STATE OF RAJASTHAN Vs BHAGWAN DAS AGRAWAL .
Bench: CHANDRAMAULI KR. PRASAD,M.Y. EQBAL
Case number: Crl.A. No.-002118-002118 / 2013
Diary number: 28012 / 2011
Advocates: PRAGATI NEEKHRA Vs
CORPORATE LAW GROUP
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2118 OF 2013 (Arising out of Special Leave Petition (Criminal) No.8402 of 2011)
State of Rajasthan …..Appellant
versus
Bhagwan Das Agrawal & Others ….Respondents
WITH
CRIMINAL APPEAL NO. 2119 OF 2013 (Arising out of Special Leave Petition (Criminal) No.2180 of 2012)
Girdhar & Others …..Appellants
versus
State of Rajasthan & Another
….Respondents
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. Aggrieved by the judgment and order dated 15th July,
2011 passed by the High Court of Madhya Pradesh, Principal Seat
at Jabalpur, whereby the petition filed by respondent No. 1 herein
(Bhagwan Das Agrawal) under Section 482 of the Code of Criminal
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Procedure, 1973 (for short, “Cr.P.C.”) seeking relief to hold that the
proceedings based on the subsequent and third FIR registered in
Dholpur (Rajasthan) as Crime No. 427/2010 under Section 5/9B,
9C of the Explosives Act, 1884, in view of the provisions of Section
186 of Cr.P.C., be discontinued, was allowed, the appellant-State
of Rajasthan has preferred the special leave petition being No.
8402 of 2011.
3. The facts and circumstances giving rise to the present
appeal are that in respect of alleged unauthorized and illegal
supply of explosives by M/s. Rajasthan Explosives and Chemicals
Ltd., Dholpur (for short, “RECL”), in which respondent No. 1 herein
Bhagwan Das Agrawal was Managing Director, to M/s. Ganesh
Explosives, Sagar during the period from 17.4.2010 to 29.6.2010
in contravention of the Explosives Act, a case at Police Station
Baheria, District Sagar was registered on 13.7.2010 as FIR/Crime
No. 161/2010. The police after due investigation filed charge-
sheet on 18.11.2010 for offences punishable under Sections 420,
467, 468, 471, 120-B, 201 and 34 of the Indian Penal Code (for
short, ‘IPC’) and Sections 9B, 9C of the Explosives Substances Act,
1884 and Sections 4 and 6 of the Explosive Substances Act, 1908
in the Court of concerned Judicial Magistrate, First Class, Sagar
against 11 persons including four persons from RECL viz.
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respondent No. 1 herein (Managing Director), K. Edward Kelly
(Director, Operations), Vinod Kumar Garg (Chief Manager,
Marketing) and Rakesh Kumar Agrawal (Manager, Marketing). The
array of accused persons, inter alia, included Devendra Singh
Thakur, Jai Kishan Ashwani, Rajendra Choubey, Gopal Shakyawar,
Shiv Charan Heda, Deepa Heda and Alakh Das Gupta. After filing
of the charge-sheet, the Magistrate took cognizance of the
offences. Similar charge-sheet under Sections 420, 467, 468, 471,
120-B, 201/34, IPC read with Sections 9B and 9C of the Explosives
Substances Act, 1884 and Sections 4, 5 and 6 of the Explosive
Substances Act, 1908 was filed after investigation into another FIR
lodged at Police Station Chanderi, District Ashok Nagar as FIR/
Crime No. 310/2010 on 26.8.2010 for the supply of explosives
during the period from 1.4.2010 to 30.6.2010 by RECL to another
firm M/s. Sangam Explosives, Halanpur in Chanderi, District Ashok
Nagar. This charge-sheet was filed in the Court of concerned
Judicial Magistrate, First Class, Chanderi against 8 persons
including four from RECL viz. respondent No. 1 herein (Managing
Director), K. Edward Kelly (Director, Operations), Vinod Kumar
Garg (Chief Manager, Marketing) and Rakesh Kumar Agrawal
