sagar was registered on 13.7.2010 as FIR/Crime
No. 161/2010. The police after due investigation filed charge-
sheet on 18.11.2010 for offences punishable under Sections 420,
467, 468, 471, 120-B, 201 and 34 of the Indian Penal Code (for
short, ‘IPC’) and Sections 9B, 9C of the Explosives Substances Act,
1884 and Sections 4 and 6 of the Explosive Substances Act, 1908 in
the Court of concerned Judicial Magistrate, First Class, Sagar
against 11 persons including four persons from RECL viz. respondent
No. 1 herein (Managing Director), K. Edward Kelly (Director,
Operations), Vinod Kumar Garg (Chief Manager, Marketing) and Rakesh
Kumar Agrawal (Manager, Marketing). The array of accused persons,
inter alia, included Devendra Singh Thakur, Jai Kishan Ashwani,
Rajendra Choubey, Gopal Shakyawar, Shiv Charan Heda, Deepa Heda and
Alakh Das Gupta. After filing of the charge-sheet, the Magistrate
took cognizance of the offences. Similar charge-sheet under
Sections 420, 467, 468, 471, 120-B, 201/34, IPC read with Sections
9B and 9C of the Explosives Substances Act, 1884 and Sections 4, 5
and 6 of the Explosive Substances Act, 1908 was filed after
investigation into another FIR lodged at Police Station Chanderi,
District Ashok Nagar as FIR/ Crime No. 310/2010 on 26.8.2010 for
the supply of explosives during the period from 1.4.2010 to
30.6.2010 by RECL to another firm M/s. Sangam Explosives, Halanpur
in Chanderi, District Ashok Nagar. This charge-sheet was filed in
the Court of concerned Judicial Magistrate, First Class, Chanderi
against 8 persons including four from RECL viz. respondent No. 1
herein (Managing Director), K. Edward Kelly (Director, Operations),
Vinod Kumar Garg (Chief Manager, Marketing) and Rakesh Kumar
Agrawal (Manager, Marketing). The array of accused persons, inter
alia, included Rajendra Kumar Choubey, Anil Dhupad, Shiv Charan
Heda and Jai Kishan Ashwani. In this case too, the Magistrate took
cognizance of the offences on 25.11.2010. Subsequently on
5.9.2010, in respect of supplies made by RECL during the period
from 1.4.2010 to 5.9.2010 to M/s. Ganesh Explosives, Sagar and to
M/s. Sangam Explosives, Chanderi, third FIR on the report submitted
by a Committee constituted to investigate into a news published in
the newspaper regarding disappearance of trucks carrying explosives
was lodged at Police Station Dholpur as FIR/Crime No. 427/2010 and
the police after due investigation filed charge-sheet on 4.12.2010
against 16 persons for offences under Section 420, 465, 467, 468,
471, 120-B, IPC read with Sections 5, 9B and 9C of the Explosives
Substances Act, 1884 and Sections 5 and 6 of the Explosive
Substances Act, 1908 in the Court of Chief Judicial Magistrate,
Dholpur, Rajasthan including the four office bearers of RECL viz.
respondent No. 1 herein (Managing Director), K. Edward Kelly
(Director, Operations), Vinod Kumar Garg (Chief Manager, Marketing)
and Rakesh Kumar Agrawal (Manager, Marketing). The array of accused
persons, inter alia included Shiv Charan Heda, Rajendra Kumar
Choubey, Jai Kishan, Ashwani (also arrayed as acused in Sagar and
Chanderi Courts) and Jagdish Soni, Uday Lal Kabra, Lalit Gangwani,
Girdhar Bhai, Arvind, Sunil, Damji Bhai, Jitender Taank & Chimman
Lal. The Magistrate took congnizance of the offences on 4.12.2010.
It is thus clear that the charge-sheets were filed for the same
offences against the officers (four in No.) of RECL as also the
concerned persons of M/s. Ganesh Explosives and M/s. Sangam
Explosives with the only difference that first FIR at Baheria was
for supply made to M/s. Ganesh Explosives, second FIR at Chanderi
for supply made to M/s. Sangam Explosives and the third FIR at
Dholpur for supplies made both to M/s. Ganesh Explosives and M/s.
Sangam Explosives. The final outcome was that for the same
offences, cognizance came to be taken by the courts at Sagar,
Chanderi and Dholpur.
4. As per FIR/Crime No. 161 of 2010, 60 trucks of explosive
material outbound from RECL, Dholpur to M/s. Ganesh Explosives,
P.S. Baheria (M.P.) actually reached (i) M/s. Ajay Explosive,
Ahmadnagar (Maharashtra) (ii) M/s. B.M. Traders, Bywara (M.P.), and
(iii) M/s. B.M. Traders, Bhilwara (Rajasthan). FIR/Crime No. 310 of
2010 recorded that 103 trucks of explosive material outbound from
RECL, Dholpur to M/s. Sangam Explosives at P.S. Chanderi (M.P.)
actually reached (i) M/s. B.M. Traders, Bywara (M.P.) and (ii) M/s.
Ajay Traders, Bhilwara (Rajasthan). As per FIR/Crime No. 427/2010,
M/s. RECL, Dholpur sold explosive material illegally to (i) M/s.
Ganesh Explosives, Sagar (M.P.) and (ii) M/s. Sangam
Explosives, Ashok Nagar (M.P.) after the expiry of their licences.
The same never reached the destinations and were diverted in their
middle to Bhilwara (Raj.), Bywara (M.P.) etc. The explosives were
also sold for terrorist activities which stood revealed from FIR
No.130/2010 P.S. Karol Bagh, New Delhi.
