Section 218 deals with separate charges for distinct offences. Section 219 provides that three offences of the same kind can be clubbed in one trial committed within one year. Section 220 speaks of trial for more than one offence if it is the same transaction.
There may be a conspiracy in general one and a separate one. There may be larger conspiracy and smaller conspiracy which may develop in successive stages involving different accused persons. When offences have been made in various years by combination of different accused persons, there can be separate trials on the basis of law laid down by Supreme Court in Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC 322 wherein Supreme Court has laid down thus :
“11. ….The offences alleged in the first case were Section 120B read with Section 420 and Section 406, Indian Penal Code, while the offences alleged in the second case were Section 120B read with Section 411, Indian Penal Code and Section 25 of the Antiquities and Art Treasures Act, 1972………. We are clear, in the present case, that the conspiracies which are the subject-matter of the two cases cannot be said to be identical though the conspiracy which is the subject-matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject-matter of the second case. As we mentioned earlier, when investigation commenced in FIR. R.C. 4 of 1976, apart from the circumstance that the property involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.”
There can be different trials for the same offence if tried under two different enactments altogether and comprised of two different offences under different Acts/statutes without violation of the provisions of Article 20(2) or Section 300 Cr.P.C. Supreme Court has decided the issue in various cases:-
(a) In Kharkan & Ors. v. The State of U.P. (1964) 4 SCR 673 Supreme Court has laid down thus :
“Even if the two incidents could be viewed as connected so as to form parts of one transaction it is obvious that the offences were distinct and required different charges. The assault on Tikam in fulfilment of the common object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it. The new common object to beat Puran was formed at a time when the common object in respect of Tikam had been fully worked out and even if the two incidents could be taken to be connected by unity of time and place (which they were not), the offences were distinct and required separate charges. The learned Sessions Judge was right in breaking up the single charge framed by the magistrate and ordering separate trials. In this view the prior acquittal cannot create a bar in respect of the conviction herein reached.” (Emphasis Supplied)
(b) In Maqbool Hussain v. The State of Bombay (1953) SCR 730 Supreme Court has laid down thus :
“Appellant had smuggled gold into India and was booked under section 167(8) of the Sea Customs Act, 1878 and subsequently when no one came to claim the gold, he was charged 11/8 8 0f FERA. He challenged this as violation of Article 20(2). The Court analysed the scope of Article 20(2) and held that the “prosecution” must be before a court of law or judicial tribunal. The plea of double jeopardy was discarded as it was held that the Customs authorities were not a judicial tribunal or court. For double jeopardy, the test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials.”
(c) In State of Bombay v. S.L. Apte (1961) 3 SCR 107 a Constitution Bench of Supreme Court has laid down as to the issue regarding conviction under Section 409 I.P.C. and Section 105 of Insurance Act. The submission of double jeopardy was repelled with respect to offences under Section 11 of I.P.C. and Section 105 of Insurance Act. It was held that the offences under both the Acts are distinct due to their ingredients. So as to constitute double jeopardy two offences should be identical.
(d) In T.S. Baliah v. T.S. Rengachari (1969) 3 SCR 65, appellant was sought to be prosecuted under Section 177 I.P.C. and Section 52 of Income Tax Act, 1922 for furnishing wrong information in his tax returns. On consideration of Section 26 of General Clauses Act, Supreme Court held that the provision did not provide a bar on trial and conviction for the same offence under more than one enactment in case ingredients of offences are distinct. It only barred double punishment and not double conviction.
(e) In V.K. Agarwal v. Vasantraj B. Bhatia, 1988(2) RCR (Criminal) 264 : (1988) 3 SCC 467 the question arose whether acquittal of an accused charged with having committed the offence punishable under section 111 read with Section 135 of Customs Act, 1969 created a legal bar to the accused, subsequently being prosecuted under section 85 of the Gold (Control) Act, 1968. It was held that the ingredients of offence under each of the enactments were quite different.
The Court applied the test developed in Maqbool Hussain (supra) and held the two offences to be different in scope and contents of their ingredients. The Court also relied upon S.L. Apte’s decision (supra) and observed that what is necessary is to analyse the ingredients of the two offences and not the allegations made in two complaints. No doubt about it that there can be separate offences but ingredients would remain same under penal provision but that would also not make out a case of violating the provisions of Article 20(2) of the Constitution and Section 300 Cr.P.C.
(f) In case ingredients of the offences to be tried separately arise out of the same offence, there can be separate trials under two enactments, if the ingredients constituting two offences are different under different Acts, there is no bar for separate trials. In State of Bihar v. Murad Ali Khan & Ors. (1988) 4 SCC 655 it was held :
“The expression “any act or omission which constitutes any offence under this Act” in section 56 of the Wild Life (Protection) Act, 1972 merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also. Further held that, if there are two distinct and separate offences with different ingredients under two different enactments. a double punishment is not barred. The same set of facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law.”
(g) In State of Rajasthan v. Hat Singh & Ors., 2003(1) RCR (Criminal) 437 : (2003) 2 SCC 152 Supreme Court was dealing with vires of Rajasthan Sati (Prevention) Act, 1987. It was urged that sections 5 and 6 of new Sati Act were overlapping. It was held that with regard to Article 20(2) that subsequent trial or a prosecution and punishment are not barred if the ingredients of two offences are distinct. There can be separate offences from same set of facts and hence no double jeopardy.
(h) In Monica Bedi v. State of Andhra Pradesh, 2011(1) RCR (Criminal) 19 : (2011) 1 SCC 284 Supreme Court considered the meaning of the expression “same offence” employed in Article 20(2) and observed that second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. Supreme Court has observed thus :
“26. What is the meaning of the expression used in Article 20(2) “for the same offence”? What is prohibited under Article 20(2) is, that the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. ….
x x x x x
29. It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20(2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence.”
(i) In Sangeetaben Mahendrabhai Patel v. State of M.P. (2012) 7 SCC 621, with respect to double jeopardy, Supreme Court has laid down thus :
“33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or section 300 Code of Criminal Procedure. or section 71 Indian Penal Code or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.”
(j) In State of Rajasthan v. Bhagwan Das Agrawal, 2014(1) RCR (Criminal) 513 : 2014(1) Recent Apex Judgments (R.A.J.) 186 : (2013) 16 SCC 574 there were 3 FIRs. registered with respect to illegal supply of explosives. Charge was under the Explosives Act. Supreme Court held that the nature and manner of the offences committed by the accused persons were not identical but were different, and as such FIRs. were not relating to the same offence as different acts happened in different places. As such the provisions contained in Section 186 Cr.P.C. would not apply.
(k) In State of NCT of Delhi v. Sanjay etc., 2014(4) RCR (Criminal) 211 : (2014) 9 SCC 772 Supreme Court considered the maxim “nemo debet bis vexari pro una et eadem causa” i.e. no man shall be put in jeopardy twice for one and the same offence. In case ingredients are different there can be separate trial for the same offence also. Supreme Court has laid down thus :
“52. It is well known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offences are distinct.”
Reference
State of Jharkhand v. Lalu Prasad Yadav (2017)