Dismissed

Arvind Kumar v. the Union of India

Patna HC16 May 2014CR. MISC./39426/2011

Case brief

AI extract

What is this about?

Petitioner sought quashing of an order directing re-trial after his acquittal in an NDPS case. The High Court held that because the original trial violated mandatory Chapter XVIII Cr.P.C. procedures required by Section 36C NDPS Act, it lacked jurisdiction. Thus, Section 300 Cr.P.C. did not bar re-trial.

What did the court decide?

Petition dismissed; stay order of 07.12.2011 vacated; directions to expedite hearing.

Arvind Kumar Vs the Union of India — Criminal Trial and Appeal | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39426 of 2011

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====================================================== Arvind Kumar S/O Late Sri Ram Surat Prasad Sah Resident Of MohallaPanch Mandir Road, Mothiari, P.O.- Mothiari, P.S.- Town, Distt.- East Champaran.

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.... .... Petitioner/s Versus The Union Of India .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Vikash Kumar Sharma, Advocate. For the Opposite Party/s : Mr. N.A.Shamsi, Assistant Solicitor General ====================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA CAV ORDER

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5 16-05-2014

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Heard.

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2 . The present petition has been filed by the petitioner seeking the quashing of order dated 20.09.2011 passed by Sessions Judge-cum-Special Judge(NDPS Cases), Muzaffarpur in Customs (NDPS) Case No.60 of 2007-08 by which, the learned Judge, acting in the light of the judgment of this Court in Cr.Appeal (SJ) No.277 of 2010, put the above case again on trial and directed the issuance of summons to the petitioner for his appearance on date fixed, i.e., 21.10.2011.

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3 . Some of the bare facts, so as to appreciating the issue involved herein, may be noticed. It appears that a Bolero Jeep bearing registration no.BR-05P-0582 was intercepted by a team of officers of the Customs Department, Muzaffarpur on an information that it was carrying contraband ganja and accordingly

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on search the jeep was found carrying 136 K.G. of ganja, which was seized by preparing seizure memo and a complaint petition bearing Customs Case No.60 of 2007-08 was filed before the Special Court Muzaffarpur. Cognizance of offence was taken and the trial commenced and it appears that during the trial which was held by the learned Sessions Judge-cum-Special Judge, Muzaffarpur P.Ws.1 to 9 were examined as per the provisions of Section 244 Cr.P.C. which provision related to the trial before a Magistrate in respect of cases instituted otherwise than on police report, that is to say, on a complaint petition. The evidence of P.Ws.1 to 9 under Section 244 Cr.P.C. and their further crossexamination under Section 246 Cr.P.C. was recorded from 20.02.2008 to 27.05.2009 and the evidence of P.Ws.10 was recorded properly by following the procedures of Chapter XVIII, that is, the procedure set down for trial before a Court of Sessions. The judgment was delivered by the learned Sessions Judge on 25.01.2010 and the petitioner Arvind Kumar was acquitted of the charges under Sections 20(b)(ii) and 29 of the NDPS Act while co-accused Mahendra Baitha was held guilty of committing an offence under Section 20(b)(ii)(c) of the NDPS Act. The convicted accused Mahendra Baitha preferred above noted Cr.Appeal (SJ) No.277 of 2010 and that incidentally, was heard by me on 19^th of May, 2011 and noting that the trial of the case was considered by

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following a complete wrong procedure by the learned Sessions Judge-cum-Special Judge, Muzaffarpur, I set aside the judgment in its entirety and directed the re-trial of the case by holding that the evidence of witnesses by following a wrong procedure and also by departing from the trial procedure necessary to be followed which were contained in Chapter-XVIII Cr.P.C. which procedures were only applicable by virtue of Sections 36C of the NDPS Act vitiated the very trial. While doing so, I had left the evidence of P.W.10 intact and had directed the re-trial as regards the evidence of P.Ws.1 and 9 which appears from paragraphs-5,6 and 7 of the judgment dated 19^th May, 2011 passed in the above noted criminal appeal.

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4. The solitary ground raised before me by the learned counsel appearing for the petitioner was that in the light of Section 300 Cr.P.C., the re-trial of the petitioner was not permissible as he had already been acquitted.

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5. Section 300 Cr.P.C. reads as under:

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300. Person once convicted or acquitted not to be tried for same offence.

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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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(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former

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trial under sub-section (1) of section 220.

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(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.

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(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

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

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(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.

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6. Thus, what may appear from the above provision is

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that once an accused has been „tried by a Court of competent jurisdiction‟ for an offence and convicted or acquitted of the charge while such conviction or acquittal was in forced, he was not to be tried again for the same offence. Thus, what appears is that the first condition for applying the provisions of Section 300 Cr.P.C. is that the trial has to be by a Court having competent jurisdiction to try the offence. The word „trial‟ has not been defined in the Cr.P.C. or any where in any of the procedural laws but what appears from the plain meaning of the word „trial‟ is that it should be an examination of issue or a charge by taking evidence by a competent court by following the procedures set

