Supreme Court of India
P. Manikandan vs Central Bureau Of Investigation on 19 December, 2024
Author: Sanjay Karol
Bench: Sanjay Karol, C.T. Ravikumar
2024 INSC 1007 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. _______ OF 2024
(Arising out of SLP(Crl.) No. 8700 of 2023)
P. MANIKANDAN …APPELLANT(S)
Versus
CENTRAL BUREAU OF
INVESTIGATION AND ORS …RESPONDENT(S)
JUDGMENT
SANJAY KAROL J.
Leave Granted.
2. The present appeal arises from the judgment and order dated 4th July, 2023
passed by the High Court of Judicature at Madras in CRL.O. P. No.5826 of 2023
and CRL.M.P.Nos.3640 and 3642 of 2023, whereby the High Court dismissed
Signature Not Verified
the petition for quashing filed by the appellant under Section 482 of the Criminal
Digitally signed by Dr.
Naveen Rawal
Date: 2024.12.19
13:41:20 IST
Reason:
1 | SLP (Crl) No. 8700 of 2023
Procedure Code, 19731 against the chargesheet/final report and proceedings
pending before the Special Court for the trial of cases under the Protection of
Children from Sexual Offences Act, 20122, Tiruvannamalai, Tamil Nadu in
Special S.C.No.42 of 2021.
3. The crux of the present appeal is that on 19th June, 2013, a case was
registered bearing Crime No.139 of 2013 under Section 364A and 302 of the
Indian Penal Code, 18603 against the accused namely, P. Manikandan4, wherein
it was alleged that the appellant kidnapped the 4-year-old child from Gandhi
International Matriculation School, Mangalam by using his motorcycle and after
murdering her, threw away the dead body in Well.
4. The background facts in which the present appeal has arisen are:
4.1 The father of the deceased, namely Paramasivam5, and the appellant
were known to each other. The appellant borrowed a sum of Rs. 5,00,000/-
from the complainant due to losses incurred in his brick making business
and he failed to return the money despite repeated demands from the
complainant for repayment. The Complainant and his wife, Usha, had a
daughter6, who was 4 years old and studied at Gandhi International
Matriculation School, Mangalam7. The deceased child was regularly taken
1
hereinafter referred to as “Cr.P.C.”
2
hereinafter referred to as the “POCSO Act”,
3
hereinafter referred to as ‘IPC’
4
hereinafter referred to as the “Appellant”
5
hereinafter referred to as “Complainant”
6
hereinafter referred to as the “Deceased child”
7
hereinafter referred to as the “School”
2 | SLP (Crl) No. 8700 of 2023
to school by one Chandrasekar, the van driver and in his absence, the
appellant sometimes would take the deceased child to and from the school.
On 13th June 2013, at about 01.30PM the deceased child was found to be
missing from school. Allegedly, the father of the deceased informed the
appellant about the same and requested his assistance in confirming her
whereabouts. It was alleged that the appellant arrived at the location after a
delay of two hours, pretending to be involved in the search for the deceased
child, but being unable to locate her, subsequently, a complaint was filed at
the Mangalam Police Station.
4.2 About a week later, the villagers informed the complainant about a body
floating in a well at Aarpakkam and the same was later identified as that of
his daughter. On 19th June 2013, the Complainant filed a complaint, which
was registered as Crime No.139 of 2013, initially recorded under the head
of ‘Child Missing’; the case was later reclassified to include charges of
kidnapping for ransom and murder. It was alleged that on 13th June 2013,
the appellant kidnapped the deceased child from School, using his Hero
Honda Splendor Motorcycle Plus bearing registration no. TN25-L-2391 and
after murdering her, he disposed of her body in the well.
4.3 Thereafter, after completion of the investigation, the Mangalam Police
Station, filed chargesheet on 28th November 2013 before the Learned
Judicial Magistrate Court–II, Thiruvannamalai, who took cognizance
3 | SLP (Crl) No. 8700 of 2023
thereof and assigned PRC No.51 of 2013, and committed the case to the
Learned Fast Track Mahila Court, Thiruvannamalai8, where SC No. 102 of
2015 was assigned.
4.4 In order to prove the guilt of the accused, the prosecution examined
witnesses PWs 1 to 20 and exhibited P-1 to P-16 and M.O. 1 to M.O. 8.
Upon consideration of evidence, the Trial Court, vide judgment dated 31st
January 2018, on the basis of the last seen theory held that the appellant was
guilty for the offence punishable under Section 364A and 302 of the IPC.
Sentence awarded to the appellant was life imprisonment and fine of Rs.
5,000/- for the offence under Section 304A IPC and death penalty for the
offence under Section 302 IPC subject to the confirmation by the High Court
of Madras. As required by the statute, the judgment was referred to a
Division Bench of the High Court for confirmation of death sentence in
Referred Trial No.2 of 2018. Being aggrieved by the conviction and
sentence imposed upon him, the appellant preferred Criminal Appeal
No.102 of 2018 before the High Court.