5. It was alleged in the petition filed by respondent No. 1
herein before the High Court that RECL was incorporated as a
private limited company in 1980; the factory of RECL at Dholpur,
Rajasthan got commissioned in 1981 & since then regular production
of explosives has been taking place there; and RECL was making
regular supplies amongst other dealers to M/s. Ganesh Explosives as
also to M/s. Sangam Explosives. It was alleged that what was
investigated and charge-sheeted by the police of P.S. Baheria and
P.S. Chanderi was put together and re-investigated by the P.S.
Dholpur. It was further alleged that when cognizance of selfsame
offence is taken by more than one court, then in such circumstances
Section 186 Cr.P.C. comes into play in order to cap such situation
and as the first court happened to be the Court of Judicial
Magistrate, First Class, Sagar, M.P. to have initiated proceedings
by taking congnizance of the offence upon submission of charge-
sheet by the police of P.S. Baheria in FIR/Crime No. 161/2010, that
court being the court in whose appellate criminal jurisdiction the
proceedings first commenced was the court vested with the requisite
jurisdiction under Section 186 Cr.P.C. to decide and make a
declaration. It was alleged that the sum and substance of the
allegations in the cases registered at P.S. Baheria, P.S. Chanderi
and P.S. Dholpur happen to be identical, relating to the same
occurrence/same transaction as also the same offence i.e. illegal
supply of explosives contrary to the Explosives Rules by RECL to
M/s. Ganesh Explosives and M/s. Sangam Explosives. Accordingly,
prayer was made to declare the criminal proceedings in the Court of
Chief Judicial Magistrate, Dholpur being violative of Section
186(b) Cr.P.C. and to discontinue the same.
6. The High Court by the impugned order dated 15.7.2011 while
allowing the petition filed by respondent No. 1 herein purportedly
to give effect to the provision of Section 186(b) of Cr.P.C. has
observed as under:
“On perusal of third FIR and charge sheet submitted in
that respect, it is apparently clear that in contravention of the
provisions of the Explosives Act, Rajasthan Explosives and
Chemicals Ltd. (RECL in short) Dholpur supplied explosives to M/s.
Ganesh Agency, Sagar and M/s. Sangam Agency, Chanderi. On perusal
of both earlier FIRs, it is revealed that there are 11 accused
persons facing trial in Sagar (M.P.) and 8 accused persons are
facing trial in Ashok Nagar (M.P.) Court. In the charge sheet
submitted on the basis of subsequent and third FIR, accused
persons and alleged offences are the same.
xxx xxx xxx
Admittedly, Rajasthan Court had taken cognizance of the
offence, which was already a subject matter of the case already
pending in the court of Sagar and also taken congnizance of the
case which has already been pending in the court of Ashok Nagar
(M.P.). The proceedings has first commenced in Sagar and in
Chanderi respectively within the jurisdiction of the High Court of
Madhya Pradesh, hence, subsequent proceedings initiated and
registered in Dholpur Court stands discontinued and is liable to
be discontinued.
Needless to write that this order will not be a bar to
deal with the offences which are not the subject matter of the
cases pending already in the courts of Madhya Pradesh.”
7. In the special leave petition, the appellant-State
of Rajasthan has contended that in connivance with respondent No. 1
herein 103 trucks of explosives were delivered to the Magazines of
M/s. Ajay Explosives which belongs to Shiv Charan Heda and 60
trucks of explosives to M/s. B.M. Traders which belongs to Deepa
Heda, both relatives of Jai Kishan Ashwani. It is alleged that the
magazines of M/s. Ganesh Explosives and M/s. Sangam Explosives are
not operational since many years and with the forged documentation
in the name of said firms the explosives were purchased by M/s.
Ajay Explosives and M/s. B.M. Traders and the explosives were then
sold to some unknown persons which are serious threat to the
security of the nation and one such example is the registration of
FIR in Crime No. 130/2010 P.S. Karol Bagh under Sections 4 and 5 of
the Explosive Substances Act in which the accused Loknath Pant, a
resident of Nepal was arrested and in whose custody 498 non-
electronic detonator and 29.12 meter fuse wire were recovered and
in the packing of the cartons it was revealed that the said
explosives were from RECL, Dholpur. It is contended that the High
Court has erred in law and fact by discontinuing the proceedings at
Dholpur (Rajasthan) because cause of action arose within the
jurisdiction of court at Dholpur and the territorial jurisdiction
of a court regarding criminal offence is to be decided on the basis
of place of occurrence of the incident and not on the basis of
where complaint was filed. It is further alleged in the special
leave petition that even the Committee comprising Sub-Divisional
Magistrate, Deputy Superintendent of Police and General Manager of
District Industrial Centre in its report submitted to the
Superintendent of Police, Dholpur has stated that the manufacturing
licence of RECL was valid till 31.3.2010 and the said company sold
the explosive material to M/s. Ganesh Explosives and M/s. Sangam
Explosives from the month of April 2010 till June 2010 illegally
when their licences too had expired and RECL has sold the material
in excess to the stipulated quantity mentioned in the licence. It
was found by the Committee that there was no receipt/proof with
RECL whether the trucks reached the destinations or not and further
RECL had violated the Explosive Rules. It is alleged that the
payments in lieu of sold explosive materials were made through the
Demand Drafts of ICICI Bank, Yes Bank, Axis Bank and Indusland Bank
situated at Rajkot and the payment was being made through the
agents of Ganga Enterprises, Sidhnath Enterprises, Govind Kripa
Enterprises, Thakkar Enterprises, Bhagwati Enterprises and Jyoti
Enterprises, Rajkot. These agents used to prepare the demand
drafts in the name of RECL and give to one Jagdish Soni (an accused
in FIR No.427/10 at Dholpur) who used to pass on the demand drafts
to Shiv Charan Heda (an accused in all the FIRs). These six
agents, who had been arrested on 22.12.2010 by Dholpur Police
Station upon a supplementary charge-sheet being filed and have not
been arrayed as accused in the proceedings pending in the courts at
Sagar and Chanderi (Madhya Pradesh), have been impleaded as
respondent Nos. 3 to 8 in the present proceedings. It is lastly
alleged that the respondent could not have filed the second
petition because he along with other office bearers of RECL has
withdrawn the first petition seeking quashing of proceedings in
Crime No. 161/2010 registered at P.S. Baheria on the ground that
they were already facing trial in Crime No. 427/2010 registered by
the Dholpur Police on the same set of charges and no liberty was
granted by the High Court to file a fresh petition.
