# Council namely Sambasivam v. Public Prosecutor Federation

- **Citation:** [1964] 4 S.C.R. 673
- **Court:** Supreme Court of India
- **Decided:** 1961-01-31
- **Bench:** S. K. Das, Acting C.J, M. Hidayatullah, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/council-namely-sambasivam-v-public-prosecutor-federation-3181
- **Pages:** 8

## Headnote

Crim£nal
Procedure-Two incidents-Trial
separate-Prior
acquittal in one-If operates as bar to conviction in another caseCode of Criminal Procedure, 1898 (Act V of 1898), ss. 403, 236,
237.
The eight appellants variously armed attacked one 'T' and as
a result of the assault 'T' died.
These appellants then proceeded to loot the house of '1'' and on the way met four others who
joined them.
They then came across one 'P' and assaulted him.
There was a small gap of time and the places of
assault
were different.
The magistrate framed a single charge but
the
Session }' 1dge framed two charges namely one connected with the
attack on 'T' and the other connected with the attack on 'P'. He
also separated the trials on the two charges.
The Sessions Judge
convicted the appellants in both cases. The appeal in the second
case £.e. the case relating to assault on 'P' was heard first by
the
High Court and the appellants \Vere acquitted of the charges
of
being members of an unlavvful assembly. Later the appeal connected
with the assault,,. on 'T' was heard by the High Court and in
that appeal their convictions and sentences were confirmed.
The
present appeal arises out of the convictions and sentences passed
by the High Court. The appellants contended that the prior acquittal in the second case operated as a bar to the conviction in
the present case.
The appellants relied on a decision of the Privy
Council namely Sambasivam v. Public Prosecutor Federation
of
Malaya and of this Court in Pritan1 Singh v. State of Punjab.
Held: (i) There was nothing in common between the present
appeal and the aforesaid two cases relied upon by the appellants.
In this case the assault on 'T' was over when the unlawful assembly formed its ne\v comn1on object namely the assault on 'P'.
(ii) A plea of autrefois acquit which is statutorily recognised
in India under s. 403 of the Code of Criminal Procedure arose
when a person is tried again for the same offence or on the same
facts for any other offence for which a different charge from the
one made against him might have been made under s. 236 or for
whi.ch he might have .been convicted under s. 237. The prior acquittal in the other case did not operate as a bar to the conviction in the
present case as the charge in the other case \Vas quite different
from and independent of the charge in the present case, and ss.
236 and 237 of Code of Criminal Procedure were not applicable
to the present facts because the two offences were distinct.
Sambasivam v. Public Prosecutor Federation of Malaya, [ 1950]
A.C. 458, Pntam Singh v. State of Puniab, A.l.R. 1956 S.C. 415,
Gurcharan Singh v. State of Puniab, [1963] 3 S.C.R. 585 and
1963
August 29
()74
SUPREME COURT REPORTS
[1964)
1963
Mohinder Singh v. State of Puniab, Cr. A. No. HO of 1961 decided on 31-7-63, explained.
Kharkan and
others
v.
The State
of U.P.
H idayatullah, J.
(iii) This court, in the absence of special circumstances, docs
not review for the third time evidence which has been accepted in
the High Court and the trial court.
CRIMINAL APPELLATE Ju&1smcTioN : Criminal Appeal
No. 95 of 1%1.
Appeal by special leave from the jucfgment and order
dated February 15, 1%1, of the Allahabad High Court in
Criminal Appeal No. 1597 of 1%0.
D.S. Tewatia and K. B. Mehta, for the appellants.
0. P. Rana and C. P. Lal, for the respondents.
August 29, 1%3. The Judgment of the Court was delivered by
HIDAYATULLAH J.-This is an appeal by special leave
against the Judgment of the High Court of Allahabad
in Criminal Appeal No. 1597 of 1%0 decided on February
15, 1%1. The appellants are eight in number and they
have been convicted under s. 325 read with s. 149 of the
Indian Penal Code and sentenced to three years rigorous
imprisonment. They have also been convicted variously
under ss. 147 & 148, Indian Penal Code and sentenced to
smaller terms of imprisonment which need not be mentioned as those sentences are made to run concurrently
with the above sentence. They were originally charged under

## Text

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4 S.C.R.