4.5 On 24th July 2018, the High Court, after considering the evidence on
record, set aside the order of the Trial Court and came to the conclusion that
the prosecution had failed to establish the guilt of the appellant beyond all
reasonable doubts; therefore, held that the appellant is entitled to the
8
hereinafter referred to as the “Trial Court”
4 | SLP (Crl) No. 8700 of 2023
acquittal of all charges. The High Court further directed the transfer of all
relevant documents to the Central Bureau of Investigation9, Chennai, with
the direction to conduct a de-novo investigation and submit a final report
within three months. The High Court further directed that if the investigation
reveals or confirms the involvement of the appellant, the prosecution may
proceed against the appellant in accordance with law.
5. Subsequently, CBI re-registered the case on 18th January 2019, bearing FIR
No.R.C.1/(S) of 2019 and after completion of the investigation, CBI filed
chargesheet dated 25th August 2020 bearing Chargesheet No.2 of 2020 under
Section 173 of Cr.P.C. against the appellant for the commission of offence under
Sections 364 and 302 of IPC in Special S.C No.42 of 2021 before Special Court
for the trial of cases under POCSO Act, Tiruvannamalai, Tamil Nadu, by
confirming the role of the appellant with regard to the commission of offence of
kidnapping of the deceased child.
6. In the year 2023, appellant preferred Crl.O.P.No.5826 before the High
Court of Judicature at Madras under Section 482 of the Cr.P.C seeking quashing
of the chargesheet/final report No.2 of 2020 and the pending proceeding of
Special SC No.42 of 2021 on the ground that once the appellant was tried by the
Trial Court for an offence and the appellate court acquitted the appellant of all
9
hereinafter referred to as “CBI”.
5 | SLP (Crl) No. 8700 of 2023
charges, the Court cannot order such acquitted person to be tried again for the
same offence on the same set of facts, after re-investigation.
7. Resultantly, the High Court vide judgment and order dated 4th July, 2023
while dismissing the CRL.O.P.No.5826 of 2023, directed the Trial Court to
complete the trial and pass judgment, within a period of 30 days from the date of
this order, without being influenced by any of the observations either made in the
order under Section 482 Cr.P.C or in the order passed by the Division Bench in
the Criminal Appeal
8. The High Court vide the impugned order, after considering the contentions
of the parties, gave the following findings while dismissing the Criminal Petition:
(i) While considering the issue “whether the facts of the case attracts
Section 300(i) of Cr.P.C?”, the High Court concluded that the Division
Bench rightly directed the CBI to conduct a de novo investigation. The said
order was not challenged by the accused; he submitted himself to the trial.
Having realized that the trial is proceeding against him, the petitioner
(appellant herein) has filed the present petition on the baseless claim that
Section 300 Cr.P.C. offers him protection, which, in fact, it does not.
(ii) While relying on the decision of this Court in Satyajit Banerjee and
Ors v. State of West of Bengal and Ors.10, Ajay Kumar Ghoshal and Ors
v. State of Bihar and Anr.11, following Zahira Habibulla H. Sheikh v.
10
(2015) 1 SCC 115
11
(2017) 12 SCC 699
6 | SLP (Crl) No. 8700 of 2023
State of Gujarat12(well known as the ‘Best Bakery’ case), on the point that
the Appellate court has power under Section 386(b)(i) of Cr.P.C. to order
retrial/de novo trial if, it is satisfied that the omission or irregularities has
caused miscarriage of justice.
(iii) Section 300 (i) of Cr.P.C., qualified the protection only in case the
order of conviction or acquittal remains in force. Bare perusal of the Sub
Sections (2) to (5) of Section 300 of Cr.P.C., makes it clear that explanation
of “autrefois acquit”, is not absolute but subject to conditions and held that
the acquittal in previous trial with a direction for re-investigation is not an
acquittal in force.
9. This order rejecting the appellant’s quashing petition is assailed before this
Court. Although questioned here is this order, challenge has also been laid to the
direction to conduct de novo investigation to CBI. Learned counsel appearing on
behalf of the appellant submitted that:
(i) Article 20 (2) of the Constitution of India explicitly stipulates that
no person shall be prosecuted or punished for the same offence more than
once, as the appellant has previously been acquitted on the same facts and
for the same offence and, therefore, subsequent prosecution in
impermissible;
12
(2004) 4 SCC 158
7 | SLP (Crl) No. 8700 of 2023
(ii) This protection against double jeopardy is further reinforced by the
statutory provisions, including Section 300 of Cr.P.C., Section 40 of the
Evidence Act, 1872, Section 71 of IPC and Section 26 of the General
Clauses Act, 1897.
(iii) Power under Section 386(b) of the Cr.P.C. does not include the
power to direct de novo investigation in case of an appeal against conviction.
