Baij Nath Prasad Tripathi vs The State Of Bhopal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 13 February 1957

Coram: S. K. DAS

In this matter, the Supreme Court considered two petitions filed under article 32 of the Constitution of India that sought appropriate writs to restrain the State of Bhopal from prosecuting and trying the petitioners on certain criminal charges, a question of law common to both petitions and therefore decided together. The petitioner in petition number one, Baij Nath Prasad Tripathi, had been a Sub‑Inspector of Police in the former State of Bhopal and had been prosecuted before the Special Judge, Shri B. K. Puranik, in Bhopal. He was convicted of offences punishable under section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act, 1947, and was sentenced to rigorous imprisonment for nine months on each count. The petitioner appealed the conviction and sentence to the Judicial Commissioner of Bhopal. The Commissioner, in a judgment dated 7 March 1956, held that no statutory sanction had been obtained for the prosecution, that the Special Judge lacked jurisdiction to take cognizance, and consequently that the trial was void ab initio and the proceedings ought to be set aside. Accordingly, the Commissioner dismissed the conviction and quashed the entire trial, observing that the parties were placed in the position as if no charge‑sheet had ever been filed. Subsequently, on 4 April 1956, the Chief Commissioner of Bhopal issued an order under section 7(2) of the Criminal Law Amendment Act, 1952 (No. XLVI of 1952) directing that the petitioner be retried before another Special Judge, Shri S. N. Shri‑vastava, for the same offences under the Prevention of Corruption Act read with section 161 of the Indian Penal Code. The petitioner contended that the second trial violated article 20(2) of the Constitution, which bars double prosecution for the same offence, and also contravened section 403 of the Code of Criminal Procedure, which prevents a second trial when a prior conviction or acquittal stands. The Court examined these submissions and held that the provisions of article 20(2) did not apply because the earlier proceedings had been declared null and void and therefore did not constitute a previous prosecution or punishment. Moreover, the earlier trial had not been conducted by a court of competent jurisdiction, and no conviction or acquittal existed within the meaning of section 403(1) of the Code of Criminal Procedure to bar a fresh trial. Relying on precedents such as Yusofalli Mulla v. the King, A.I.R. (1949) P.C. 264; Basdeo Agarwalla v. the King‑Emperor, (1945) F.C.R. 93; and Budha Mal v. Delhi, Criminal Appeal No. 17 of 1952, decided in October 1952, the Court affirmed that the second trial was permissible. The judgment was delivered by Justice S. K. Das, with counsel appearing for the petitioners and for the respondents, including the Solicitor‑General of India and other counsel.

In this case, the petitioner first appealed his conviction and sentences to the Judicial Commissioner of Bhopal. The Judicial Commissioner delivered a judgment on 7 March 1956 in which he held that the law required a proper sanction before a prosecution could be instituted and that such sanction had not been obtained with respect to the petitioner. Consequently, the Commissioner concluded that the Special Judge who had taken cognizance of the case lacked jurisdiction and that the trial was therefore invalid from the outset. Based on this determination, the Commissioner set aside the conviction, ordered the complete quashing of the proceedings before the Special Judge, and observed that the parties would be placed in the position as if no legal charge‑sheet had ever been filed against the appellant.

Subsequently, on 4 April 1956 the Chief Commissioner of Bhopal issued an order under section 7(2) of the Criminal Law Amendment Act, 1952 (No. XLVI of 1952) directing that the petitioner be tried by Shri S. N. Shrivastava, Special Judge, Bhopal, for certain offences under the Prevention of Corruption Act, read with section 161 of the Indian Penal Code. The petitioner contended that, by virtue of this order, he could not be prosecuted and tried again for the same offences that had already been the subject of the earlier quashed proceedings.

Another petitioner, Sudhakar Dube, who was also a Sub‑Inspector of Police in the former State of Bhopal, faced prosecution in the Court of Shri B. K. Puranik, Special Judge, Bhopal, on a charge of accepting an illegal gratification in order to show official favour to a person named Panna Lal. On 10 January 1956 the Special Judge issued an order finding that no legal sanction for the petitioner's prosecution had been given by a competent authority and that the sanction purportedly provided by the Inspector General of Police was not valid under the law. The Judge therefore held that the entire trial was void and that he could not take cognizance of the alleged offences, leading him to quash the proceedings.