SUPREME COURT REPORTS
673
KHARKAN AND OTHERS
ti.
THE STATE OF U.P.
(S. K. DAS, ACTING C.J., M. HIDAYATULLAH AND K. c.
DAS GUPTA, JJ.)
Crim£nal
Procedure-Two incidents-Trial
separate-Prior
acquittal in one-If operates as bar to conviction in another caseCode of Criminal Procedure, 1898 (Act V of 1898), ss. 403, 236,
237.
The eight appellants variously armed attacked one 'T' and as
a result of the assault 'T' died.
These appellants then proceeded to loot the house of '1'' and on the way met four others who
joined them.
They then came across one 'P' and assaulted him.
There was a small gap of time and the places of
assault
were different.
The magistrate framed a single charge but
the
Session }' 1dge framed two charges namely one connected with the
attack on 'T' and the other connected with the attack on 'P'. He
also separated the trials on the two charges.
The Sessions Judge
convicted the appellants in both cases. The appeal in the second
case £.e. the case relating to assault on 'P' was heard first by
the
High Court and the appellants \Vere acquitted of the charges
of
being members of an unlavvful assembly. Later the appeal connected
with the assault,,. on 'T' was heard by the High Court and in
that appeal their convictions and sentences were confirmed.
The
present appeal arises out of the convictions and sentences passed
by the High Court. The appellants contended that the prior acquittal in the second case operated as a bar to the conviction in
the present case.
The appellants relied on a decision of the Privy
Council namely Sambasivam v. Public Prosecutor Federation
of
Malaya and of this Court in Pritan1 Singh v. State of Punjab.
Held: (i) There was nothing in common between the present
appeal and the aforesaid two cases relied upon by the appellants.
In this case the assault on 'T' was over when the unlawful assembly formed its ne\v comn1on object namely the assault on 'P'.
(ii) A plea of autrefois acquit which is statutorily recognised
in India under s. 403 of the Code of Criminal Procedure arose
when a person is tried again for the same offence or on the same
facts for any other offence for which a different charge from the
one made against him might have been made under s. 236 or for
whi.ch he might have .been convicted under s. 237. The prior acquittal in the other case did not operate as a bar to the conviction in the
present case as the charge in the other case \Vas quite different
from and independent of the charge in the present case, and ss.
236 and 237 of Code of Criminal Procedure were not applicable
to the present facts because the two offences were distinct.
Sambasivam v. Public Prosecutor Federation of Malaya, [ 1950]
A.C. 458, Pntam Singh v. State of Puniab, A.l.R. 1956 S.C. 415,
Gurcharan Singh v. State of Puniab, [1963] 3 S.C.R. 585 and
1963
August 29
()74
SUPREME COURT REPORTS
[1964)
1963
Mohinder Singh v. State of Puniab, Cr. A. No. HO of 1961 decided on 31-7-63, explained.
Kharkan and
others
v.
The State
of U.P.
H idayatullah, J.
(iii) This court, in the absence of special circumstances, docs
not review for the third time evidence which has been accepted in
the High Court and the trial court.
CRIMINAL APPELLATE Ju&1smcTioN : Criminal Appeal
No. 95 of 1%1.
Appeal by special leave from the jucfgment and order
dated February 15, 1%1, of the Allahabad High Court in
Criminal Appeal No. 1597 of 1%0.
D.S. Tewatia and K. B. Mehta, for the appellants.
0. P. Rana and C. P. Lal, for the respondents.
August 29, 1%3. The Judgment of the Court was delivered by
HIDAYATULLAH J.-This is an appeal by special leave
against the Judgment of the High Court of Allahabad
in Criminal Appeal No. 1597 of 1%0 decided on February
15, 1%1. The appellants are eight in number and they
have been convicted under s. 325 read with s. 149 of the
Indian Penal Code and sentenced to three years rigorous
imprisonment. They have also been convicted variously
under ss. 147 & 148, Indian Penal Code and sentenced to
smaller terms of imprisonment which need not be mentioned as those sentences are made to run concurrently
with the above sentence. They were originally charged under s. 302 read with s. 149, Indian Penal Code for the murder of one Tikam on January 24, 1%0 at about noon in village Nandgaon Police Station Barsana District Mathura.