(iv) It was further submitted that an acquittal may be characterized as
‘honorable’ when, after a thorough examination of the prosecution’s
evidence, the court determines that the prosecution has entirely failed to
substantiate the charges brought against the accused. In such circumstances,
it may be inferred that the accused has been acquitted in a manner that
implies full exoneration from blame.
(v) In furtherance of the submissions, the learned counsel for appellant
relied upon various decisions of this court viz. T.P. Gopalkrishnan v. State
of Kerala13, Subrata Choudhury alias Santosh Choudhury and Ors. v.
State of Assam & Anr.14, Amandeep Singh Saran v. State of
Chhattisgarh15, Deputy Inspector General of Police V. S. Samuthiram16,
Union Territory, Chandigarh Administration & Ors. v. Pradeep Kumar
& Anr., Ajay Kumar Ghoshal & Ors. v. State of Bihar & Anr.17.
13
(2022)14 SCC 323
14
2024 SCC Online SC 3126
15
(2024) 6 SCC 541
16
(2013) 1 SCC 598
17
(2017) 12 SCC 699
8 | SLP (Crl) No. 8700 of 2023
10. The stand of the respondent/CBI as reflected from record is as under:
(i) It was stated that the acquittal or discharge of the appellant was not
based on the merits of the case. The acquittal order passed by the High
Court does not have the effect of the final acquittal, as the appellate
proceedings did not result in a determination by affirming the conviction
or an acquittal on merits. The proceedings constitute a continuation of the
trial against the appellant. Accordingly, the principle of double jeopardy
under Article 20 (2) of the Constitution of India and Section 300 of
Cr.P.C. does not apply.
(ii) The circumstances of this case do not meet the condition provided
under Section 300 of Cr.P.C., in order to comply with the provision under
Section 300 of Cr.P.C, the previous trial must pertain to the same offence
and the same charges, and the resulting order of conviction or acquittal
must be final and in force. The protection against double jeopardy, known
as “autrefois acquit,” provided under Section 300, is not absolute and is
subject to the conditions specified in Sub-sections (2) to (5) of Section
300 CrPC.
(iii) Given the specific circumstances of the case, the accused can be
retried for the same offence, as the previous trial has been annulled.
Consequently, there is no subsisting acquittal or conviction in effect.
9 | SLP (Crl) No. 8700 of 2023
(iv) Further it was stated that the High Court has the power under Section
368 of Cr.P.C to order a new trial on the same offence or amend the
charges and the Appellate Court has the power under Section 386 of
Cr.P.C, in pursuance of the decisions laid down in Ajay Kumar Ghoshal
& Ors. v. State of Bihar & Anr.18, Ukha Kolhe v. State of
Maharashtra19, Mohd. Hussain v. State (Govt. of NCT of Delhi)20.
Additionally, it was stated that the High Court has the power to order re-
investigation while relying on the judgment of this court in Devendra
Nath Singh v. State of Bihar21.
(v) That the appellant did not avail the remedy of approaching the High
Court or this Court upon receiving summons from the Chief Judicial
Magistrate, Chengalpattu, or during the initial stages of the trial
proceedings. It was further stated that the appellant approached the High
Court only subsequent to the examination of 34 prosecution witnesses and
after the completion of the chief examination of the concerned
Investigating Officer, at that stage the appellant was fully aware that
sufficient evidence had been adduced to sustain a conviction against him.
11. We have heard the learned counsel for the parties. The issues which arise
for the consideration before this court are:
18
(2017) 12 SCC 699
19
(1964) 1 SCR 926
20
(2012) 9 SCC 408
21
(2023) 1 SCC 4810 | SLP (Crl) No. 8700 of 2023
(i) Whether the High Court was justified in directing re-investigation
and retrial of the same offence on the same set of facts, after acquitting the
accused by giving him the benefit of doubt? In other words, when
considering an appeal against conviction under Section 386(b)(i) of Cr.P.C.,
is the High Court empowered to direct re-investigation, if yes, then could
such a direction be given while acquitting the accused, in the very same
order;
(ii) Whether, in the attending fact and circumstances, the de novo
investigation violated the principle of double jeopardy and the appellant’s
right under Article 20(ii) of the Constitution of India and Section 300 of the
Cr.P.C.
12. In the present case, the High Court acquitted the appellant and directed to
transfer the documents and relevant material to conduct the de novo investigation
before CBI on the same facts for the same offences and to proceed against the
appellant in accordance with law, by exercising the power under Section 386 of
Cr.P.C.
