# 19~7 Ramji Lai Modi v. Tht State of U.P

- **Citation:** [1957] 1 S.C.R. 868
- **Court:** Supreme Court of India
- **Decided:** 1956-11-01
- **Case number:** Criminal appeals Nos. 130 and 131 of 1954
- **Bench:** S. R. DAs C.J, Jafer Imam, S. K. DAs, GoVINDA MENON, A. I).. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/19-7-ramji-lai-modi-v-tht-state-of-u-p-1379
- **Pages:** 6

## Headnote

Autrefois acquit-Trial for offences under s. 409 of the Indian
Penal Code and s. 5(2) of the Prevention of Corruption ActAcquittal of charge under s. 5(2)-Whether conviction under s. 409
barred-Code of Criminal Procedure s. 403-Constitution of India
Art. 20(2 )-General Clauses Act s. 26.
'fhe accused was tried by a Special Judge for offences under
s. 409 of the Indian Penal Code and s. 5(2) of the Prevention of
Corruption Act.
He was convicted under s. 409 but the Judge
held that the accused could not be tried under s. 5(2) as there had
been no investigation by a police officer not below the rank of a
Deputy Superintendent of Police.
Upon appeal by the accused
against the conviction under s. 409, the High Court applying the
doctrine of autrefois acquit held that the order of
the Judge in
respect of the charge under s. 5(2) was tantamount to an acquittal
for that offence and on the same facts no conviction coul<l be had
under s. 409 :
Held, that the offences under s. 409 of the Indian Penal Code
and under s. 5(2) of the Prevention of Corruption Act were distinct
and separate and there could be no objection to a trial and convic·
tion under s. 409 even if the accused had been acquitted under
s. 5(2).
Om Prakash Gupta v. The State of U.P., [1957) S.C.R.423,
applied.
Section 403( I) of the Code of Criminal Procedure has no
application where there is only one trial for several offences, of
some of which the accused person is acquitted though convicted
of one.
Article 20 of the Constitution also docs not apply where
the accused had not already been\ tried and acquittl"'r' for the same
offence ·in an earlier trial.
•
S.C.R.
SUPREME COURT REPORTS
869
Where there are two alternate charges in the same trial, the
fact that the accused is acquitted of one of them will not prevent
the conviction on the other.
CRIMINAL
APPELLATE
JuRisDICTION:
Criminal
appeals Nos. 130 and 131 of 1954.
Appeals by special leave from th~ judgment and
order dated September 11, 1953, of the former Madhya
Bharat High Court in Appeals Nos. 42 and 43 of 1953.
Shiv Dayal and R. H. Dhebar, for the appellant.
B. C. Misra, amicus curiae, for the respondent.
1957. April 5.
The Judgment of the Court was
delivered by
GoVINDA MENON J.-The State of Madhya Bharat,
which after November 1, 1956, had become merged in
the present State of Madhya Pradesh, had obtained
special leave from this court on April 11, 1954, ' to
appeal against the judgment and order of acquittal
passed in favour of the respondent herein, by the
High Court of Judicature of Madhya Bharat on September 11, 1953, in two consolidated Criminal Appeals
Nos. 42 and 43 of 1953, by the identical appellant
before that court. The question for decision in these
two appeals is how far the High Court was justified in
ordering the acquittal.
the respondent herein was a Tax-Collector in the
Municipal Committee of Lashkar, Gwalior, and was
prosecuted in the court of the City Magistrate and
Additional
District
Magistrate,
Lashkar,
firstly
by
means of a challan dated October 23, 1951, for offences
under ss. 468, 477-A and 409 of the Indian Penal
Code and s. 5(2) of the Prevention of Corruption Act. II
of 1947, in that he misappropriated a sum of more than
Rs. 7,000, entrusted to him in the capacity of TaxCollector, and during the course of the said transaction
committed various offences.
On July 4, 1952, a second
complaint was filed against him in the same court
under the identical sections for having misappropriated
in 1950 a sum of Rs. 3500 in all under similar
circumstances. While these two complaints were pending in the trial court, on July 28, 1952, the Criminal
1957
The. State of
Madhya Pradesh
v.