Later, on 7 February 1956, the Chief Secretary to the Government of Bhopal accorded a fresh sanction for prosecuting the petitioner for offences under section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act. In response, the petitioner approached this Court seeking appropriate writs to prevent the respondents from prosecuting and trying him on the basis of the new sanction. Both petitioners argued that, on account of clause (2) of Article 20 of the Constitution and section 403 of the Code of Criminal Procedure, they could not now be tried for the offences in question. To address this contention, the Court noted the necessity of examining certain relevant statutory provisions, beginning with section 6 of the Criminal Law Amendment Act, 1952, as it stood before the amendment made in 1955, which provides that the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for specified areas.

The Court explained that the offences covered by the sanction order comprised two categories. The first category included any offence punishable under section 161, section 165, or section 165‑A of the Indian Penal Code, as well as the offence specified in sub‑section (2) of section 5 of the Prevention of Corruption Act, 1947. The second category covered any conspiracy to commit, any attempt to commit, or any abetment of any offence falling within the first category. The Court then referred to subsection (1) of section 7 of the Criminal Law Amendment Act, 1952, which provided that, notwithstanding any provision of the Code of Criminal Procedure, 1898 or any other law, the offences enumerated in subsection (1) of section 6 could be tried only by special Judges. The same provision further allowed a special Judge, while trying a case, to try any other offence not specified in section 6 if the accused could be charged with that offence under the Code of Criminal Procedure at the same trial. The Court observed that it was unnecessary to read the remaining provisions of the Criminal Law Amendment Act for the present purpose. Turning to the Prevention of Corruption Act, 1947, the Court quoted section 6, which required that no court could take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code, or under sub‑section (2) of section 5 of that Act, unless a prior sanction was obtained. The sanction had to be issued by the authority competent to remove the public servant: the Central Government for a Union employee not removable except by that authority, the State Government for a State employee not removable except by that authority, or the appropriate authority for any other person. Sub‑section (2) of the same section directed that if there was any doubt as to whether the sanction should be given by the Central Government, the State Government, or any other authority, the sanction must be granted by the authority that would have been competent to remove the public servant at the time the alleged offence occurred. The Court noted that this provision was the basis for requiring sanction before the petitioners could be prosecuted. The petitioners relied upon clause (2) of Article 20 of the Constitution, which states that no person shall be prosecuted and punished for the same offence more than once. They also relied heavily on section 403(1) of the Code of Criminal Procedure, which provides that a person who has once been tried by a court of competent jurisdiction for any offence and convicted or acquitted of that 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 that might arise from a different charge under sections 236 or 237.

Section 403(1) of the Code of Criminal Procedure provides that a person who has once been tried by a court of competent jurisdiction for any offence and who has been convicted or acquitted shall, while that conviction or acquittal remains in force, not be liable to be tried again for the same offence. The provision further states that the person cannot be tried again on the same facts for any other offence for which a different charge might have been made under section 236, or for which he might have been convicted under section 237.

The argument advanced by the petitioners’ counsel is essentially settled by three authorities. The first authority is a decision of the Privy Council in Yusofalli Mulla v. The King (1). The second authority is a decision of the Federal Court in Basdeo Agarwalla v. King‑Emperor (2). The third authority is a decision of this Court, not yet reported, in Budha Mal v. State of Delhi (3), rendered on 3 October 1952. The Privy Council decision is directly on point. It held that the foundation of section 403(1) is that the initial trial must be before a court that is competent to hear and determine the case and to record a verdict of conviction or acquittal. If the court hearing the first trial lacks the required competence – for example because the sanction necessary for the prosecution was not obtained – the fact that the court might otherwise be competent to try other cases of the same class or even the same accused in different circumstances is irrelevant.