The Session Judge, Mathura, did not think that a case
of murder was made out and convicted them of the lesser offence. Their appeal to the High Court was dismissed and the conviction and sentences were maintained.
There was yet' another trial at which these eight persons and four others were tried under s. 307 /149, Indian
Penal Code for causing hurt to one Puran with such intention and under such circumstances that if by that act
they had caused his death they would have been guilty
of murder and also under ss. 147 & 148 of the Penal Code
for being members of an unlawful assembly, the common object of which was an attempt on Puran's life.
The learned Sessions Judge, Mathura held in the second
case that the injuries sustained by Puran warranted an
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4 S.C.R.
SUPREME COURT REPORTS
675
offence under s. 323, Indian Penal Code. The accused and
Puran compounded that offence and all the accused
were acquitted.
The Sessions Judge, however, convicted 11 out of 12 accused under ss. 147 & 148, Indian Penal
Code and awarded different
sentences,
according to
the weapons possessed by them.
One Koka was acquitted because his plea that he was blind from birth was
accepted. The 11 accused in the second case appealed to
the High Court and were acquitted of the charge of being members of an unlawful assembly. That Judgment
of the High Court was delivered on January 31, 1961, in
Criminal Appeal No. 1598 of 1%0, fifteen days before
the confirmation of the conviction and sentences of the
eight appellants in this appeal. The facts of the case may
now be given.
There was enmity between Tikam (deceased) and the
appellants and on January 24, 1960, just about noon
time Tikam was sitting at the shop of a blacksmith in
village Nandgaon. Dulli and Nathi who were examined
as P. W s. 2 & 3 were sitting near him. The appellants
who were armed with Ballams, a Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault
him. Tikam was severely injuwl and fell in a ditch adjacent to the road but even after he fell in it t!1e as--
sault was continued by the appellants. He died the same
day about five hours later. After assaulting Tikam, these
appellants decided to ransack his house and started towards it. On the way they were met by the other four accused an,! this brought their number to twelve. While they
were going to the house of Tikam they saw Puran and
decided to beat him. Puran was assaulted and the second
case arose out of the assault on him.
The learned magistrate who committed the accused
to stand their trial before the Court of Sessions framed a
common charge in respect of the two incidents but the
Sessions Judge amended the charge and divided it into
two charges namely one connected with the attack on
Tikam and the other connected with the attack on Puran.
He also separated the two trials on the two charges. As
stated already
he convicted the eight appellants in
respect of their assault on Tikam and the same appellants
with three others in respect of their assault on Puran.
1963 -
Kharkan and
oth<fl
v.
The State
of U.P.
Hidayatullah, f.
1963
Kharkan and
others
v.
The State
of UP.
Hidayatullah, /.
676
SUPREME COURT REPORTS
[1964]
The appeal in the second case was heard first and was
allowed by the High Court and the 11 appellants in that
appeal including the eight before us were ordered to be
acquitted.
.
It was contended before us by Mr. Tewatia that Mr.
Justice Sharma who delivered the judgment impugned
before us did not allow the appellants a chance to reply
to the arguments on behalf of the State and thus denied
them a fair hearing.
This fact was mentioned in the
petition for certificate in the High Court and has been
repeated in the petition for special leave. Mr. Justice
Sharma had proceeded to deliver judgment as soon as the
arguments were over and the judgment was delivered by
him on two consecutive days in the presence of the appellants and their counsel. If any such right had been denied
to the appellants they should have brought the matter
immediately to the notice of the learned Judge and he
would have rectified it.
It appears that the appellants
were hoping for an acquittal in view of the prior acquittal by the learned Judge in the companion case and realised too late that their appeal was not accepted. It is for
this reason that they do not appear to have raised this issue before the learned Judge when they asked him to certify the appeal and his Order does not show that they
made a grievance that the hearing was not fair. In .our
opinion this point cannot be considered because though it ·
was mentioned. in the petition for certificate it was apparently not pressed before Mr. Justice Sharma.