Veertshwar Rao
~gnihotry
Govinda Mnton 11
870
SUPREME COURT REPORTS
(19571
Law Amendment Act (Act No. 46 of 1952) came into
force and by s. 6 of that statute, the State Government was authorised to appoint a Special Judge for
the trial of an offence under sub-s. (2) of s. 5 of the
Prevention of Corruption Act II of 1947. Sec

## Text

19~7
Ramji Lai Modi
v.
Tht State of U.P.
Das C. J.
1957
April 5·
868
SUPREME COURT REPORTS
(1957]
arise and the decisions relied upon by learned counsel
for the petitioner have no application to this case.
For the reasons stated above, the impugned section
falls well within the protection of cl. (2) of Art. 19 and
this application must, therefore, be dismissed.
'
Application dismissed.
THE ST A TE OF MAD HY A PRADESH
fl.
VEERESHW AR RAO AGNIHOTRY
(S. R. DAs C.J., JAFER IMAM, S. K. DAs, GoVINDA
MENON and A. I).. SARKAR JJ.)
Autrefois acquit-Trial for offences under s. 409 of the Indian
Penal Code and s. 5(2) of the Prevention of Corruption ActAcquittal of charge under s. 5(2)-Whether conviction under s. 409
barred-Code of Criminal Procedure s. 403-Constitution of India
Art. 20(2 )-General Clauses Act s. 26.
'fhe accused was tried by a Special Judge for offences under
s. 409 of the Indian Penal Code and s. 5(2) of the Prevention of
Corruption Act.
He was convicted under s. 409 but the Judge
held that the accused could not be tried under s. 5(2) as there had
been no investigation by a police officer not below the rank of a
Deputy Superintendent of Police.
Upon appeal by the accused
against the conviction under s. 409, the High Court applying the
doctrine of autrefois acquit held that the order of
the Judge in
respect of the charge under s. 5(2) was tantamount to an acquittal
for that offence and on the same facts no conviction coul<l be had
under s. 409 :
Held, that the offences under s. 409 of the Indian Penal Code
and under s. 5(2) of the Prevention of Corruption Act were distinct
and separate and there could be no objection to a trial and convic·
tion under s. 409 even if the accused had been acquitted under
s. 5(2).
Om Prakash Gupta v. The State of U.P., [1957) S.C.R.423,
applied.
Section 403( I) of the Code of Criminal Procedure has no
application where there is only one trial for several offences, of
some of which the accused person is acquitted though convicted
of one.
Article 20 of the Constitution also docs not apply where
the accused had not already been\ tried and acquittl"'r' for the same
offence ·in an earlier trial.
•
S.C.R.
SUPREME COURT REPORTS
869
Where there are two alternate charges in the same trial, the
fact that the accused is acquitted of one of them will not prevent
the conviction on the other.
CRIMINAL
APPELLATE
JuRisDICTION:
Criminal
appeals Nos. 130 and 131 of 1954.
Appeals by special leave from th~ judgment and
order dated September 11, 1953, of the former Madhya
Bharat High Court in Appeals Nos. 42 and 43 of 1953.
Shiv Dayal and R. H. Dhebar, for the appellant.
B. C. Misra, amicus curiae, for the respondent.
1957. April 5.
The Judgment of the Court was
delivered by
GoVINDA MENON J.-The State of Madhya Bharat,
which after November 1, 1956, had become merged in
the present State of Madhya Pradesh, had obtained
special leave from this court on April 11, 1954, ' to
appeal against the judgment and order of acquittal
passed in favour of the respondent herein, by the
High Court of Judicature of Madhya Bharat on September 11, 1953, in two consolidated Criminal Appeals
Nos. 42 and 43 of 1953, by the identical appellant
before that court. The question for decision in these
two appeals is how far the High Court was justified in
ordering the acquittal.
the respondent herein was a Tax-Collector in the
Municipal Committee of Lashkar, Gwalior, and was
prosecuted in the court of the City Magistrate and
Additional
District
Magistrate,
Lashkar,
firstly
by
means of a challan dated October 23, 1951, for offences
under ss. 468, 477-A and 409 of the Indian Penal
Code and s. 5(2) of the Prevention of Corruption Act. II
of 1947, in that he misappropriated a sum of more than
Rs. 7,000, entrusted to him in the capacity of TaxCollector, and during the course of the said transaction
committed various offences.
