BHAGAT RAM v. STATE OF RAJASIBAN

. Ram Swaro?p, according to the prosecution case, came N1ranian Dass m the first week of October 1962 and · showed letter P. 2 which had been sent by Bhagat Ram to Ram Swaroop In the course of that letter it was stated "Kindly from Alwar. send that thing to Alwar. This is very important and please do not be careless and slack in the matter." Ram Swaroop Niranjan Dass that the words "that thing" in the letter referred to Rs. 2,000 and demanded that amount from Niranjan Dass, so that it could be passed on to Bhagat Ram. Niranjan Dass expressed his inability to accede to this demand. The Jetter was, however, retained by Niranjan Dass. A few days thereafter Ram Swaroop again came to Niranjan Dass and showed him telegram P.3A dated October 19, 1962. The telegram had been addressed by Bhagat Ram to Ram Swaroop and it was stated therein Ram Swaroop should ask Niranjan Dass to see Bhagat Ram and that otherwise, warrants of :UTest would be issued against him. This telegram too was kept by Niranjan Dass, with himself. B c D On December 26, 1962, it is stated, Niranjan Dass came know that warrants for his arrest had been received by the Moga police in the above mentioned case registered at Ganganagar. Niranjan Dass then consulted a lawyer aud sent complaint dated E December 26, 1962 to the Inspector General of Police, Special Police Establishment. A case was thereafter registered on the basis of the above complaint by DSP Umaid Singh of Anti· Corruption Department. After necessary investigation, Bhagat Ram and Ram Swaroop were sent up for trial. F Jn his statement under section 342 of the Code of Criminal Procedure, Ram Swaroop admitted that he knew Bhagat Ram and that he had gone to him on July 29, 1962 with Manohar Lal and Nlranjan Dass at Hindumalkot. Ram Swaroop denied Bhagat Ram had made any demand through him for illegal grati fication. According to Ram Swaroop, Bhagat Ram had asked G him to realise the embezzled amount from Niranjan Dass. The other allegations made against him were denied by Ram Swaroop. he. however, admitted having received letter P. 2 and telegram p. 3A from Bhagat Ram and having handed over those docu ments to Niranjan Dass. Ram Swaroop added that he had asked Niranjan Dass to pay the embezzled amount which was with him. B Bhagat Ram admitted that he had been entrusted with investigation of the case against Ramesh and that he had called Niranjan Dass to Ganganagar in that connection. Bhagat Ram 308 SUPRBMB COURT RBPORTS [1972] 3 s.c.R. denied having maltreated Niranjan Dass or having kept him A under unlawful detention. Bhagat Ram admitted that Niranjan Dass and Ram Swaroop had met him on July 29, 1962 at Hindu through Ram malkot but he denied having made any demand Swaroop fqr the payment of Rs. 2,000 as bribe. It was admitted by Bhagat Ram that he. had gone to Moga but the demand for any illegal gratification from Niranjan Dass ·at Moga was denied B by Bhagat Ram. Bhagat Ram admitted having sent letter P. 2 and telegram P. 3A to Ram Swaroop. As regards the words "that thing", Bhagat Ram stated that they referred to the embezzl· ed amount which had been retained by Niranjan Dass. The trial court, as stated earlier, acquitted both the accused, C' while the High Court maintained the acquittal of Ram Swaroop. As regards Bhagat Ram, there was a difference between the two judges. On the matter being referred to the third judge, Bhagat Ram was convicted and sentenced as above. Arguments have been addressed in the two appeals by Mr. Melita on. behalf of the State of Rajasthan, Mr. Chari on behalf D· of Bhagat Ram and Mr. Gupta on behalf of Ram Swaroop. After hearing the learned counsel, we are of the opinion that the appeal filed by the State of Rajasthan merits dismissal, while that filed by Bhagat Ram should be allowed. It would appear from the- resume of facts given above both Bhagat Ram and Ram Swaroop were acquitted by the spe· E. cial judge. On appeal filed by the State of Rajasthan against the acquittal of the two accused, Tyagi and Lodha, JJ. maintained the order relating to the acquittal of Ram Swaroop. As regards Bhagat Ram, though there was a difference between the two judges regarding the correctness of his acquittal for offences under sec tion S(l)(a) of Preve.ntion of Corruption Act and section 161 F of Indian Penal Code, they concurred with regard to the acquittal of Bhagat Ram in respect of the charges under sections 120B, 218, 347 and 389 IPC. The State appeal against the acquittal of Bhagat Ram was dismissed to that extent. The order which was made by. the learned judges of the Division Bench reads as under: G "BY THE COURT The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop Is dis· missed. The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections is also 347 218, 389 and 120B Indian Penal Code In view of the difference of opinion about disniissed. the acquittal of Bhagat Ram under section 161 Indian H BHAGAT RAM v. RAJASTHAN (Khanna, J.) 309 A Penal CQde and section 5 (1 )(a) of the Prevention of Corruption Act, the matter may be laid before Hon'ble the Chief Justice for referring it to the third judge." D B judges. Had E order had been made by the Division Bench upholding In view of the fact that the State appeal against the acquittal of Bhagat Ram for offences under sections 120B, 218, 347 and 389 IPC had been dismissed by the Division Bench, it was, our opinion, not permissible for the third judge to reopen matter and convict Bhagat Ram for offence.