(Manager, Marketing). The array of accused persons, inter alia,
included Rajendra Kumar Choubey, Anil Dhupad, Shiv Charan Heda
and Jai Kishan Ashwani. In this case too, the Magistrate took
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cognizance of the offences on 25.11.2010. Subsequently on
5.9.2010, in respect of supplies made by RECL during the period
from 1.4.2010 to 5.9.2010 to M/s. Ganesh Explosives, Sagar and to
M/s. Sangam Explosives, Chanderi, third FIR on the report
submitted by a Committee constituted to investigate into a news
published in the newspaper regarding disappearance of trucks
carrying explosives was lodged at Police Station Dholpur as
FIR/Crime No. 427/2010 and the police after due investigation filed
charge-sheet on 4.12.2010 against 16 persons for offences under
Section 420, 465, 467, 468, 471, 120-B, IPC read with Sections 5,
9B and 9C of the Explosives Substances Act, 1884 and Sections 5
and 6 of the Explosive Substances Act, 1908 in the Court of Chief
Judicial Magistrate, Dholpur, Rajasthan including the four office
bearers of RECL viz. respondent No. 1 herein (Managing Director),
K. Edward Kelly (Director, Operations), Vinod Kumar Garg (Chief
Manager, Marketing) and Rakesh Kumar Agrawal (Manager,
Marketing). The array of accused persons, inter alia included Shiv
Charan Heda, Rajendra Kumar Choubey, Jai Kishan, Ashwani (also
arrayed as acused in Sagar and Chanderi Courts) and Jagdish Soni,
Uday Lal Kabra, Lalit Gangwani, Girdhar Bhai, Arvind, Sunil, Damji
Bhai, Jitender Taank & Chimman Lal. The Magistrate took
congnizance of the offences on 4.12.2010. It is thus clear that the
charge-sheets were filed for the same offences against the officers
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(four in No.) of RECL as also the concerned persons of M/s. Ganesh
Explosives and M/s. Sangam Explosives with the only difference
that first FIR at Baheria was for supply made to M/s. Ganesh
Explosives, second FIR at Chanderi for supply made to M/s.
Sangam Explosives and the third FIR at Dholpur for supplies made
both to M/s. Ganesh Explosives and M/s. Sangam Explosives. The
final outcome was that for the same offences, cognizance came to
be taken by the courts at Sagar, Chanderi and Dholpur.
4. As per FIR/Crime No. 161 of 2010, 60 trucks of explosive
material outbound from RECL, Dholpur to M/s. Ganesh Explosives,
P.S. Baheria (M.P.) actually reached (i) M/s. Ajay Explosive,
Ahmadnagar (Maharashtra) (ii) M/s. B.M. Traders, Bywara (M.P.),
and (iii) M/s. B.M. Traders, Bhilwara (Rajasthan). FIR/Crime No.
310 of 2010 recorded that 103 trucks of explosive material
outbound from RECL, Dholpur to M/s. Sangam Explosives at P.S.
Chanderi (M.P.) actually reached (i) M/s. B.M. Traders, Bywara
(M.P.) and (ii) M/s. Ajay Traders, Bhilwara (Rajasthan). As per
FIR/Crime No. 427/2010, M/s. RECL, Dholpur sold explosive
material illegally to (i) M/s. Ganesh Explosives, Sagar (M.P.)
and (ii) M/s. Sangam Explosives, Ashok Nagar (M.P.) after the
expiry of their licences. The same never reached the destinations
and were diverted in their middle to Bhilwara (Raj.), Bywara (M.P.)
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etc. The explosives were also sold for terrorist activities which
stood revealed from FIR No.130/2010 P.S. Karol Bagh, New Delhi.
5. It was alleged in the petition filed by respondent No. 1
herein before the High Court that RECL was incorporated as a
private limited company in 1980; the factory of RECL at Dholpur,
Rajasthan got commissioned in 1981 & since then regular
production of explosives has been taking place there; and RECL
was making regular supplies amongst other dealers to M/s.