8. The respondents impleaded in SLP(Crl.) No. 8402 of 2011,
have filed SLP (Crl.) No. 2180 of 2012 challenging the order dated
4.1.2012 passed by the High Court of Rajasthan, Bench at Jaipur
whereby the habeas corpus petition filed by them was disposed of
holding that the question of remand of the accused-petitioners in
FIR No. 427/2010, Kotwali Dholpur by the court in the State of
Rajasthan was in accordance with law or not and the detention of
the accused-petitioners is illegal, are the questions which are to
be adjudicated only after the issue of jurisdiction of courts in
Rajasthan pending before the Apex Court in SLP(Crl.) No. 8402 of
2011 is decided. The said SLP(Crl.) No. 2180 of 2012 was directed
to be put up along with SLP(Crl.) No. 8402 of 2011. Hence, both
the special leave petitions are before us.
9. While issuing notice in SLP(Crl.) No.. 8402 of 2011, this
Court on 25.11.2011 passed the following order:
“Mr. U.U. Lalit, learned senior counsel appearing for
respondent no.1 on caveat stated that though the High Court has
quashed the proceedings at the Dholpur Court in Rajasthan, the
respondents have no objection if the proceedings are continued at
Dholpur, but in that case the proceedings arising from the same
set of facts in the two Courts in Madhra Pradesh, i.e. at Sagar
and Chanderi may have to be quashed.
Issue notice to the non-appearing respondent on the
limited question whether the proceedings should continue at
Dholpur or at the two places (Sagar and Chanderi) in Madhya
Pradesh.”
10. The short question that falls for consideration in the
instant case is as to whether the proceedings should continue at
Dholpur or at the two places (Sagar and Chanderi) in Madhya
Pradesh.
11. Section 186, Cr.P.C., which deals with the power of the
High Court to decide, in case of doubt, the district where inquiry
or trial shall take place, is extracted hereinbelow:-
“186. High Court to decide, in case of doubt, district where
inquiry or trial shall take place.- Where two or more Courts
have taken cognizance of the same offence and a question arises
as to which of them ought to inquire into or try that offence,
the question shall be decided --
(a) if the Courts are subordinate to the same High Court,
by that High Court;
(b) if the Courts are not subordinate to the same High
Court, by the High Court within the local limits of whose
appellate criminal jurisdiction the proceedings were first
commenced,
and thereupon all other proceedings in respect of that offence
shall be discontinued.”
12. From bare reading of the aforesaid provision it is manifest
that the main object and intention of the Legislature in enacting
the provision is to prevent the accused persons from being
unnecessarily harassed for the same offences alleged to have been
committed within the territorial jurisdiction of more than one
courts. In order to avoid unnecessary harassment of the accused to
appear and face trial in more than one courts, necessary direction
is to be issued to discontinue the subsequent proceedings in other
courts. The provision is based on the principle of convenience and
expediency. However, the sine qua non for the application of this
provision is that the cases instituted in different courts are in
respect of the same offence arising out of the same occurrence and
that the same transaction and that the parties are the same. In
other words, the persons implicated as an accused in different cases
must be the same. If these conditions are satisfied then subsequent
proceeding has to be discontinued.
13. Chapter XXIV of the Code of Criminal Procedure deals with
the provisions with regard to the enquiries and trials. Section 300
debars the Court from proceeding with the trial in respect of the
same offence for which the accused has already been tried and
convicted or acquitted. However, a person convicted for any offence
may be afterwards tried if such act constituted a different offence
from that of which he was convicted. This Court elaborately dealt
with the provisions contained in Section 300 Cr.P.C. in the case of
State of Bihar v. Murad Ali Khan, (1988) 4 SCC page 655. Some of
the paragraphs are worth to be quoted hereinafter.
“26. Broadly speaking, a protection against a second or multiple
punishment for the same offence, technical complexities aside,
includes a protection against re-prosecution after acquittal, a
protection against re-prosecution after conviction and a
protection against double or multiple punishment for the same
offence. These protections have since received constitutional
guarantee under Article 20(2). But difficulties arise in the
application of the principle in the context of what is meant by
“same offence”. The principle in American law is stated thus:
“The proliferation of technically different offences encompassed
in a single instance of crime behaviour has increased the
importance of defining the scope of the offence that controls
for purposes of the double jeopardy guarantee.