~ under sections 347, 389 and 1208 IPC. The matter had been referred under section 429 of the Code of Criminal Procedure to J agat Narayan, J. C because· there was a difference of opinion between Tyagi, J. and Lodha, J. regarding the correctness of the acquittai of . Bhagat Ram for offences under section 161 IPC and section S(l)(a) of Jagat Narayan, J. could go only Prevention of Corruption Act. into this aspect of the matter and arrive at his conclusion. The present was not a case wherein the entire matter relating to the acquittal or conviction of Bhagat Ram had been left open because of a difference of opinion between the two been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of. the order of acquittal made by the trial judge in respect of Bhagat Ram. On the contrary, as mentioned earlier, an express acquittal of Bhagat Ram for offences under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed. The above decision of the Division Bench was binding upon Jagat Narayan, J. and he was in error in convicting Bha~at Ram for offences under sections 120B, 218 and 347 IPC It was, in our opinion, despite the order of the Division Bench. not within the competence of the learned judge to matter and pass the above order of conviction in the face of the earlier order of the Division Bench whereby the order of acquittal of Bhagat Ram made by the trial judge in respect of the said three charge1 had been affirmed. The order of the Division Bench c; unless set aside in appeal to this Court, was binding and conclu· slve in all subsequent proceedings between the parties. The principle of .res fudlcata is also applicable to criminal proceed· 1ngs and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his H acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in section 403 of Code of Criminal Procedm·e is based upon the above wholesome principle. reopen f . 3 J 0 SUPREME COURT REPORTS [1972] 3 S.C.R . In the case of Sambasivam v. Public Prosecutor, Federal of A Malaya('), Lord MacDermott observed : "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. To that it 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 posses- sion, the prosecution was bound to accept the correct· ness of that verdict and was precluded from taking any steps to challenge it at the second trial." B C The above observations were quoted with approval by this Court 0 in the case of Pritam Singh v. State of Punjab('). We are. there· fore, of the opinion that the judgment of Jagat Narayan, J. in so far as he has convicted Bhagat Ram for offences under sections 120B, 218 and 347 IPC cannot be sustained. The matter can also be looked at from another angle. The charge under section 120B IPC related to conspiracy between E Bhagat Ram and Ram Swaroop for extorting Rs. 2,000 as illegal gratification from Niranjan Dass. When Ram Swaroop was acquitted of the charge under section 120B IPC, the basis of the charge against Bhagat Ram for conspiracy between him and Ram It is not the case of the prosecution that Swaroop disappeared. Bhagat Ram had conspired with another person and even though. F the identity of the other person has not been established, Bhagat Ram would still be guilty for the olfcnce under section 120B IPC. On the contrary, the case of .the prosecution was Bhagat Ram had conspired with Ram Swaroop to extort Rs. 2,000 as illegal gratification from Niranjan Dass. Once Ram Swaroop was acquitted in respect of. the charge relating to conspiracy, the G charge against Bhagat Ram for conspiracy must necessarily fall t9 the ground. So far as the State appeal against the acquittal of Ram Swa· roop is concerned, we find that there are concurrent findings of the trial court and the High Court that the evidence on record had failed to prove that he was guilty of offences under sections 120B and 165A IPC. Nothing hai; been brought to our notice at the rn r10..-oi A C:. 458. (2) [1956] S.C.R. 41S, BHAGAT RAM v. RAJASTHAN (Kha11na, J.) 311 A hearing of the appeal as may justify interference with those con current findings by a fresh appraisement of that evidence. We are, therefore, of the view that the State appeal against acquittal of Ram Swaroop is liable to be dismissed. illegal gratification As regards the conviction of Bhagat Ram for the offence B under section 161 IPC, we find that it is not the prosecution case that. Bhagat Ram had made any demand directly to Niranjan Dass for payment of illegal gratification. On the contrary, the High Court found that Bhagat Ram had not demanded bribe directly from Niranjan Dass. The case set up by the prosecution is that Bhagat Ram attempted to obtain Niranjan Dass through the instrumentality of Ram Swaroop. In C view of the acquittal of Ram Swaroop, it is not possible to main tain the conviction of Bhagat Ram. The acquittal of Ram Swa roop would necessarily lead to the conclusion that the prosecu tion allegation about Ram Swaroop having made a demand of illegal gratification from Niranjan Dass for Bhagat Ram has not 'The case,. in the circumstances, against Bhagat been proved. D Ram .for asking for bribe through Ram Swaroop must conse It would indeed be incongruous and inconsistent to quently fail. acquit Ram Swaroop, for offences under sections 165A and 120B IPC and, at the same time, to convict Bhagat Ram for the offence under section 161 IPC for asking for bribe from Niranjan Dass through the instrumentality of Ram Swaroop. E We, therefore, accept the appeal of Bhagat :Ram and set aside the State of his conviction and acquit him. The appeal of Rajasthan against the acquittal of Ram Swaroop is dismissed. V.P.S. Appeal allowed.