Ganesh Explosives as also to M/s. Sangam Explosives. It was
alleged that what was investigated and charge-sheeted by the
police of P.S. Baheria and P.S. Chanderi was put together and re-
investigated by the P.S. Dholpur. It was further alleged that when
cognizance of selfsame offence is taken by more than one court,
then in such circumstances Section 186 Cr.P.C. comes into play in
order to cap such situation and as the first court happened to be
the Court of Judicial Magistrate, First Class, Sagar, M.P. to have
initiated proceedings by taking congnizance of the offence upon
submission of charge-sheet by the police of P.S. Baheria in
FIR/Crime No. 161/2010, that court being the court in whose
appellate criminal jurisdiction the proceedings first commenced
was the court vested with the requisite jurisdiction under Section
186 Cr.P.C. to decide and make a declaration. It was alleged that
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the sum and substance of the allegations in the cases registered at
P.S. Baheria, P.S. Chanderi and P.S. Dholpur happen to be
identical, relating to the same occurrence/same transaction as also
the same offence i.e. illegal supply of explosives contrary to the
Explosives Rules by RECL to M/s. Ganesh Explosives and M/s.
Sangam Explosives. Accordingly, prayer was made to declare the
criminal proceedings in the Court of Chief Judicial Magistrate,
Dholpur being violative of Section 186(b) Cr.P.C. and to
discontinue the same.
6. The High Court by the impugned order dated 15.7.2011
while allowing the petition filed by respondent No. 1 herein
purportedly to give effect to the provision of Section 186(b) of
Cr.P.C. has observed as under:
“On perusal of third FIR and charge sheet submitted in that respect, it is apparently clear that in contravention of the provisions of the Explosives Act, Rajasthan Explosives and Chemicals Ltd. (RECL in short) Dholpur supplied explosives to M/s. Ganesh Agency, Sagar and M/s. Sangam Agency, Chanderi. On perusal of both earlier FIRs, it is revealed that there are 11 accused persons facing trial in Sagar (M.P.) and 8 accused persons are facing trial in Ashok Nagar (M.P.) Court. In the charge sheet submitted on the basis of subsequent and third FIR, accused persons and alleged offences are the same.
xxx xxx xxx
Admittedly, Rajasthan Court had taken cognizance of the offence, which was already a subject matter of the
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case already pending in the court of Sagar and also taken congnizance of the case which has already been pending in the court of Ashok Nagar (M.P.). The proceedings has first commenced in Sagar and in Chanderi respectively within the jurisdiction of the High Court of Madhya Pradesh, hence, subsequent proceedings initiated and registered in Dholpur Court stands discontinued and is liable to be discontinued.
Needless to write that this order will not be a bar to deal with the offences which are not the subject matter of the cases pending already in the courts of Madhya Pradesh.”
7. In the special leave petition, the appellant-State of
Rajasthan has contended that in connivance with respondent No. 1
herein 103 trucks of explosives were delivered to the Magazines of
M/s. Ajay Explosives which belongs to Shiv Charan Heda and 60
trucks of explosives to M/s. B.M. Traders which belongs to Deepa
Heda, both relatives of Jai Kishan Ashwani. It is alleged that the
magazines of M/s. Ganesh Explosives and M/s. Sangam Explosives
are not operational since many years and with the forged
documentation in the name of said firms the explosives were
purchased by M/s. Ajay Explosives and M/s. B.M. Traders and the
explosives were then sold to some unknown persons which are
serious threat to the security of the nation and one such example
is the registration of FIR in Crime No. 130/2010 P.S. Karol Bagh
under Sections 4 and 5 of the Explosive Substances Act in which
the accused Loknath Pant, a resident of Nepal was arrested and in
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whose custody 498 non-electronic detonator and 29.12 meter fuse
wire were recovered and in the packing of the cartons it was
revealed that the said explosives were from RECL, Dholpur. It is
contended that the High Court has erred in law and fact by
discontinuing the proceedings at Dholpur (Rajasthan) because
cause of action arose within the jurisdiction of court at Dholpur and
the territorial jurisdiction of a court regarding criminal offence is to
be decided on the basis of place of occurrence of the incident and
not on the basis of where complaint was filed. It is further alleged
in the special leave petition that even the Committee comprising
Sub-Divisional Magistrate, Deputy Superintendent of Police and
General Manager of District Industrial Centre in its report
submitted to the Superintendent of Police, Dholpur has stated that
the manufacturing licence of RECL was valid till 31.3.2010 and the
said company sold the explosive material to M/s. Ganesh
Explosives and M/s. Sangam Explosives from the month of April
2010 till June 2010 illegally when their licences too had expired
and RECL has sold the material in excess to the stipulated quantity
mentioned in the licence. It was found by the Committee that
there was no receipt/proof with RECL whether the trucks reached
the destinations or not and further RECL had violated the Explosive
Rules. It is alleged that the payments in lieu of sold explosive
materials were made through the Demand Drafts of ICICI Bank,
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Yes Bank, Axis Bank and Indusland Bank situated at Rajkot and the
payment was being made through the agents of Ganga Enterprises,
Sidhnath Enterprises, Govind Kripa Enterprises, Thakkar
Enterprises, Bhagwati Enterprises and Jyoti Enterprises, Rajkot.
