Allowed

Nirbhay Kumar Shahbadi And Ors. v. State of Jharkhand And Anr.

Jharkhand HC18 Apr 2023Cr.M.P./1708/2011

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings filed by the Excise Department against petitioners, holding that Section 300(1) Cr.P.C. bars trial as they were previously acquitted on the same facts.

What did the court decide?

The prosecution arising out of Excise Case No. 233 of 1987 is hereby quashed.

What the court decided

Nirbhay Kumar Shahbadi And Ors. Vs State of Jharkhand And… — Cheque Dishonour | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1708 of 2011

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Nirbhay Kumar Shahbadi @ Nirbhay Kumar

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Nirmal Kumar

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Abhay Kumar Shahbadi @ Abhay Kumar

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Bimal Kumar

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Raj Kumar Shahbadi @ Raj Kumar ..... … Petitioners

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Versus

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The State of Jharkhand. 2. Sub-Inspector (Excise), Flying Squad, Giridih. ..... … Opposite Parties

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioners : Mr. Rajesh Kumar, Advocate. : Mr. Amit Kumar, Advocate. : Mr. Manindra Kumar Sinha, Advocate. For the State : Mr. Bishambhar Shastri, A.P.P.

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16/ 18.04.2023 Heard learned counsel for the parties.

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This petition has been filed for quashing of the order dated 28.07.2011, passed by the learned District & Sessions Judge, Giridih, in Criminal Revision No. 53 of 2011, whereby he has been pleased to dismiss the said petition by way of affirming the order dated 13.05.2011, passed by the learned Judicial Magistrate, 1^st Class, Giridih, in connection with Excise Case No. 233 of 1987 (T.R. No. 02 of 2011), at that time the case was pending in the court of learned Judicial Magistrate, 1^st Class, Giridih [now the case has been transferred to the court of learned Special Court for cases involving M.P.’s and M.L.A.’s at Dhanbad vide this court memo No. 69/Apt. dated 12.02.2020].

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Prior to present case, the FIR, being Giridih Town P.S. Case No. 89 of 1987 corresponding to G.R. No. 731 of 1987 was instituted against the petitioners.

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The complaint case was filed stating therein that on 11.03.1987 a raid was conducted by the Income Tax authorities in the residential house of the petitioners and all the business premises of the petitioners including the Cinema hall of the petitioners namely Swarn Chitra Mandir at Giridih. During the raid in Swarn Chitra Mandir which is a Cinema hall, Income Tax authorities alleged that they have found foreign liquors worth Rs. 11.00 lacs and odd from the generator room of the hall and subsequently on the next date i.e. 12.03.1987 by another Income Tax Office the said generator room was sealed after locking the said room and they proceeded with keys of the room. It is further alleged that on 5.06.1987 the Income Tax officials revisited the premises and when they

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opened the seal of the room, they alleged that the liquors kept there are missing and accordingly a Police case was lodged on 5.06.1987 against the petitioners under Section 406, 204 of the Indian Penal Code read with Section 275A of the Income Tax Act and the said case was registered as Giridih Town P.S. Case No. 89/87 corresponding to G,R. No. 731/87. The said FIR was forwarded to the Excise Department, on the basis of which, the Excise Department has also filed a complaint on 24.07.1987, which is the subject matter of present petition.

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Mr. Rajesh Kumar, learned counsel appearing for the petitioners submits that in the first case, the petitioners have faced the trial and they have been convicted, however, against the order of conviction, the petitioners have moved before the learned appellate court in Criminal Appeal No. 15 of 2008, in which, by judgment dated 29.08.2011, the petitioners have been acquitted considering that all the important witnesses have not come forward to give the evidence. He submits that for the same allegation, the present complaint has been filed on the basis of the FIR and this is the double jeopardy and in that view of the matter Section 300 Cr.P.C. is attracted. He further submits that the learned revisional court has not appreciated Section 300(1) in its right perspective. On these grounds, learned counsel appearing for the petitioners submits that the entire proceedings so far as these petitioners are concerned may kindly be quashed.

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On the other hand, Mr. Bishambhar Shastri, learned A.P.P. appearing for the State submits that on the basis of Income Tax Raid, the present complaint has been filed and the allegations in the present complaint is different.

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In view of such submissions of the parties, the court has gone through the contents of the first FIR and the contents of the present complaint, which is the subject matter of the present case and finds that the complaint case was filed on the basis of search and seizure prepared by Income Tax Department on 11.03.1987, the witness is also shown to be same in column-6 of the present complaint. Apart from the allegations of first FIR, nothing new has been stated in the present complaint and the learned trial court has also held that admittedly, it is the fact that both the cases, i.e. the present one and the Giridih Town P.S. Case No. 89 of 1987 are related to the raid made by the Income Tax Department on 11.03.1987, in spite of that the learned court has held that Section 300 Cr.P.C. is not

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coming into operation and the same was also affirmed by the revisional court.

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The contents of the first FIR clearly suggest that for the same allegation, the present complaint has been filed. In the first FIR, the petitioners have been convicted by the learned trial court, however, the learned appellate court has acquitted them.

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Section 300(1) of the Cr.P.C. speaks that a person once convicted or acquitted not to be tried for the same offence. The said Section reads as follows:-

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“(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under subsection (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.”

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In view of the above, it is crystal clear that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution of India. While, Article 20(2) of the Constitution of India only states that no one can be prosecuted and punished for the same offence more than once. Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence, but on the same facts. In the case in hand the earlier FIR was on the same facts and on the same background, the present complaint case has been filed and there is no difference on the facts in both the cases, as such Section 300(1) Cr.P.C. applies.

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Consequently, the prosecution arising out of Excise Case No. 233 of 1987 (T.R. No. 02 of 2011), at that time the case was pending in the court of learned Judicial Magistrate, 1^st Class, Giridih [now the case has been transferred to the court of learned Special Court for cases involving M.P.’s and M.L.A.’s at Dhanbad vide this court memo No. 69/Apt. dated 12.02.2020], are hereby, quashed. It is well settled that if injustice is done even after the revision, the High Court can exercise the power under Section 482 Cr.P.C.

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In view of the above, this petition is allowed and disposed of.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

Nirbhay Kumar Shahbadi And Ors. v. State of Jharkhand And Anr.

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Nirbhay Kumar Shahbadi And Ors. v. State of Jharkhand And Anr.

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