Distinct statutory provisions will be treated as involving
separate offences for double jeopardy purposes only if ‘each
provision requires proof of an additional fact which the other
does not’ (Blockburger v. United States). Where the same
evidence suffices to prove both crimes, they are the same for
double jeopardy purposes, and the clause forbids successive
trials and cumulative punishments for the two crimes. The
offences must be joined in one indictment and tried together
unless the defendant requests that they be tried separately.
27. The expression “the same offence”, “substantially the same
offence” “in effect the same offence” or “practically the same”,
have not done much to lessen the difficulty in applying the
tests to identify the legal common denominators of “same
offence”. Friedland in Double Jeopardy (Oxford 1969) says at p.
108:
“The trouble with this approach is that it is vague and hazy and
conceals the thought processes of the court. Such an inexact
test must depend upon the individual impressions of the judges
and can give little guidance for future decisions. A more
serious consequence is the fact that a decision in one case that
two offences are ‘substantially the same’ may compel the same
result in another case involving the same two offences where the
circumstances may be such that a second prosecution should be
permissible....”
28. In order that the prohibition is attracted the same act must
constitute an offence under more than one Act. If there are two
distinct and separate offences with different ingredients under
two different enactments, a double punishment is not barred. In
Leo Roy Frey v. Superintendent, District Jail, the question
arose whether a crime and the offence of conspiracy to commit it
are different offences. This Court said: (SCR p. 827)
“The offence of 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.”
14. In the instant case, as noticed above, the nature and
manner of offences committed by the accused persons are not
identical but are different,
for example, in respect of FIR Crime
No.130 of 2010 the accused persons in connivance with respondent
No.1 delivered 103 trucks of explosives to the Magazines of M/s.
Ajay Explosives which belonged to Shiv Charan Heda and 60 trucks of
explosives to M/s. B.M. Traders which belonged to Deepa Heda. It was
alleged that the Magazines of M/s. Ganesh Explosives and M/s. Sangam
Explosives were not operational since many years and with the forged
documentation in the name of the said firms the explosives were
purchased by M/s. Ajay Explosives and M/s. B.M. Traders and
subsequently those explosives were sold to some unknown persons.
In
respect of those FIRs, one accused, a resident of Nepal, was
arrested and from whose custody 498 non electronic detonators were
recovered.
In respect of another FIR, during investigation, it has
come on the record that those explosives were sold for terrorist
activities.
15. Offence means any act or omission made punishable by law.
The fountain head of all the three cases may be at Dholpur from
where truck loaded with explosives moved to different destinations
but from that it cannot be said that the acts and omissions which
constitute the offence are the same.
Same offence, in our opinion,
would mean that acts and omissions which constitute the offence are one and the same.
Except the allegation that the explosives were
loaded at Dholpur, the mode and manner in which the offence was
committed at different places are not the same.
As such, in our
opinion, the provision of Section 186 of the Code is not attracted
in the facts of the present case. Hence, the High court erred in
passing the impugned order.
16. In the facts and circumstances of the case, we are of the
considered opinion that the impugned order passed by the High Court
is to be set aside. Consequently, the appeal preferred by the State
of Rajasthan is allowed and the appeal preferred by the accused
stands disposed of.
….…………………………….J.
(Chandramauli Kr. Prasad)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
December 17, 2013.
-----------------------
17
Whether the offences committed in different places in 3 different manners can be discontinued due to supply of explosives from one place ? = No
“186. High Court to decide, in case of doubt, district where
inquiry or trial shall take place.- Where two or more Courts
have taken cognizance of the same offence and a question arises
as to which of them ought to inquire into or try that offence,
the question shall be decided --
(a) if the Courts are subordinate to the same High Court,
by that High Court;
(b) if the Courts are not subordinate to the same High
Court, by the High Court within the local limits of whose
appellate criminal jurisdiction the proceedings were first
commenced,
and thereupon all other proceedings in respect of that offence
shall be discontinued.”
Friedland in Double Jeopardy (Oxford 1969) says at p.
108:
“The trouble with this approach is that it is vague and hazy and
conceals the thought processes of the court. Such an inexact
test must depend upon the individual impressions of the judges
and can give little guidance for future decisions. A more
serious consequence is the fact that a decision in one case that
two offences are ‘substantially the same’ may compel the same
result in another case involving the same two offences where the
circumstances may be such that a second prosecution should be
permissible....”
whether a crime and the offence of conspiracy to commit it
are different offences.
This Court said: (SCR p. 827)
“The offence of 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.”
14. In the instant case, as noticed above, the nature and
manner of offences committed by the accused persons are not
identical but are different,
for example, in respect of FIR Crime
No.130 of 2010 the accused persons in connivance with respondent
No.1 delivered 103 trucks of explosives to the Magazines of M/s.
Ajay Explosives which belonged to Shiv Charan Heda and 60 trucks of
explosives to M/s. B.M. Traders which belonged to Deepa Heda. It was
alleged that the Magazines of M/s. Ganesh Explosives and M/s. Sangam
Explosives were not operational since many years and with the forged
documentation in the name of the said firms the explosives were
purchased by M/s. Ajay Explosives and M/s. B.M. Traders and
subsequently those explosives were sold to some unknown persons.
In
respect of those FIRs, one accused, a resident of Nepal, was
arrested and from whose custody 498 non electronic detonators were
recovered.
In respect of another FIR, during investigation, it has
come on the record that those explosives were sold for terrorist
activities.
15. Offence means any act or omission made punishable by law.
The fountain head of all the three cases may be at Dholpur from
where truck loaded with explosives moved to different destinations
but from that it cannot be said that the acts and omissions which
constitute the offence are the same.