13. The power of the Appellate Court as described under Section 386 of Cr.P.C
is extracted below:
“386. Power of the Appellate Court- After perusing such record and
hearing the appellant or his pleader, if he appears, and the Public
Prosecutor, if he appears, and in case of an appeal under section 377 or
section 378, the accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering, dismiss the
appeal, or may –11 | SLP (Crl) No. 8700 of 2023
a. in an appeal from an order of acquittal, reverse such order and direct
that further inquiry be made, or that the accused be re-tried or
committed for trial, as the case may be, or find him guilty and pass
sentence on him according to law;
b. in an appeal from a conviction
(i) reverse the finding and sentence and acquit or discharge the
accused, or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed
for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii)with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, but not so as
to enhance the same;
c. in an appeal for enhancement of sentence
(i) reverse the finding and sentence and acquit or discharge the
accused or order him to be re-tried by a Court competent to try
the offence, or
(ii) alter the finding maintaining the sentence, or
(iii)with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, so as to
enhance or reduce the same;
d. in an appeal from any other order, alter or reverse such order;
e. make any amendment or any consequential or incidental order that may
be just or proper;
Provided that the sentence shall not be enhanced unless the accused
has had an opportunity of showing cause against such enhancement;
Provided further that the Appellate Court shall not inflict greater
punishment for the offence which in its opinion the accused has
committed, than might have been inflicted for that offence by the Court
passing the order or sentence under appeal.”
(Emphasis supplied)
14. Section 386 (b) of Cr.P.C. enumerates power of the Appellate Court which
inter alia includes the power to order the appellant to be retried by the competent
authority or committed for trial in case of appeal from a conviction. This court in
several decisions deals with the power of Appellate Court to direct a re-trial.
12 | SLP (Crl) No. 8700 of 2023
15. The Constitution Bench, while dealing with such an issue, that when such
power should be exercised by the Appellate Court in Ukha Kolhe v. State of
Maharashtra22, observed that:
“11. An order for retrial of a criminal case is made in exceptional
cases, and not unless the appellate court is satisfied that the Court trying
the proceeding had no jurisdiction to try it or that the trial was vitiated
by serious illegalities or irregularities or on account of misconception
of the nature of the proceedings and on that account in substance there
had been no real trial or that the Prosecutor or an accused was, for
reasons over which he had no control, prevented from leading or
tendering evidence material to the charge, and in the interests of justice
the appellate court deems it appropriate, having regard to the
circumstances of the case, that the accused should be put on his trial
again. An order of re-trial wipes out from the record the earlier
proceeding, and exposes the person accused to another trial which
affords the prosecutor an opportunity to rectify the infirmities disclosed
in the earlier trial, and will not ordinarily be countenanced when it is
made merely to enable the prosecutor to lead evidence which he could
but has not cared to lead either on account of insufficient appreciation
of the nature of the case or for other reasons. ”(Emphasis supplied)
16. In the “Best Bakery Case”, wherein the Trial Court directed the acquittal
of the accused person in a case of mass killings, the same was upheld by the High
Court of Gujarat while dismissing the criminal appeal, this Court, after
considering the facts and circumstances of the case, directed the de novo trial of
the accused person by observing that:
“73. … We are satisfied that it is a fit and proper case, in the
background of the nature of additional evidence sought to be adduced
and the perfunctory manner of trial conducted on the basis of tainted
investigation a retrial is a must and essentially called for in order to
save and preserve the justice-delivery system unsullied and unscathed
by vested interests. We should not be understood to have held that
whenever additional evidence is accepted, retrial is a necessary
corollary. The case on hand is without parallel and comparison to any
of the cases where even such grievances were sought to be made. It
22
AIR 1963 SC 153113 | SLP (Crl) No. 8700 of 2023
stands on its own as an exemplary one, special of its kind, necessary
to prevent its recurrence. It is normally for the appellate court to
decide whether the adjudication itself by taking into account the
additional evidence would be proper or it would be appropriate to
direct a fresh trial, though, on the facts of this case, the direction for
retrial becomes inevitable.”
17. A Three Judge Bench of this Court in Mohd. Hussain v. State (Govt. of
NCT of Delhi)23, held that:
41. The appellate court hearing a criminal appeal from a judgment of
conviction has power to order the retrial of the accused under Section
386 of the Code. That is clear from the bare language of Section 386(b).
Though such power exists, it should not be exercised in a routine
manner. A de novo trial or retrial of the accused should be ordered by
the appellate court in exceptional and rare cases and only when in the
opinion of the appellate court such course becomes indispensable to
avert failure of justice. Surely this power cannot be used to allow the
prosecution to improve upon its case or fill up the lacuna. A retrial is
not the second trial; it is continuation of the same trial and same
prosecution. The guiding factor for retrial must always be demand of
justice. Obviously, the exercise of power of retrial under Section 386(b)
of the Code, will depend on the facts and circumstances of each case
for which no straitjacket formula can be formulated but the appeal court
must closely keep in view that while protecting the right of an accused
to fair trial and due process, the people who seek protection of law do
not lose hope in legal system and the interests of the society are not
altogether overlooked.