The next contention of the appellants is that the
prior acquittal in the second case operates as a bar to the
conviction in the present case and the High Court ought
to have given the appellants the benefit of the prior acquittal. Reliance jn this connection is placed upon a decision of the Privy Council in a case from Malaya State
reported in Sambasivam v. Public Prosecutor/Federation
of Malaya(') and particularly the following passage from
the judgment of Lord Mac Dermott :
"The effect of a verdict of acquittal pronounced by a
competent court on a lawful charge and after a lawful
trial is not completely stated by saying that the person
acquitted cannot be tried again for the same offence.
{ 1) [1950] A.C., 458 at p. 479.
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4 S.C.R.
SUPREME COURT REPORTS
677
To that is must be added that the verdict is binding
and conclusive in all subsequent proceedings between
the parties to the adjudication. The maxim "Res
judicata pro veritate accipitur" is no less
applicable
to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on
the charge of having ammunition in his possession,
the prosecution was bound to accept the correctness
of that verdict and was precluded from taking any
step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal
in so far as it might be relevant in his defence. That
it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedlv reduced
in some degree the weight of the case against him,
for at the first trial the facts proved in support of
one charge were clearly relevant to the other having
regard to the circumstances in which the ammunition
and revolver were found and the fact that they fitted
each other."
The above passage was cited with approval by this
Court in P,-itam Singh v. State of Punjab('). The two
cited cases were considered and distinguishe<I
bv
this
Court in Molzinder Singh v. State of Punjab(') and
P,-itam Singh' s case was again distinguished in Gurcharen Singh & anr. v. State of Punjab("). As pointed out
in Mohinder Singh v. State of Punjab('), the case of the
Privy Council involved a confession by an
accused
in
which he admited possession of a firearm and some ammunition which were both offences under the
relative
law of Malaya State. He was convicted on the basis of
'.hat statement on two counts but on appeal was acquitted
m respect of the count relating to the: possession of ammunition and a fresh trial was ordered in respect of the
count relating to the possession of the firearm. In the second trial the confession was again relied upon and he was
convicted. The Privy Council set aside the conviction
because the confession was incapable of being divided into two parts so as to make separate confessions about the
--(1)A.I.R. 1956 S.C. 415.
(2) Cr. A. No. 140 of 1961, decided on 31-7-63 (Unreported).
( 3) [1963] 3 S.C.R. 585.
1963
Kharkan and
others
v.
The State
of U.P.
Hidayatullah, /.
1963
KharJtan and
other1
v.
The State
of U.P.
Hiday•tullah, /.
678
SUPREME COURT REPORTS
[1964]
poss~s~1on of firearm and about the possession of ammumt1on.
Their Lordships held that the confession
which was indivisible could not be used at all, in view
of the acquittal recorded earlier on the other count. In
Pritam Singh's case(') the accused made a statement leading to the recovery of a firearm with which he was
alleged to have shot one of the victims. He was prosecuted for possession of the firearm and was acquitted but
the evidence of the possession of the firearm was used in
the murder charge. This was held to be not permissible. As explained in Mohinder Singh's case('), the acquittal in respect of the possession of firearm affected the
admissibility of the same evidence in connection with the
murder case, because the firearm could not at the same
time be possessed as well as not possessed by the accussed.
The acquittal under the Arms Act, being proper,
affected the evidence of possession in the murder case.
In Mohinder Singh's case(2) as well as in Gurcharan's(')
case Pritam's(') case was distinguished because in those
cases, the acquittal under the Arms Act was later than
the conviction on the substantive charge.
There is nothing in common between the present appeal and the two cases relied upon by
the appellants.
In this case there is no doubt a prior acquittal but on a
charge which was quite different from ·and independent
of the charge in the present case. The assault on Tikam
was over when the unlawful assembly formed its now
common object namely the assault on Puran. The acquittal proceeded mainly because Puran compounded the
offence under s. 323 and the High Court did not fed impressed by the evidence about the remaining charges,
The charges on which that acquittal took place had nothing whatever to do with the charges on which there is
conviction in the present appeal. A plea of autrefois
acquit which is statutorily recognised in India under s. 403
of the Code of Criminal Procedure arises when a person
is tried again for the same offence or on the same facts
for any other offence for which a different charge from
the one made against him might have been made un-
(1) A.LR. 1956 S. C. 415.