Same offence, in our opinion,
would mean that acts and omissions which constitute the offence are one and the same.
Except the allegation that the explosives were
loaded at Dholpur, the mode and manner in which the offence was
committed at different places are not the same.
As such, in our
opinion, the provision of Section 186 of the Code is not attracted
in the facts of the present case. Hence, the High court erred in
passing the impugned order.
16. In the facts and circumstances of the case, we are of the
considered opinion that the impugned order passed by the High Court
is to be set aside. Consequently, the appeal preferred by the State
of Rajasthan is allowed and the appeal preferred by the accused
stands disposed of.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2118 OF 2013
(Arising out of Special Leave Petition (Criminal) No.8402 of 2011)
State of Rajasthan …..Appellant
versus
Bhagwan Das Agrawal & Others ….Respondents
WITH
CRIMINAL APPEAL NO. 2119 OF 2013
(Arising out of Special Leave Petition (Criminal) No.2180 of 2012)
Girdhar & Others …..Appellants
versus
State of Rajasthan & Another
….Respondents
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. Aggrieved by the judgment and order dated 15th July, 2011
passed by the High Court of Madhya Pradesh, Principal Seat at
Jabalpur, whereby the petition filed by respondent No. 1 herein
(Bhagwan Das Agrawal) under Section 482 of the Code of Criminal
Procedure, 1973 (for short, “Cr.P.C.”) seeking relief to hold that
the proceedings based on the subsequent and third FIR registered in
Dholpur (Rajasthan) as Crime No. 427/2010 under Section 5/9B, 9C of
the Explosives Act, 1884, in view of the provisions of Section 186
of Cr.P.C., be discontinued, was allowed, the appellant-State of
Rajasthan has preferred the special leave petition being No. 8402
of 2011.
3. The facts and circumstances giving rise to the present
appeal are that in respect of alleged unauthorized and illegal
supply of explosives by M/s. Rajasthan Explosives and Chemicals
Ltd., Dholpur (for short, “RECL”), in which respondent No. 1 herein
Bhagwan Das Agrawal was Managing Director, to M/s. Ganesh
Explosives, Sagar during the period from 17.4.2010 to 29.6.2010 in
contravention of the Explosives Act, a case at Police Station
Baheria, District Sagar was registered on 13.7.2010 as FIR/Crime
No. 161/2010. The police after due investigation filed charge-
sheet on 18.11.2010 for offences punishable under Sections 420,
467, 468, 471, 120-B, 201 and 34 of the Indian Penal Code (for
short, ‘IPC’) and Sections 9B, 9C of the Explosives Substances Act,
1884 and Sections 4 and 6 of the Explosive Substances Act, 1908 in
the Court of concerned Judicial Magistrate, First Class, Sagar
against 11 persons including four persons from RECL viz. respondent
No. 1 herein (Managing Director), K. Edward Kelly (Director,
Operations), Vinod Kumar Garg (Chief Manager, Marketing) and Rakesh
Kumar Agrawal (Manager, Marketing). The array of accused persons,
inter alia, included Devendra Singh Thakur, Jai Kishan Ashwani,
Rajendra Choubey, Gopal Shakyawar, Shiv Charan Heda, Deepa Heda and
Alakh Das Gupta. After filing of the charge-sheet, the Magistrate
took cognizance of the offences. Similar charge-sheet under
Sections 420, 467, 468, 471, 120-B, 201/34, IPC read with Sections
9B and 9C of the Explosives Substances Act, 1884 and Sections 4, 5
and 6 of the Explosive Substances Act, 1908 was filed after
investigation into another FIR lodged at Police Station Chanderi,
District Ashok Nagar as FIR/ Crime No. 310/2010 on 26.8.2010 for
the supply of explosives during the period from 1.4.2010 to
30.6.2010 by RECL to another firm M/s. Sangam Explosives, Halanpur
in Chanderi, District Ashok Nagar. This charge-sheet was filed in
the Court of concerned Judicial Magistrate, First Class, Chanderi
against 8 persons including four from RECL viz. respondent No. 1
herein (Managing Director), K. Edward Kelly (Director, Operations),
Vinod Kumar Garg (Chief Manager, Marketing) and Rakesh Kumar
Agrawal (Manager, Marketing). The array of accused persons, inter
alia, included Rajendra Kumar Choubey, Anil Dhupad, Shiv Charan
Heda and Jai Kishan Ashwani. In this case too, the Magistrate took
cognizance of the offences on 25.11.2010. Subsequently on
5.9.2010, in respect of supplies made by RECL during the period
from 1.4.2010 to 5.9.2010 to M/s. Ganesh Explosives, Sagar and to
M/s. Sangam Explosives, Chanderi, third FIR on the report submitted
by a Committee constituted to investigate into a news published in
the newspaper regarding disappearance of trucks carrying explosives
was lodged at Police Station Dholpur as FIR/Crime No. 427/2010 and
the police after due investigation filed charge-sheet on 4.12.2010
against 16 persons for offences under Section 420, 465, 467, 468,
471, 120-B, IPC read with Sections 5, 9B and 9C of the Explosives
Substances Act, 1884 and Sections 5 and 6 of the Explosive
Substances Act, 1908 in the Court of Chief Judicial Magistrate,
Dholpur, Rajasthan including the four office bearers of RECL viz.
respondent No. 1 herein (Managing Director), K. Edward Kelly
(Director, Operations), Vinod Kumar Garg (Chief Manager, Marketing)
and Rakesh Kumar Agrawal (Manager, Marketing). The array of accused
persons, inter alia included Shiv Charan Heda, Rajendra Kumar
Choubey, Jai Kishan, Ashwani (also arrayed as acused in Sagar and
Chanderi Courts) and Jagdish Soni, Uday Lal Kabra, Lalit Gangwani,
Girdhar Bhai, Arvind, Sunil, Damji Bhai, Jitender Taank & Chimman
Lal. The Magistrate took congnizance of the offences on 4.12.2010.