(Emphasis supplied)
18. While relying upon the decision of the Constitution Bench in Ukha Kolhe
(supra), this court discussed the scope of Section 386 of Cr.P.C in Ajay Kumar
Ghoshal v. State of Bihar,24 to the effect that:
“10. Section 386 CrPC deals with the powers of the appellate court.
As per Section 386(b) CrPC in an appeal from a conviction, the
appellate court may : (i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be retried by a court of competent
jurisdiction subordinate to such appellate court or committed for trial,
or (ii) alter the finding, maintaining the sentence, or (iii) with or without
altering the finding, alter the nature or the extent, or the nature and
extent, of the sentence, but not so as to enhance the same.
23
(2012) 9 SCC 408
24
(2017) 12 SCC 69914 | SLP (Crl) No. 8700 of 2023
11. Though the word “retrial” is used under Section 386(b)(i) CrPC,
the powers conferred by this clause is to be exercised only in
exceptional cases, where the appellate court is satisfied that the
omission or irregularity has occasioned in failure of justice. The
circumstances that should exist for warranting a retrial must be such
that where the trial was undertaken by the court having no jurisdiction,
or trial was vitiated by serious illegality or irregularity on account of
the misconception of nature of proceedings. An order for retrial may be
passed in cases where the original trial has not been satisfactory for
some particular reasons such as wrong admission or wrong rejection of
evidences or the court refused to hear certain witnesses who were
supposed to be heard.
12. “De novo” trial means a “new trial” ordered by an appellate court
in exceptional cases when the original trial failed to make a
determination in a manner dictated by law. The trial is conducted afresh
by the court as if there had not been a trial in first instance.
Undoubtedly, the appellate court has power to direct the lower court to
hold “de novo” trial. But the question is when such power should be
exercised…”
(Emphasis supplied)
19. This court in Nasib Singh v. State of Punjab,25 formulated the principles
emerging from several decisions on retrial given by this Court:
33. The principles that emerge from the decisions of this Court on retrial
can be formulated as under:
33.1. The appellate court may direct a retrial only in “exceptional”
circumstances to avert a miscarriage of justice.
33.2. Mere lapses in the investigation are not sufficient to warrant a
direction for retrial. Only if the lapses are so grave so as to prejudice
the rights of the parties, can a retrial be directed.
33.3. A determination of whether a “shoddy” investigation/trial has
prejudiced the party, must be based on the facts of each case pursuant
to a thorough reading of the evidence.
33.4. It is not sufficient if the accused/prosecution makes a facial
argument that there has been a miscarriage of justice warranting a
retrial. It is incumbent on the appellate court directing a retrial to
provide a reasoned order on the nature of the miscarriage of justice
caused with reference to the evidence and investigatory process.
33.5. If a matter is directed for retrial, the evidence and record of the
previous trial is completely wiped out.
33.6. The following are some instances, not intended to be exhaustive,
of when the Court could order a retrial on the ground of miscarriage of
justice:
25
(2022) 2 SCC 89
15 | SLP (Crl) No. 8700 of 2023
(a) The trial court has proceeded with the trial in the absence of
jurisdiction;
(b) The trial has been vitiated by an illegality or irregularity based
on a misconception of the nature of the proceedings; and
(c) The prosecutor has been disabled or prevented from adducing
evidence as regards the nature of the charge, resulting in the trial being
rendered a farce, sham or charade.
(Emphasis supplied)
20. In the present case, the High Court, after acquitting the appellant, directed
the CBI to re-investigate after considering the relevant material and documents
on record. A perusal of the judgment reveals that the learned division bench
discussed the material on record in depth in arriving at the conclusion that “this
is a case where there is no evidence at all.” Considering that this was an appeal
from a sentence of capital punishment, it was observed:
“15. It is not known on what basis, particularly there is an acute dearth
of evidence, the trial court has gone to the extent of awarding death
sentence…”It would be worthwhile to refer to the two succeeding paragraphs as well.
“16. The learned Additional Public Prosecutor would point out the
observation made by the trial court, while giving conviction, stating that
the sexual abuses against children are increasing; that the child marriage
is also on the increase; that there is no protection for the children; that the
child who innocently followed the accused, while not knowing fatefully
unaware of, had been done to death; that the act of the accused is beastly,
the accused is liable to be punished by hanging him to death, is totally
illegal, unjust and unwarranted.
16.1 Whether these observations alone, without there being basic
evidence connecting the crime and the accused, are sufficient to award a
capital punishment?. Only if the evidence establishes the crime as against
the accused, while considering the quantum of punishment, they may be
relevant considerations. In any event, these factors cannot be
consideration to record a finding of guilt as against the accused.”16 | SLP (Crl) No. 8700 of 2023
21. This Court has observed in Kailash Gour v. State of Assam26 that any
benefit accruing from faulty investigation ought to be given to the accused. The
necessary corollary thereof being that simply because the investigation was less
than satisfactory, the accused should not be subjected to the same once more.
