Double Jeopardy: No person shall be tried twice [CASE]

 A Bench of the Supreme Court of India comprising of  Justices Dinesh Maheshwari and Vikram Nath dismissed appeal of the victim/appellant and confirmed the order of Sessions Court where the accused was discharged for the offence under Section 376 IPC because of want of jurisdiction and also on the resonance  view that the accused having gone through the trial and  acquitted, cannot be subjected to trial for the same charges on the same facts under the rule of double jeopardy  as contained in Article 20(2) of the constitution of India and also Section 300 of the CrPC.

        In the present appeal, major issue arose with regard to territorial jurisdiction for the offence pertaining to Section 376 IPC and segregation of charges, calls for examination in the appeal. The principle question that is called for determination in the present case is  as to whether the allegations against the accused of committing rape, hurling abuses and extending threats, pertaining to offences under Section 376, 504 and 506 IPC falls within the ambit of ‘one series of acts so connected together as to form the same transaction’ for the purpose of trial together in terms of Section 220 of the Code of Criminal Procedure, 1973?

    

        Before elaborating on the case, it would be proper to mention that it is the case of appellant/victim. The accused/respondent was charged of the offences under Sections, 376, 504 and 506 of IPC on the basis of accusation by his fiancé. The Sessions judge, discharged the accused in relation to the offence under Section 376 IPC for want of jurisdiction on the basis of contentions urged on behalf of the accused that the entire offence under Section 376 IPC took place at Delhi which was beyond the territorial jurisdiction of the Court and the Court is not competent to try the offence. 

 

        The Session Court , in an impugned order stated that the offence which took place at Delhi is not a continuing one and whatever  threat was allegedly given by the accused to the victim, it did not constitute a kind of offence which could be said to be in the series of same transaction. But the Court found it just and proper to remit the matter to the Court of Judicial Magistrate for trial of the remaining offences pertaining to Sections 504 and 506 IPC which are exclusively triable by the Magistrate.

 

        The Judicial Magistrate too acquitted the accused under Sections 504 and 506 because the Prosecution Witness failed to prove that the accused hurled abuses and gave death threats to the complainant/ victim/appellant.

 

        Therefore the above order was challenged by the appellant in the High Court. but the High Court confirmed the order of acquittal by dismissing the revision petition of the appellant/victim. The Court by an impugned order observed that in case of acquittal, even if two views were possible, the Appellate Court would not reverse the finding of acquittal unless the finding was perverse and that there was no perversity, illegality and jurisdictional error in the order impugned

 

        The impugned orders of the High Court and Sessions Court were challenged before the Supreme Court by way of an appeal by appellant.

 

FACTS OF THE CASE:

 

        The appellant and the respondent were engaged for matrimonial alliance at their village in November 2015.  Upon invitation by respondent the appellant went to Delhi in February and March 2016 where they had  sexual intercourse against her wishes, as alleged by the appellant. The respondent thereafter demanded money and refused to marry her when the demand was not met. Then later on, in the November 2016, the respondent hurled abuses and threatened the appellant over telephone at her village.

 

CONTENTIONS OF THE APPELLANT:

 

        The  accused/respondent has been wrongly discharged of the offence under Section 376 IPC without the learned Sessions Judge appreciating that the offences forming the part of the same transaction could not have been segregated on the ground of want  of territorial jurisdiction.  The learned counsel referred to Sections 178 and 179 with Sections 220 Cr.PC  and has emphasized that in this case, the offences pertaining to Sections 376, 504 and 506 IPC formed the part of same transaction and their segregation, as ordered by the learned Sessions Judge in the order, has resulted in miscarriage of justice.

[Satvinder Kaur v. State (Govt. of NCT of Delhi) and Anr.: (1999) 8 SCC 728]

 

        The appellant has consistently maintained her stand that she was subjected to forcible sexual intercourse by the respondent No. 2 on the threat of ending the matrimonial alliance. Learned counsel argued that in view of this consistent stand of the appellant, the respondent No. 2 ought to have been put to trial for the offence under Section 376 IPC, which could not have been segregated from other offences.

 

        The consent given by the appellant for having physical relationship under fear or misconception could not have been treated as a valid consent; and even as per the presumption provided by Section 114- A of the Evidence Act, 1872, the respondent No. 2 ought to face trial for the offence under Section 376 IPC.

 

        The order for acquittal  for the  offences under Sections 504 and 506 IPC, deserve to be quashed because this trial has taken place before the Judicial Magistrate only because of segregation of the said offences with the offence under Section 376 IPC, which is triable only by the Court of Sessions.

 

        By  setting aside the order of segregation, the entire matter deserves to be put to trial for the offence under Section 376 IPC along with other offences under Sections 504 and 506 IPC.

 

        The Sessions Judge had erroneously discharged the accused on the ground of lack of territorial jurisdiction, the High Court summarily dismissed the petition without giving any reason as to its conclusion.

 

        The High Court acquitted the accused without appreciating that it had not been a case of acquittal in terms of Section 232  CrPC but had been discharged in terms of Section 227 CrPC.