It is thus clear that the charge-sheets were filed for the same
offences against the officers (four in No.) of RECL as also the
concerned persons of M/s. Ganesh Explosives and M/s. Sangam
Explosives with the only difference that first FIR at Baheria was
for supply made to M/s. Ganesh Explosives, second FIR at Chanderi
for supply made to M/s. Sangam Explosives and the third FIR at
Dholpur for supplies made both to M/s. Ganesh Explosives and M/s.
Sangam Explosives. The final outcome was that for the same
offences, cognizance came to be taken by the courts at Sagar,
Chanderi and Dholpur.
4. As per FIR/Crime No. 161 of 2010, 60 trucks of explosive
material outbound from RECL, Dholpur to M/s. Ganesh Explosives,
P.S. Baheria (M.P.) actually reached (i) M/s. Ajay Explosive,
Ahmadnagar (Maharashtra) (ii) M/s. B.M. Traders, Bywara (M.P.), and
(iii) M/s. B.M. Traders, Bhilwara (Rajasthan). FIR/Crime No. 310 of
2010 recorded that 103 trucks of explosive material outbound from
RECL, Dholpur to M/s. Sangam Explosives at P.S. Chanderi (M.P.)
actually reached (i) M/s. B.M. Traders, Bywara (M.P.) and (ii) M/s.
Ajay Traders, Bhilwara (Rajasthan). As per FIR/Crime No. 427/2010,
M/s. RECL, Dholpur sold explosive material illegally to (i) M/s.
Ganesh Explosives, Sagar (M.P.) and (ii) M/s. Sangam
Explosives, Ashok Nagar (M.P.) after the expiry of their licences.
The same never reached the destinations and were diverted in their
middle to Bhilwara (Raj.), Bywara (M.P.) etc. The explosives were
also sold for terrorist activities which stood revealed from FIR
No.130/2010 P.S. Karol Bagh, New Delhi.
5. It was alleged in the petition filed by respondent No. 1
herein before the High Court that RECL was incorporated as a
private limited company in 1980; the factory of RECL at Dholpur,
Rajasthan got commissioned in 1981 & since then regular production
of explosives has been taking place there; and RECL was making
regular supplies amongst other dealers to M/s. Ganesh Explosives as
also to M/s. Sangam Explosives. It was alleged that what was
investigated and charge-sheeted by the police of P.S. Baheria and
P.S. Chanderi was put together and re-investigated by the P.S.
Dholpur. It was further alleged that when cognizance of selfsame
offence is taken by more than one court, then in such circumstances
Section 186 Cr.P.C. comes into play in order to cap such situation
and as the first court happened to be the Court of Judicial
Magistrate, First Class, Sagar, M.P. to have initiated proceedings
by taking congnizance of the offence upon submission of charge-
sheet by the police of P.S. Baheria in FIR/Crime No. 161/2010, that
court being the court in whose appellate criminal jurisdiction the
proceedings first commenced was the court vested with the requisite
jurisdiction under Section 186 Cr.P.C. to decide and make a
declaration. It was alleged that the sum and substance of the
allegations in the cases registered at P.S. Baheria, P.S. Chanderi
and P.S. Dholpur happen to be identical, relating to the same
occurrence/same transaction as also the same offence i.e. illegal
supply of explosives contrary to the Explosives Rules by RECL to
M/s. Ganesh Explosives and M/s. Sangam Explosives. Accordingly,
prayer was made to declare the criminal proceedings in the Court of
Chief Judicial Magistrate, Dholpur being violative of Section
186(b) Cr.P.C. and to discontinue the same.
6. The High Court by the impugned order dated 15.7.2011 while
allowing the petition filed by respondent No. 1 herein purportedly
to give effect to the provision of Section 186(b) of Cr.P.C. has
observed as under:
“On perusal of third FIR and charge sheet submitted in
that respect, it is apparently clear that in contravention of the
provisions of the Explosives Act, Rajasthan Explosives and
Chemicals Ltd. (RECL in short) Dholpur supplied explosives to M/s.
Ganesh Agency, Sagar and M/s. Sangam Agency, Chanderi. On perusal
of both earlier FIRs, it is revealed that there are 11 accused
persons facing trial in Sagar (M.P.) and 8 accused persons are
facing trial in Ashok Nagar (M.P.) Court. In the charge sheet
submitted on the basis of subsequent and third FIR, accused
persons and alleged offences are the same.
xxx xxx xxx
Admittedly, Rajasthan Court had taken cognizance of the
offence, which was already a subject matter of the case already
pending in the court of Sagar and also taken congnizance of the
case which has already been pending in the court of Ashok Nagar
(M.P.). The proceedings has first commenced in Sagar and in
Chanderi respectively within the jurisdiction of the High Court of
Madhya Pradesh, hence, subsequent proceedings initiated and
registered in Dholpur Court stands discontinued and is liable to
be discontinued.
Needless to write that this order will not be a bar to
deal with the offences which are not the subject matter of the
cases pending already in the courts of Madhya Pradesh.”