43. … That an accused is presumed to be innocent till he is proved guilty
beyond a reasonable doubt is a principle that cannot be sacrificed on the
altar of inefficiency, inadequacy or inept handling of the investigation by
the police. The benefit arising from any such faulty investigation ought
to go to the accused and not to the prosecution. So also, the quality and
creditability of the evidence required to bring home the guilt of the
accused cannot be different in cases where the investigation is
satisfactory vis-à-vis cases in which it is not. The rules of evidence and
the standards by which the same has to be evaluated also cannot be
different in cases depending upon whether the case has any communal
overtones or in an ordinary crime for passion, gain or avarice.
(Emphasis supplied)
22. Having observed as extracted supra, the High Court held that the appellant
deserved acquittal. Keeping in view the aforesaid authorities, the question then
is, could the High Court have ordered the crime to be re-investigated?
23. Firstly, what must be acknowledged is that there exists a clear difference
between retrial and reinvestigation. Retrial implies that the judicial process that
starts after the investigation of the crime is complete shall be redone from the
start, whereas the latter implies that the police and other investigating authorities
are once again required to collect and examine evidence in order to present
charges before a Court, so that the trial can commence on such freshly collected
evidence.
26
(2012) 2 SCC 34
17 | SLP (Crl) No. 8700 of 2023
24. Section 386(b) of Cr.P.C, extracted supra, as also the judgments referred
to in the earlier portion of this judgment, unanimously speak of retrial and not
reinvestigation. Section 173(8) of the Cr.P.C provides for further investigation
with the permission of the magistrate, but not reinvestigation. Such a concept, as
it appears, is only invoked in extraneous circumstances. The mere observation
that the investigating authorities may have taken a lackadaisical ethical approach
does not warrant the accused being put through the wringer once more for the
same offence.
25. Learned counsel for the respondent while supporting the contention that
the High Court had the requisite power to order reinvestigation cited the judgment
of this Court in Devendra Nath Singh (supra), wherein, relying on Vinay Tyagi
v. Irshad Ali27 it has been observed that fresh, de novo and reinvestigation are
synonymous expressions and the law applicable thereon would be the same. This
observation, we find, was made in the context of Section 482 Cr.PC or Article
226 of the Constitution of India. In the present case, however, the direction for
reinvestigation was given under Section 386 Cr.PC. Since the applicable power
is different in the present case, Devendra Nath (supra) is distinguished on facts.
26. In that view of the matter, the direction of the High Court, transferring the
investigation to CBI and directing them to reinvestigate the offence allegedly
committed, was without the authority of law and, therefore, has to be set aside.
27
(2013) 5 SCC 762
18 | SLP (Crl) No. 8700 of 2023
We may notice certain authorities of this Court where observations have been
made qua transfer of investigation to C.B.I., as follows:-
(a) State of W.B. v. Committee for Protection of Democratic Rights28:
“70. Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles 32 and 226
of the Constitution, while passing any order, the Courts must bear in
mind certain self-imposed limitations on the exercise of these
constitutional powers. The very plenitude of the power under the said
articles requires great caution in its exercise. Insofar as the question of
issuing a direction to CBI to conduct investigation in a case is
concerned, although no inflexible guidelines can be laid down to decide
whether or not such power should be exercised but time and again it has
been reiterated that such an order is not to be passed as a matter of
routine or merely because a party has levelled some allegations against
the local police. This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes necessary to
provide credibility and instil confidence in investigations or where the
incident may have national and international ramifications or where
such an order may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise CBI would be flooded with
a large number of cases and with limited resources, may find it difficult
to properly investigate even serious cases and in the process lose its
credibility and purpose with unsatisfactory investigations.”(Emphasis Supplied)
(b) Mandakini Diwan and Anr. v. High Court of Chhattisgarh and Ors29:
“14. It is true that power to direct CBI to conduct investigation is to be
exercised sparingly and such orders should not be passed in routine
manner. In the present case, the aggrieved party has raised allegations
of bias and undue influence on the police machinery of the State of
Chhattisgarh. Coupled with the fact that the thorough, fair and
independent investigation needs to be carried out to find out the truth
about the whole incident and in particular about the ante mortem
injuries. We are of the view that such a direction needs to be issued in
the present case.”28
(2010) 3 SCC 571
29
2024 SCC Online SC 244819 | SLP (Crl) No. 8700 of 2023
27. A perusal of the judgments above shows that the transfer to CBI, as already
observed must take place in special circumstances, or else the agency, being with
limited resources shall be overburdened and rendered ineffective. In directing as
such, the High Court has not referred to any such special circumstance arising in
the present case. On such further count, the transfer of the case to CBI is rendered
questionable and therefore set aside.