 

CONTENTION OF THE RESPONDENT, THE STATE:

 

        The learned counsel for the State while supporting the appellant  referred to Sections 78(d), 179, 180, 184 read with Sections 220(1) and 220(3) of CrPC, that the Sessions Judge was indeed competent to try the accused for the offence under Section 376 IPC along with the offences under Sections 504 and 506 IPC for the said offences formed the series of same transaction.

 

        The  trial conducted by the Judicial Magistrate after segregation of charges under Section 376 IPC from Sections 504 and 506 IPC stands vitiated in terms of Clause (I) of Section 461 CrPC. Hence de novo trial of the accused under Sections 376 ,504 and 506 IPC is required to be conducted by the Court of Sessions Judge

 

         In the offence of rape, the solitary evidence of prosecutrix is sufficient to hold the accused without any need of corroboration. Where the prosecutrix has consistently maintained in the FIR that she was forced by the accused to establish physical relations under the threat of cancelling the marriage, the offence under Section 376 IPC is clearly made out.

 

CONTENTIONS OF THE ACCUSED/RESPONDENT NO. 2

 

        The  Learned counsel for the accused-respondent No. 2  submitted that in terms of Section 218 Cr.PC, separate charges are required to the framed for separate offences and they are to be tried separately. It has been contended that in the present case, the learned Sessions Judge rightly took into account the fact that though the appellant and the respondent no 2 got engaged in Uttarakhand but the incident of physical relationship occurred at Delhi. Thus the learned counsel, referring to the case of Sunita Kumari Kashyap v. State of Bihar and Anr.: (2011) 11  SCC 301 submitted that the offence under Section 376 IPC had rightly been segregated and the respondent No. 2 had rightly been discharged on account of lack of territorial jurisdiction of the Courts at Chamoli in relation to the said offence.

 

        It has also been argued that even in relation to Sections 178 and 179 Cr.PC, the evidence collected during investigation made it clear that the alleged offence under Section 376 IPC had taken place only at Delhi; that the offence of rape is not a continuing offence; and that the alleged threat given by the respondent No. 2 to the appellant on phone had not been a kind of offence which could be said to be of a series of acts forming the same transaction. The learned counsel has referred to the case of Sunita Kumari Kashyap v. State of Bihar and Anr. (2011) 11 SCC 301 and has submitted that looking to the nature of accusations, the matter relating to the offence under Section 376 IPC had rightly been segregated in the present case.

 

        The accused is rightly acquitted of the charges pertaining to Sections 504 and 506 IPC by the Judicial Magistrate with a finding that the appellant/victim had failed to furnish any material evidence in relation to those allegations and in view of the matter, the offence under Section 376 IPC cannot hold ground any further.

 

 

        The use of expression ‘acquittal’ in place of the expression ‘discharge’ had only been a matter of human error, though the order under challenge was duly examined by the High Court.

FINDINGS OF COURT

        The cases referred by the appellant and the respondent State do not render assistance to the present case as the fact situations  in the present case are different because the complaint made by the appellant is the allegations of different offences, of different nature and at different places of occurrence.

 

        For  determining the question that arose in the present case that whether the acts complained of could be said to ‘one series of acts so connected together as to form the same transaction’ for the purpose of trial together, the Court referred to some cases namely Mohan Baitha and Ors. V State of Bihar and Anr.(2001) 4 SCC 350 and Anju Chaudhary v. State of Uttar Pradesh and Anr. (2013) 6 SCC 384,  wherein it was indicated the elements like proximity of time, unity or proximity of place, continuity of action and community of purpose or design are of relevant considerations and when these factors are applied to common sense and ordinary use of language, the vexed question of ‘same transaction’ could be reasonably determined.

        The Hon’ble Court endorsed the view of the Sessions Court that offence of rape being committed in Delhi, the offence of rape is not continuing offence, the alleged threats to the appellant on phone were not constituting such offences as to form a series of acts with the first mentioned offence of rape.

        The Apex Court viewed that it is not the case the respondent attempted to coerce her into the same physical relationship while hurling abuses or threatening to kill at the later part of time. Thus it is difficult to find continuity of actions and community of purpose or design in two different acts leading to two different set of offences i.e under Section 376 IPC and Sections 504 and 506 IPC.

        The Court observed that accused cannot be sent to trial again for offences under Section 504 and 506 after the accused is acquitted of charges under Sections 504 and 506, and even when  he could be tried by jurisdictional Sessions Court in respect of Section 376 because the offence could not be tried by Judicial magistrate.

    As per the contention of the State Counsel that the trial by the magistrate stands vitiated under Section 461 CrPC, the top Court rejected the same stating that the Magistrate  was in no way lacking the power and authority to try the offences under Sections 504 and 506 IPC. The accused having gone through the trial and  acquitted, cannot be subjected to trial for the same charges on the same facts under the rule of double jeopardy  as contained in Article 20(2) of the constitution of India and also Section 300 of the CrPC – Supreme Court observed.

        Hence in the present case while agreeing the decision of  learned Session Judge, the Apex Court held that the alleged offence under Sections 376, 504 and 506 do not fall within the ambit of ‘one series of acts so connected together as to form the same transaction for the purpose of trial together in terms of section 220 CrPC.

 

 

Ms. P  Versus State Of Uttarakhand & Anr. (Criminal Appeal No. 903 Of 2022)

DOJ: 16.06.2022.

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