( 2 ) Cr. A. No. 140 of 1961, decided on 31-7-63 (unreported).
( 3) [1963] 3 S.C.R. 585.
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4 S.C.R.
SUPREME COURT REPORTS
679
der s. 236 or for which he might have been convicted under s. 237.
Section 236 provides for a situation where it is doubtful what offence has been committed. When a single act
or serie1; of acts is of such a nature that it is doubtful
which of several offences the facts which can be proved
will constitute, that section permits that the accused may
be charged with having committed all or any of such
offences and any number of such charges may be tried
at once or he may be charged in the alternative with
having committed some one of such offences.
Section
237 enables the Court to convict an accused charged with
one offence for a different offence where the facts show
that a different offence has been committed.
Neither of these provisions is applicable to the present
facts became the two offences were diet'. net and spaced slightly by time and place.
The trials were separate as the two incidents were viewed as distinct traniactions. Even if the two incidents could be viewed
as
connected so as to form parts of one transaction it is ob·
vious that the offences were distinct and required different charges. The assault on Tikam in fulfilment of the
common object of the unlawful assembly was over when
the unlawful assembly proceeded to the house of Tikam
to loot it. The new common object to beat Puran was
formed at a time when the common object in respect of
Tikam had been fully worked out and even if the two
incident< could be taken to be connected by unity of time
and place (which they were not), the offences were distinct and required separate charges. The learned Sessions
Judge was right in breaking up the single charge framed
by the magistrate and ordering separate trials. In this
view the prior acquittal cannot create a bar in respect of
the conviction herein reached.
It. was contended by Mr. Tewatia that the earlier
judgment involved almost the same evidence and the reasoning of the learned Judge in Puran's case destroys the
prosecution case in the present appeal.
He attempted
to _u~e the earlier judgment to establish this point. In our
?P1Il1on he. can?t be allowed to rely upon the reasoning
m the earlier Judgment proceeding as it did upon evidence which was separately recorded and separately
1963
Kharkan and
others
v.
The State
of U.P.
Hidayatullah, /.
1963
Kharkan and
others
v.
The State
of U.P.
Hidayatullah, f.
1963
August 29
• 680
SUPREME COURT REPORTS
[1964]
considered. The eye witnesses in this ca.se are five
in
number, while in the other case there were only two, but
that apart, the earlier judgment can only be relevant if it
fulfils the conditions laid down by the Indian Evidence
Act in ss. 40-43. The earlier judgment is no doubt admissible to show the parties and the decision but it is not
admissible for the purpose of relying upon the appreciation of evidence.
Since the bar under s. 403
Criminal
Procedure Code rlirl not operate, the earlier judgment is
not relevant for the interpretation .of evidence in the present
case.
Mr. Tewatia attempted to argue on the facts of this
case but we did not permit him to do so because this
Court, in the absence of special circumstances, does not
'review for the third time, evidence, which has been accepted in the High Court and the Court below. No such
circumstance has been pointed out to us to make us depart from the settled practice. The appeal therefore fails
and is dismissed.
T. DEV ADASAN
v.
Appeal dismissed.
THE UNION OF INDIA AND ANOTHER
(S. K. DAS ACTING C.J., K. SOBBA RAO, RAGHUBAR DAYAL,
N. RAJAGOPALA AYYANGAR AND J. R. MonHoLKAR, JJ.)
Equality-Employment under
State-Reservation
of
posts
for backward classes-Scheduled
Castes
and
Scheduled
Tribes-Unfilled vacancies of reserved posts for the year to be carried forward to subsequent
year-"Carryforward
rule"-Constitutional validity-Constitution of India, Arts. 14, 16(1 ), 16( 4 ), 46,
335.
On February 6, 1960, the Union Public Service Commission
issued a notification to the effect that a limited co:rripetitive examination for promotion to the regular· temporary establishment
of
Assistant Superintendents of the Central Secretariat Service would
be held in June, 1960. The notification further stated that a reservation of 12!% of the vacancies would be made for members
of the Scheduled Castes and 5°!'. for members of Scheduled Tribe.s.
The result of this examination was announced by the Union
l(' ........
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