28. Let us now move to the next issue. Apart from the fact that reinvestigation
of the same offence or the same set of facts is impermissible, the appellant has
also canvassed the point that the High Court’s order goes against the well-
established principle of criminal jurisprudence that a person cannot be punished
for the same offence twice or the principle of double jeopardy. Before proceeding
to the merits of such a claim in the present case, it would be aposite to examine
the judicial pronouncements on this count.
29. The appellant submits that the principle of double jeopardy is not only
recognized by the Constitution but also reiterated in several statutory enactments.
They are: –
The Constitution recognizes this principle in Article 20 which reads as under:-
“20. Protection in respect of conviction for offences.—(1) No
person shall be convicted of any offence except for violation of a law
in force at the time of the commission of the act charged as an offence,
nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the
offence.
(2) No person shall be prosecuted and punished for the same offence
more than once.
20 | SLP (Crl) No. 8700 of 2023
(3) No person accused of any offence shall be compelled to be a
witness against himself.”Section 300 of Cr.P.C.:
“300. Person once convicted or acquitted not to be tried for
same offence.—(1) A person who has once been tried by a Court of
competent jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in force, not
be liable to be tried again for the same offence, nor on the same facts
for any other offence for which a different charge from the one made
against him might have been made under sub-section (1) of Section 221,
or for which he might have been convicted under sub-section (2)
thereof.
(2) A person acquitted or convicted of any offence may be
afterwards tried, with the consent of the State Government, for any
distinct offence for which a separate charge might have been made
against him at the former trial under sub-section (1) of Section 220.
(3) A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different
offence from that of which he was convicted, may be afterwards tried
for such last-mentioned offence, if the consequences had not happened,
or were not known to the Court to have happened, at the time when he
was convicted.
(4) A person acquitted or convicted of any offence constituted by
any acts may, notwithstanding such acquittal or conviction, be
subsequently charged with, and tried for, any other offence constituted
by the same acts which he may have committed if the Court by which
he was first tried was not competent to try the offence with which he is
subsequently charged.
(5) A person discharged under Section 258 shall not be tried again
for the same offence except with the consent of the Court by which he
was discharged or of any other Court to which the first-mentioned Court
is subordinate.
(6) Nothing in this section shall affect the provisions of
Section 26 of the General Clauses Act, 1897 (10 of 1897) or of Section
188 of this Code.
Explanation. —The dismissal of a complaint, or the discharge of
the accused, is not an acquittal for the purposes of this section.”
Section 40 of the Evidence Act, 1872:
“40. Previous judgments relevant to bar a second suit or trial.—The
existence of any judgment, order or decree which by law prevents any
Court from taking cognizance of a suit or holding a trial, is a relevant21 | SLP (Crl) No. 8700 of 2023
fact when the question is whether such Court ought to take cognizance
of such suit or to hold such trial.”Section 71 of IPC:
“71. Limit of punishment of offence made up of several
offences.—Where anything which is an offence is made up of parts,
any of which parts is itself an offence, the offender shall not be punished
with the punishment of more than one of such of his offences, unless it
be so expressly provided.
[Where anything is an offence falling within two or more separate
definitions of any law in force for the time being by which offences are
defined or punished, or
where several acts, of which one or more than one would by itself
or themselves constitute an offence, constitute, when combined, a
different offence,
the offender shall not be punished with a more severe punishment
than the Court which tries him could award for any one of such
offences.]”Section 26 of the General Clauses Act, 1897:
“26. Provision 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 offence.”
30. Now, turning to the judicial pronouncements, Article 20 of the Constitution
of India:-
(a) Maqbool Hussain v. State of Bombay30:
“12. The Fifth Amendment of the American Constitution enunciated
this principle in the manner following:
“… nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled,
in any criminal case, to be witness against himself….”
* * *
14. These were the materials which formed the background of the
guarantee of fundamental right given in Article 20(2). It incorporated
within its scope the plea of “autrefois convict” as known to the British
jurisprudence or the plea of double jeopardy as known to the American30
(1953) 1 SCC 73622 | SLP (Crl) No. 8700 of 2023
Constitution but circumscribed it by providing that there should be not
only a prosecution but also a punishment in the first instance in order to
operate as a bar to a second prosecution and punishment for the same
offence.
15. The words “before a court of law or judicial tribunal” are not to be
found in Article 20(2). But if regard be had to the whole background
indicated above it is clear that in order that the protection of Article
20(2) be invoked by a citizen there must have been a prosecution and
punishment in respect of the same offence before a court of law or a
tribunal, required by law to decide the matters in controversy judicially
on evidence on oath which it must be authorised by law to administer
and not before a tribunal which entertains a departmental or an
administrative enquiry even though set up by a statute but not required
to proceed on legal evidence given on oath. The very wording of Article
20 and the words used therein:“convicted”, “commission of the act
charged as an offence”, “be subjected to a penalty”, “commission of the
offence”, “prosecuted and punished”, “accused of any offence”, would
indicate that the proceedings therein contemplated are of the nature of
criminal proceedings before a court of law or a judicial tribunal and the
prosecution in this context would mean an initiation or starting of
proceedings of a criminal nature before a court of law or a judicial
tribunal in accordance with the procedure prescribed in the statute
which creates the offence and regulates the procedure.”