These agents used to prepare the demand drafts in the name of
RECL and give to one Jagdish Soni (an accused in FIR No.427/10 at
Dholpur) who used to pass on the demand drafts to Shiv Charan
Heda (an accused in all the FIRs). These six agents, who had been
arrested on 22.12.2010 by Dholpur Police Station upon a
supplementary charge-sheet being filed and have not been arrayed
as accused in the proceedings pending in the courts at Sagar and
Chanderi (Madhya Pradesh), have been impleaded as respondent
Nos. 3 to 8 in the present proceedings. It is lastly alleged that the
respondent could not have filed the second petition because he
along with other office bearers of RECL has withdrawn the first
petition seeking quashing of proceedings in Crime No. 161/2010
registered at P.S. Baheria on the ground that they were already
facing trial in Crime No. 427/2010 registered by the Dholpur Police
on the same set of charges and no liberty was granted by the High
Court to file a fresh petition.
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8. The respondents impleaded in SLP(Crl.) No. 8402 of 2011,
have filed SLP (Crl.) No. 2180 of 2012 challenging the order dated
4.1.2012 passed by the High Court of Rajasthan, Bench at Jaipur
whereby the habeas corpus petition filed by them was disposed of
holding that the question of remand of the accused-petitioners in
FIR No. 427/2010, Kotwali Dholpur by the court in the State of
Rajasthan was in accordance with law or not and the detention of
the accused-petitioners is illegal, are the questions which are to be
adjudicated only after the issue of jurisdiction of courts in
Rajasthan pending before the Apex Court in SLP(Crl.) No. 8402 of
2011 is decided. The said SLP(Crl.) No. 2180 of 2012 was directed
to be put up along with SLP(Crl.) No. 8402 of 2011. Hence, both
the special leave petitions are before us.
9. While issuing notice in SLP(Crl.) No.. 8402 of 2011, this
Court on 25.11.2011 passed the following order:
“Mr. U.U. Lalit, learned senior counsel appearing for respondent no.1 on caveat stated that though the High Court has quashed the proceedings at the Dholpur Court in Rajasthan, the respondents have no objection if the proceedings are continued at Dholpur, but in that case the proceedings arising from the same set of facts in the two Courts in Madhra Pradesh, i.e. at Sagar and Chanderi may have to be quashed.
Issue notice to the non-appearing respondent on the limited question whether the proceedings should
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continue at Dholpur or at the two places (Sagar and Chanderi) in Madhya Pradesh.”
10. The short question that falls for consideration in the instant
case is as to whether the proceedings should continue at Dholpur
or at the two places (Sagar and Chanderi) in Madhya Pradesh.
11. Section 186, Cr.P.C., which deals with the power of the
High Court to decide, in case of doubt, the district where inquiry
or trial shall take place, is extracted hereinbelow:-
“186. High Court to decide, in case of doubt, district where inquiry or trial shall take place.- Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided --
(a) if the Courts are subordinate to the same High Court, by that High Court;
(b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced,
and thereupon all other proceedings in respect of that offence shall be discontinued.”