The judgment of this Court also addressed the same question. The Court observed that section 403 of the Criminal Procedure Code applies only where an acquittal order has been made by a court of competent jurisdiction. It does not prohibit a retrial of an accused where such an order has been made by a court that did not have jurisdiction to take cognizance of the case. The record makes it clear that, because a valid sanction was absent, the appellant was initially tried by a magistrate who lacked jurisdiction to try him.

Having considered the pronouncements in the three cited decisions, the Court found it unnecessary to engage in a further or more detailed discussion of the petitioners’ point. The petitioners’ counsel had made an energetic attempt, comparable to a crusade, to demonstrate that the Privy Council decision was erroneous and that the earlier decision of this Court required reconsideration. After hearing the counsel’s submissions in full, the Court concluded that the authorities cited correctly state the applicable law. The Court therefore held that clause (2) of article 20 of the Constitution does not apply to the present cases. The petitioners are not

In these proceedings the petitioners contended that they were being prosecuted and punished for the same offence more than once, arguing that the earlier proceedings had been declared null and void. The Court examined the effect of section 403 of the Code of Criminal Procedure and observed that the petitioners had not been tried in the earlier proceedings by a court possessing competent jurisdiction, and that there was no conviction or acquittal that fell within the meaning of section 403(1) of the Code. Consequently, the Court held that the lack of a valid conviction or acquittal could not operate as a bar to a new trial for the same alleged offences. The petitioners’ counsel drew the Court’s attention to sections 190, 191, 192, 529 and 530 of the Code of Criminal Procedure, asserting that the statute, in certain circumstances, distinguished between “jurisdiction” and the act of “taking cognizance.” The entire argument of the petitioners rested on this distinction. Assuming, for the sake of argument, that one magistrate might take cognizance while another might try the accused, the Court found it difficult to conceive how any court could lawfully try the petitioners in the absence of a sanction required by the mandatory provision of section 6 of the Prevention of Corruption Act, 1947. If a court is unable to take cognizance of the offences without a legal sanction, it follows that no court can be said to possess competent jurisdiction to try those offences, and any trial conducted without such sanction must be void. Accordingly, the sections of the Code relied upon by the petitioners’ counsel had no bearing on the matter. In particular, section 530 of the Code expressly provides that if a magistrate who is not empowered by law to try an offender does so, the proceedings shall be void. Likewise, section 529(e) is a narrow exception dealing only with taking cognizance of an offence under section 190(1)(a) and (b); it does not apply where a statutory sanction is required and none has been obtained.

The petitioners’ counsel also referred to observations made by Braund J in the Allahabad High Court decision of Basdeo v. Emperor, wherein the judge distinguished between “taking cognizance” and “jurisdiction.” That distinction arose in a case where a magistrate, properly empowered to commit cases to the Sessions Court, improperly committed the accused to the Sessions Court in breach of section 254 of the Code of Criminal Procedure, raising the question of whether the Sessions Court became incompetent to try the case because of the irregularity. The Court noted that the factual backdrop of that decision was wholly different from the present cases, and that there was no occasion or necessity to invoke the mandatory provisions of section 6 of the Prevention of Corruption Act. Accordingly, the Court concluded that the observations in Basdeo v. Emperor could not be pressed in support of the petitioners’ argument, as they did not establish any abstract legal proposition applicable outside the specific factual context of that earlier case.

The Court observed that the observations made in the earlier case cannot be invoked by the petitioners’ counsel as if those observations constituted universal legal principles that are independent of the factual circumstances in which they were originally expressed. In other words, the Court held that the earlier remarks must be read in the context of the facts that gave rise to them and cannot be abstracted to support a legal proposition in the present proceedings. While acknowledging the submissions of the petitioners’ counsel, the Court nevertheless indicated that, out of respect for their arguments, it had examined the matters raised by them, albeit only in a concise manner. The Court then referred to a previous authority, specifically the decision reported at (1) A.I.R. T045 All. 340, stating that the issue under consideration has already been resolved by the decisions of the highest judicial authority, and that those decisions correctly articulate the governing law. Consequently, the Court concluded that the petitions before it are entirely without merit. Accordingly, the Court ordered that the petitions be dismissed, and entered a final order that the petitions were dismissed.