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down under law in that behalf. It may be possible that a court may be competent to try the offence on account of its jurisdiction but if it follows the wrong procedure then, in my opinion, it could not be a trial as per Section 300 Cr.P.C. as the trial is definitely not as per law and procedure. The jurisdiction of the Court may also be a relevant factor as regards the law which empowers it to try the offence. To elucidate, a Special Judge under the NDPS Act is a Court of Sessions and as per Section 36C, the Code of Criminal Procedure is applicable to the proceeding before a Special Court so far as it is not in derogation of the provisions of the NDPS Act. The same provision also points out that the Special Court has to be a Court of Sessions prosecution before which has to be conducted by a public prosecutor. Thus, the jurisdiction of the Court is very much defined as regards following the procedure for trying the offence. This has been made very much clear by legislation through adoption which is reflected in Section 36D of the NDPS Act that the Special Court which is the Court of Sessions, has to follow the procedure of Chapter-XVIII Cr.P.C. as the NDPS Act does not prescribe any other procedure for trial of an offence under the said Act. In absence of any special provision as regards the procedure to be followed by the Special Court in trying the offences under the NDPS Act, the Special Court is bound to follow the procedure under Chapter-XVIII of the Cr.P.C. This

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may be appreciated more clearly if one could consider the provisions of Section 5 of the Prevention of Corruption Act, 1998 which, though lays down that the Special Judge shall be the Sessions Judge and the Special Court shall be the Court of Sessions, directs that for trying an offence under the Prevention of Corruption Act, the Special Judge is to follow the procedure in respect of trial of a warrant case. What I want to emphasize is that when there is a specific direction by the legislature to try a particular offence in a particular manner by following a particular set of provisions, then the trial has to be conducted only in accordance with those provisions, else not at all. I have already noted that the Special Court under the NDPS Act is the Court of Sessions and as per Section 36C it has to conduct its proceeding as per the provisions of Code of Criminal Procedure. The NDPS Act does not contain any provision directing that the Special Court may follow any other procedure than those contained in Chapter XVIII Cr.P.C. and in absence of such legislative direction it has always to be noted that the Special Court has to try an offence only under Chapter XVIII of the Cr.P.C.

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7 . If a Court is following a wrong procedure, then it is not trying the offence as per its jurisdiction because jurisdiction to try an offence, in my opinion, is always dependent upon following the set of provisions enacted for trying the offence. If a court is

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following a procedure which is at all not applicable to such trial proceeding, as is specifically directed to be followed, then the trial, in my considered view, is without jurisdiction. In the present case also I am very much clear in my opinion that the very trial of the offence by the learned Special Judge between 20.02.2008 to 27.05.2009 in Customs (NDPS) Case No.60 of 2007-08 was in complete derogation of the procedures prescribed in that behalf and thus was in lack of jurisdiction. As such, the acquittal of the appellant by following a wrong procedure could not entitle him to the protection of Section 300 Cr.P.C. as, in fact, his acquittal was not at all an appropriate and lawful acquittal. In holding the above view as regards the lack of jurisdiction, I am supported by a judgment of this Court in the case of Md. Yasin v. King-Emperor AIR 1926 reported in AIR 1926 Patna 302 also by Bhuban Mohan Bose v. The State reported in AIR 1958 Calcutta 202.

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8 . Learned counsel appearing for the petitioner cited before me three decisions and I find that one reported in AIR 1966 Supreme Court 69 also supports my view as regards the application of Section 300 (old 403) Cr.P.C. when it was held by the Supreme Court as follows:-

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“For the bar under S. 403 (1) to operate, the accused must have been (a) tried by a Court, (b) which is of competent jurisdiction and (c) acquitted of the offence alleged to have been committed by him or an offence with which he might have been charged under S. 236 or for which he might have been convicted under

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S. 237 of the Code. …………………… The competence of a Court depends not merely on the circumstances that under some law it is entitled to try a case falling in the particular category in which the offence alleged to have been committed by the accused falls. In addition to this taking cognizance of the offence is also material in this regard.”

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9 . The other judgments cited by the learned counsel appearing for the petitioner, like, AIR 1960 Andhra Pradesh 1 Thadi Narayana v. The State of Andhra Pradesh and AIR 2007 SC 2397 Balbir Singh v. State of Delhi did not appear applicable for the reason that there was a complete lack of jurisdiction in the present case on account of following a wrong set of provisions.

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10 . The learned counsel appearing for the petitioner was strenuously arguing that because, the present petitioner has been acquitted, he could not be re-tried. I may point out that the above contention does not appear holding good. As soon as the very trial has been found not as per the provisions of the law and, as such, outside the jurisdiction of the competent court, the order of acquittal could be of no effect. Merely, because a Sessions Judge was a Special Judge was not creating competence in him to try the offence. It has always to be considered in light of the fact that no other trial procedure could be followed except the set of provisions contained in Chapter-XVIII in the light of Section 36C of the NDPS Act while trying an accused or an offence. As soon as the learned Special Judge-cum-Sessions Judge, Muzaffarpur

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was found having not followed the provision of Chapter-XVIII Cr.P.C., the trial was very much in inherent lack of jurisdiction and, as such, the acquittal could not be supported and it could not accrue any benefit of such acquittal to any accused like the present petitioner . The above view of my is directly supported by AIR 1958 Calcutta 2002, Bhuban Mohan Bose v. The State as also by the decision of this Court in Md. Yasin (supra).

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11 . Thus, I find that the present petition lacks merit and the same is dismissed. I find that by an order passed on 07.12.2011 the further proceedings before the Special Judge-cum-Sessions Judge, Muzaffarpur in connection with Customs (NDPS) Case No.60 of 2007-08 was stayed by a Bench of the Court. The said order is hereby vacated and the learned trial Judge is directed to expedite the hearing.

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(Dharnidhar Jha, J) Patna High Court, Dated 16^th May, 2014, Brajesh Kumar/AFR

Arvind Kumar v. the Union of India

Case brief

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Arvind Kumar v. the Union of India

Case brief

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