12. From bare reading of the aforesaid provision it is
manifest that the main object and intention of the Legislature in
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enacting the provision is to prevent the accused persons from
being unnecessarily harassed for the same offences alleged to
have been committed within the territorial jurisdiction of more
than one courts. In order to avoid unnecessary harassment of
the accused to appear and face trial in more than one courts,
necessary direction is to be issued to discontinue the subsequent
proceedings in other courts. The provision is based on the
principle of convenience and expediency. However, the sine qua
non for the application of this provision is that the cases
instituted in different courts are in respect of the same offence
arising out of the same occurrence and that the same transaction
and that the parties are the same. In other words, the persons
implicated as an accused in different cases must be the same. If
these conditions are satisfied then subsequent proceeding has to
be discontinued.
13. Chapter XXIV of the Code of Criminal Procedure deals
with the provisions with regard to the enquiries and trials.
Section 300 debars the Court from proceeding with the trial in
respect of the same offence for which the accused has already
been tried and convicted or acquitted. However, a person
convicted for any offence may be afterwards tried if such act
constituted a different offence from that of which he was
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convicted. This Court elaborately dealt with the provisions
contained in Section 300 Cr.P.C. in the case of State of Bihar v.
Murad Ali Khan, (1988) 4 SCC page 655. Some of the
paragraphs are worth to be quoted hereinafter.
“26. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re-prosecution after acquittal, a protection against re-prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by “same offence”. The principle in American law is stated thus:
“The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee.
Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if ‘each provision requires proof of an additional fact which the other does not’ (Blockburger v. United States). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately.
27. The expression “the same offence”, “substantially the same offence” “in effect the same offence” or “practically the same”, have not done much to lessen the difficulty in applying the
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tests to identify the legal common denominators of “same offence”. Friedland in Double Jeopardy (Oxford 1969) says at p. 108: “The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are ‘substantially the same’ may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible....”
28. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: (SCR p. 827)
“The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.”
14. In the instant case, as noticed above, the nature and
manner of offences committed by the accused persons are not
identical but are different, for example, in respect of FIR Crime
No.130 of 2010 the accused persons in connivance with
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respondent No.1 delivered 103 trucks of explosives to the
Magazines of M/s. Ajay Explosives which belonged to Shiv Charan
Heda and 60 trucks of explosives to M/s. B.M. Traders which
belonged to Deepa Heda. It was alleged that the Magazines of
M/s. Ganesh Explosives and M/s. Sangam Explosives were not
operational since many years and with the forged documentation
in the name of the said firms the explosives were purchased by
M/s. Ajay Explosives and M/s. B.M. Traders and subsequently
those explosives were sold to some unknown persons. In respect
of those FIRs, one accused, a resident of Nepal, was arrested and
from whose custody 498 non electronic detonators were
recovered. In respect of another FIR, during investigation, it has
come on the record that those explosives were sold for terrorist
activities.
15. Offence means any act or omission made punishable by
law. The fountain head of all the three cases may be at Dholpur
from where truck loaded with explosives moved to different
destinations but from that it cannot be said that the acts and
omissions which constitute the offence are the same. Same
offence, in our opinion, would mean that acts and omissions
which constitute the offence are one and the same. Except the
allegation that the explosives were loaded at Dholpur, the mode
and manner in which the offence was committed at different
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places are not the same. As such, in our opinion, the provision of
Section 186 of the Code is not attracted in the facts of the
present case. Hence, the High court erred in passing the
impugned order.
16. In the facts and circumstances of the case, we are of the
considered opinion that the impugned order passed by the High
Court is to be set aside. Consequently, the appeal preferred by
the State of Rajasthan is allowed and the appeal preferred by the
accused stands disposed of.
….…………………………….J. (Chandramauli Kr. Prasad)
…………………………….J. (M.Y. Eqbal)
New Delhi, December 17, 2013.
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