7. In the special leave petition, the appellant-State
of Rajasthan has contended that in connivance with respondent No. 1
herein 103 trucks of explosives were delivered to the Magazines of
M/s. Ajay Explosives which belongs to Shiv Charan Heda and 60
trucks of explosives to M/s. B.M. Traders which belongs to Deepa
Heda, both relatives of Jai Kishan Ashwani. It is alleged that the
magazines of M/s. Ganesh Explosives and M/s. Sangam Explosives are
not operational since many years and with the forged documentation
in the name of said firms the explosives were purchased by M/s.
Ajay Explosives and M/s. B.M. Traders and the explosives were then
sold to some unknown persons which are serious threat to the
security of the nation and one such example is the registration of
FIR in Crime No. 130/2010 P.S. Karol Bagh under Sections 4 and 5 of
the Explosive Substances Act in which the accused Loknath Pant, a
resident of Nepal was arrested and in whose custody 498 non-
electronic detonator and 29.12 meter fuse wire were recovered and
in the packing of the cartons it was revealed that the said
explosives were from RECL, Dholpur. It is contended that the High
Court has erred in law and fact by discontinuing the proceedings at
Dholpur (Rajasthan) because cause of action arose within the
jurisdiction of court at Dholpur and the territorial jurisdiction
of a court regarding criminal offence is to be decided on the basis
of place of occurrence of the incident and not on the basis of
where complaint was filed. It is further alleged in the special
leave petition that even the Committee comprising Sub-Divisional
Magistrate, Deputy Superintendent of Police and General Manager of
District Industrial Centre in its report submitted to the
Superintendent of Police, Dholpur has stated that the manufacturing
licence of RECL was valid till 31.3.2010 and the said company sold
the explosive material to M/s. Ganesh Explosives and M/s. Sangam
Explosives from the month of April 2010 till June 2010 illegally
when their licences too had expired and RECL has sold the material
in excess to the stipulated quantity mentioned in the licence. It
was found by the Committee that there was no receipt/proof with
RECL whether the trucks reached the destinations or not and further
RECL had violated the Explosive Rules. It is alleged that the
payments in lieu of sold explosive materials were made through the
Demand Drafts of ICICI Bank, Yes Bank, Axis Bank and Indusland Bank
situated at Rajkot and the payment was being made through the
agents of Ganga Enterprises, Sidhnath Enterprises, Govind Kripa
Enterprises, Thakkar Enterprises, Bhagwati Enterprises and Jyoti
Enterprises, Rajkot. These agents used to prepare the demand
drafts in the name of RECL and give to one Jagdish Soni (an accused
in FIR No.427/10 at Dholpur) who used to pass on the demand drafts
to Shiv Charan Heda (an accused in all the FIRs). These six
agents, who had been arrested on 22.12.2010 by Dholpur Police
Station upon a supplementary charge-sheet being filed and have not
been arrayed as accused in the proceedings pending in the courts at
Sagar and Chanderi (Madhya Pradesh), have been impleaded as
respondent Nos. 3 to 8 in the present proceedings. It is lastly
alleged that the respondent could not have filed the second
petition because he along with other office bearers of RECL has
withdrawn the first petition seeking quashing of proceedings in
Crime No. 161/2010 registered at P.S. Baheria on the ground that
they were already facing trial in Crime No. 427/2010 registered by
the Dholpur Police on the same set of charges and no liberty was
granted by the High Court to file a fresh petition.
8. The respondents impleaded in SLP(Crl.) No. 8402 of 2011,
have filed SLP (Crl.) No. 2180 of 2012 challenging the order dated
4.1.2012 passed by the High Court of Rajasthan, Bench at Jaipur
whereby the habeas corpus petition filed by them was disposed of
holding that the question of remand of the accused-petitioners in
FIR No. 427/2010, Kotwali Dholpur by the court in the State of
Rajasthan was in accordance with law or not and the detention of
the accused-petitioners is illegal, are the questions which are to
be adjudicated only after the issue of jurisdiction of courts in
Rajasthan pending before the Apex Court in SLP(Crl.) No. 8402 of
2011 is decided. The said SLP(Crl.) No. 2180 of 2012 was directed
to be put up along with SLP(Crl.) No. 8402 of 2011. Hence, both
the special leave petitions are before us.
9. While issuing notice in SLP(Crl.) No.. 8402 of 2011, this
Court on 25.11.2011 passed the following order:
“Mr. U.U. Lalit, learned senior counsel appearing for
respondent no.1 on caveat stated that though the High Court has
quashed the proceedings at the Dholpur Court in Rajasthan, the
respondents have no objection if the proceedings are continued at
Dholpur, but in that case the proceedings arising from the same
set of facts in the two Courts in Madhra Pradesh, i.e. at Sagar
and Chanderi may have to be quashed.
Issue notice to the non-appearing respondent on the
limited question whether the proceedings should continue at
Dholpur or at the two places (Sagar and Chanderi) in Madhya
Pradesh.”
10. The short question that falls for consideration in the
instant case is as to whether the proceedings should continue at
Dholpur or at the two places (Sagar and Chanderi) in Madhya
Pradesh.
11. Section 186, Cr.P.C., which deals with the power of the
High Court to decide, in case of doubt, the district where inquiry
or trial shall take place, is extracted hereinbelow:-
“186. High Court to decide, in case of doubt, district where
inquiry or trial shall take place.- Where two or more Courts
have taken cognizance of the same offence and a question arises
as to which of them ought to inquire into or try that offence,
the question shall be decided --
(a) if the Courts are subordinate to the same High Court,
by that High Court;
(b) if the Courts are not subordinate to the same High
Court, by the High Court within the local limits of whose
appellate criminal jurisdiction the proceedings were first
commenced,
and thereupon all other proceedings in respect of that offence
shall be discontinued.”