On July 4, 1952, a second
complaint was filed against him in the same court
under the identical sections for having misappropriated
in 1950 a sum of Rs. 3500 in all under similar
circumstances. While these two complaints were pending in the trial court, on July 28, 1952, the Criminal
1957
The. State of
Madhya Pradesh
v.
Veertshwar Rao
~gnihotry
Govinda Mnton 11
870
SUPREME COURT REPORTS
(19571
Law Amendment Act (Act No. 46 of 1952) came into
force and by s. 6 of that statute, the State Government was authorised to appoint a Special Judge for
the trial of an offence under sub-s. (2) of s. 5 of the
Prevention of Corruption Act II of 1947. Section 7 of
the same statute laid down that notwithstanding anything contained in the Criminal Procedure Code, or
any other law for the time being in force, an offence
under s. 5(2) of the Prevention of Corruption Act
could be tried only by a Special
Judge, appointed
under s. 6 of the Criminal Law Amendment Act.
Sub-cl. (b) of s. 7 laid down that when trying a case,
triable exclusively by
a
Special
Judge under this
statute, he may also try any other offence with which
the accused may under the Code of Criminal Procedure
be charged at the same trial.
The last section of the
Criminal Law Amendment Act aforesaid provided that
all cases triable by a Special Judge under s. 7. which
immediately before the
commencement of
the
Act
were pending before any Magistrate, shall on such
commencement be forwarded for trial to the Special
Judge having jurisdiction over such cases.
In accordance with
the
above-mentioned
provisions
of
the
statute, the cases pending before the City Magistrate
and
Additional
District
Magistrate, Lashkar,
were
transferred
to a Special
Judge constituted
for
the
purpose before whom they were numbered as Case
No. 3 of 1953 and No. 6 of 1953. After the pro<ec
tion evidence was over, on March 10, 1953, the Special
Judge framed charges under all the sections complained
against.
By separate
judgments dated June 5, 1953,
the Special Judge found the respondent guilty of an
offence under s. 409 of the Indian Penal Code and
sentenced him
to
rigorous
imprisonment for
three
years. He, however, passed an order of acquittal under
ss. 468 and 477-A, of the Indian Penal Code. As
regards the charge under s. 5(2) of Act II of 1947, the
learned Special Judge wa< of the view that since the
provisions of sub-s. ( 4) of s. 5 of the Prevention of
Corruption Act to the effect that no police
officer
below the rank of Deputy Superintendent of Police
shall investigate any offence punishable under sub-s. (2)
S.C.R.
SUPREME COURT REPORTS
871
of s. 5 of the Prevention of Corruption Act without
an order of a 1st Class Magistrate, had not been
complied
with,
the
foundation
for
preferring
a
complaint had not been established
and, therefore,
there was an illegality which affected the jurisdiction
of the court to try the case, the result being that the
accused could not be tried for that offence. Such
being ~e case, no formal order of acquittal was passed
by the trial court.
Aggrieved by the convictions under s. 409 of the
Indian
Penal
Code,
the
respondent
preferred
two
appeals to the High Court of Madhya Bharat which
were consolidated by that· court, and by a common
judgment that court applying the doctrine of autrefois
acquit held that when once on the same 'facts the trial
Judge found that the respondent could not be found
guilty of an offence under s. 5(2) of the Prevention of
Corruption Act, it was tantamount to an acquittal for
that offence in which case no conviction could be had
under s. 409 of the Indian Penal Code. The respondent was, therefore, acquitted.
As mentioned already,
the State has been granted special leave to appeal
against the orders of acquittal.
The correctness of the conclusion of the High Court
has been challenged in more ways than one by the
appellant's counsel.
Firstly,
it is argued
that the
offence under s. 5(2) of the Prevention of Corruption
Act and that under s. 409 of the Indian Penal Code,
are not the same, and such being the case, granting
that the order of the Special Judge amounted to an
acquittal under s. 5(2) of the Prevention of Corruption
Act, still that would not bar the conviction of the
respondent under s. 409 of the Indian Penal Code.
Secondly, it is pointed out that when at the same trial
there are two alternative charges like those with which
we are now concerned, acquittal of the accused under
one charge is no impediment to his conviction on the
other; and lastly it is contended that any defect in
the investigation would not amount to an illegality
which would invalidate the trial and conviction if the
proceedings culminate that way.
1957
The State of
Madhya Pradesh
v.
V emshwar Rao
Agni/wiry
Govinda Menon J.
1957
T/,. Stau ef
Madhya Pradesh
v.
Veweshwar Rao
Agnihatry
Gouinda Menon],
872
SUPREME COURT REPORTS
[1957}
This court has recently held in Om Prakash Gupta v.
The State of U. P. (1), that the offence of criminal
rr.isconduct punishable under s. 5(2) of the Prevention
of Corruption Act II of 1947 is not identical in essence,
import and content with an offence under s. 409 of the
Indian Penal Code.
The offence of criminal misconduct is a new offence created by that enactment
and it does not
repeal by implicatio11
or
abrogate
s. 409 of the Indian Penal Code.
In the common judgment in those appeals the conclusion has been expressed
in the following words :-
"Our conclusion,
therefore,
is
that the offence
created under s. 5(1)(c) of the Prevention of Corruption
Act is clistinct and separate from the one under s. 405
I.P.C. and, therefore, there can be
no
question of
s. 5 ( 1) ( c) repealing s. 405 LP .C."
In view of the above pronouncement, the view taken
by the learned JPdge of the High Court that the two
offences are one and the same is wrong, and if that is
so, there can be no objection to a trial and conviction
under s. 409 of the Indian Penal Code, even if the
respondent has been acquitted of an offence under
s. 5(2) of the Prevention of Corruption Act II of 1947.
Section 403(1) of the Criminal Procedure Code only
prohibits a subsequent trial for the same offence, or on
the same facts for any other offence for which a
different charge from the one made against an accused
person might have been made under s. 236 of the
Criminal Procedure Code, or for which he might have
been convicted under s. 237 when the earlier conviction
or acquittal for such an offence remains in force. It is
obvious that s. 403(1) has no application to the facts of
the present case, where there was only one trial for
several offences, of some of which the accused person
was acquitted while being convicted of one. On this
grounrl alone the order of the High Court is liable to be
set aside. The High Court also relied on Art. 20 of the
Constitution for the order of acquittal but that Article
cannot apply because the respondent was not prosecuted
after he had already been tried and acquitted for the
same offence in an earlier trial and, therefore, the
(1) [1957] S.C.R. 423.
S.C.R.
SUPREME COURT REPORTS
873
well-known maxim "Nemo debet bis vexari, si constat
curice quod sit pro una et eadem causa" (No man shall be
twice punished, if it appears to the court that it is for
one and the same cause)" embodied in Art. 20 cannot
apply.
The next argument on behalf of the appellant is that
where there are two alternate charges in the same trial,
the fact that the accused is acquitted of one of them,
will not prevent the conviction on the other, is also
well-founded. Section 26 of the General Clauses Act
can be called in aid in support of this proposition.
There is no question of double jeopardy.
Section 26
runs as follows :-
"Provisions as to offences punishable under two or,
more enactments: Where an act or omission constitutes
an offence under two or more enactments then the
offender shall be liable to be prosecuted and punished
under either or any of those enactments, but shall not
be liable to be punished twice for the same."
We ;ire, therefore, of the opinion that the learned
Judge's view on this aspect of the case is also unsound.
In view of what has been stated above, it is unnecessary to deal with the last contention of the learned
counsel for the appellant except merely to state that
the Special Judge had jurisdiction to try the accused
person under s. 7 of the Prevention of Corruption
Act, 1947.
The result is that the appeals succeed, the order of
the High Court acquitting the respondent of an offence
under s. 409 of the Indian Penal Code is set aside and
the appeals are remanded to the High Court of Madhya
Pradesh for re-hearing on the merits.
1957
TM Stale of
Madhya Pradesh
v.
Yeereshwar Rao
Agnihot')"
Gooinda Menon J.