12. From bare reading of the aforesaid provision it is manifest
that the main object and intention of the Legislature in enacting
the provision is to prevent the accused persons from being
unnecessarily harassed for the same offences alleged to have been
committed within the territorial jurisdiction of more than one
courts. In order to avoid unnecessary harassment of the accused to
appear and face trial in more than one courts, necessary direction
is to be issued to discontinue the subsequent proceedings in other
courts. The provision is based on the principle of convenience and
expediency. However, the sine qua non for the application of this
provision is that the cases instituted in different courts are in
respect of the same offence arising out of the same occurrence and
that the same transaction and that the parties are the same. In
other words, the persons implicated as an accused in different cases
must be the same. If these conditions are satisfied then subsequent
proceeding has to be discontinued.
13. Chapter XXIV of the Code of Criminal Procedure deals with
the provisions with regard to the enquiries and trials. Section 300
debars the Court from proceeding with the trial in respect of the
same offence for which the accused has already been tried and
convicted or acquitted. However, a person convicted for any offence
may be afterwards tried if such act constituted a different offence
from that of which he was convicted. This Court elaborately dealt
with the provisions contained in Section 300 Cr.P.C. in the case of
State of Bihar v. Murad Ali Khan, (1988) 4 SCC page 655. Some of
the paragraphs are worth to be quoted hereinafter.
“26. Broadly speaking, a protection against a second or multiple
punishment for the same offence, technical complexities aside,
includes a protection against re-prosecution after acquittal, a
protection against re-prosecution after conviction and a
protection against double or multiple punishment for the same
offence. These protections have since received constitutional
guarantee under Article 20(2). But difficulties arise in the
application of the principle in the context of what is meant by
“same offence”. The principle in American law is stated thus:
“The proliferation of technically different offences encompassed
in a single instance of crime behaviour has increased the
importance of defining the scope of the offence that controls
for purposes of the double jeopardy guarantee.
Distinct statutory provisions will be treated as involving
separate offences for double jeopardy purposes only if ‘each
provision requires proof of an additional fact which the other
does not’ (Blockburger v. United States). Where the same
evidence suffices to prove both crimes, they are the same for
double jeopardy purposes, and the clause forbids successive
trials and cumulative punishments for the two crimes. The
offences must be joined in one indictment and tried together
unless the defendant requests that they be tried separately.
27. The expression “the same offence”, “substantially the same
offence” “in effect the same offence” or “practically the same”,
have not done much to lessen the difficulty in applying the
tests to identify the legal common denominators of “same
offence”. Friedland in Double Jeopardy (Oxford 1969) says at p.
108:
“The trouble with this approach is that it is vague and hazy and
conceals the thought processes of the court. Such an inexact
test must depend upon the individual impressions of the judges
and can give little guidance for future decisions. A more
serious consequence is the fact that a decision in one case that
two offences are ‘substantially the same’ may compel the same
result in another case involving the same two offences where the
circumstances may be such that a second prosecution should be
permissible....”
28. In order that the prohibition is attracted the same act must
constitute an offence under more than one Act. If there are two
distinct and separate offences with different ingredients under
two different enactments, a double punishment is not barred. In
Leo Roy Frey v. Superintendent, District Jail, the question
arose whether a crime and the offence of conspiracy to commit it
are different offences. This Court said: (SCR p. 827)
“The offence of 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.”
14. In the instant case, as noticed above, the nature and
manner of offences committed by the accused persons are not
identical but are different,
for example, in respect of FIR Crime
No.130 of 2010 the accused persons in connivance with respondent
No.1 delivered 103 trucks of explosives to the Magazines of M/s.
Ajay Explosives which belonged to Shiv Charan Heda and 60 trucks of
explosives to M/s. B.M. Traders which belonged to Deepa Heda. It was
alleged that the Magazines of M/s. Ganesh Explosives and M/s. Sangam
Explosives were not operational since many years and with the forged
documentation in the name of the said firms the explosives were
purchased by M/s. Ajay Explosives and M/s. B.M. Traders and
subsequently those explosives were sold to some unknown persons.
In
respect of those FIRs, one accused, a resident of Nepal, was
arrested and from whose custody 498 non electronic detonators were
recovered.
In respect of another FIR, during investigation, it has
come on the record that those explosives were sold for terrorist
activities.
15. Offence means any act or omission made punishable by law.
The fountain head of all the three cases may be at Dholpur from
where truck loaded with explosives moved to different destinations
but from that it cannot be said that the acts and omissions which
constitute the offence are the same.
Same offence, in our opinion,
would mean that acts and omissions which constitute the offence are one and the same.
Except the allegation that the explosives were
loaded at Dholpur, the mode and manner in which the offence was
committed at different places are not the same.
As such, in our
opinion, the provision of Section 186 of the Code is not attracted
in the facts of the present case. Hence, the High court erred in
passing the impugned order.
16. In the facts and circumstances of the case, we are of the
considered opinion that the impugned order passed by the High Court
is to be set aside. Consequently, the appeal preferred by the State
of Rajasthan is allowed and the appeal preferred by the accused
stands disposed of.
….…………………………….J.
(Chandramauli Kr. Prasad)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
December 17, 2013.
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