(b) S.A. Venkataraman v. Union of India31:
“6. The scope and meaning of the guarantee implied in Article 20(2) of
the Constitution has been indicated with sufficient fullness in the
pronouncement of this Court in Maqbool Hussain v. State of
Bombay [Maqbool Hussain v. State of Bombay, (1953) 1 SCC 736 :
1953 SCR 730] . The roots of the principle, which this clause enacts,
are to be found in the well-established rule of English Law which finds
expression in the maxim “nemo debet bis vexari” — a man must not be
put twice in peril for the same offence. If a man is indicted again for the
same offence in an English court, he can plead, as a complete defence,
his former acquittal or conviction, or as it is technically expressed, take
the plea of “autrefois acquit” or “autrefois convict”. The corresponding
provision in the Federal Constitution of the USA is contained in the
Fifth Amendment, which provides inter alia:
“… nor shall any person be subjected for the same offence to be twice
put in jeopardy of life and limb.…”
This principle has been recognised and adopted by the Indian
Legislature and is embodied in the provisions of Section 26 of the
General Clauses Act and Section 403 of the Criminal Procedure Code.
7. Although these were the materials which formed the background of
the guarantee of the fundamental right given in Article 20(2) of the
Constitution, the ambit and contents of the guarantee, as this Court31
(1954) 1 SCC 58623 | SLP (Crl) No. 8700 of 2023
pointed out in the case referred to above, are much narrower than those
of the common law rule in England or the doctrine of “double jeopardy”
in the American Constitution. Article 20(2) of our Constitution, it is to
be noted, does not contain the principle of “autrefois acquit” at all. It
seems that our Constitution-makers did not think it necessary to raise
one part of the common law rule to the level of a fundamental right and
thus make it immune from legislative interference. This has been left to
be regulated by the general law of the land. In order to enable a citizen
to invoke the protection of clause (2) of Article 20 of the Constitution,
there must have been both prosecution and punishment in respect of the
same offence. The words “prosecuted and punished” are to be taken not
distributively so as to mean prosecuted or punished. Both the factors
must co-exist in order that the operation of the clause may be attracted.
The position is also different under the American Constitution. There
the prohibition is not against a second punishment but against the peril
in which a person may be placed by reason of a valid indictment being
presented against him, before a competent court, followed by proper
arraignment and plea and a lawful impanelling of the jury. It is not
necessary to have a verdict at all [ Willis on Constitutional Law, p.
528.].”
Both the above cited judgments were recently followed in T.P. Gopalakrishnan
v. State of Kerala32.
(c) State v. Nalini33:
“236. The well-known maxim “nemo debet bis vexari pro eadem
causa” (no person should be twice vexed for the same offence)
embodies the well-established common law rule that no one should be
put to peril twice for the same offence. The principle which is sought to
be incorporated into Section 300 of the Criminal Procedure Code is that
no man should be vexed with more than one trial for offences arising
out of identical acts committed by him. When an offence has already
been the subject of judicial adjudication, whether it ended in acquittal
or conviction, it is negation of criminal justice to allow repetition of the
adjudication in a separate trial on the same set of facts.
237. Though Article 20(2) of the Constitution of India embodies a
protection against a second trial after a conviction of the same offence,
the ambit of the clause is narrower than the protection afforded by
Section 300 of the Criminal Procedure Code. It was held by this Court
in Manipur Admn.v. Thokchom Bira Singh [AIR 1965 SC 87 : (1965) 1
Cri LJ 120] that “if there is no punishment for the offence as a result of
the prosecution, Article 20(2) has no application”. While the clause
embodies the principle of autrefois convict Section 300 of the Criminal32
(2022) 14 SCC 323
33
(1999) 5 SCC 25324 | SLP (Crl) No. 8700 of 2023
Procedure Code combines both autrefois convict and autrefois acquit.
…”
(d) Monica Bedi v. State of A.P.34:
“22. Article 20(2) embodies a protection against a second trial and
conviction for the same offence. The fundamental right guaranteed is
the manifestation of a long struggle by the mankind for human rights.
A similar guarantee is to be found in almost all civilised societies
governed by rule of law. The well-known maxim nemo debet bis
vexari pro una et eadem causa embodies the well-established
common law rule that no one should be put on peril twice for the same
offence. Blackstone referred to this universal maxim of the common
law of England that no man is to be brought into jeopardy of his life
more than once for the same offence.
23. The fundamental right guaranteed under Article 20(2) has its roots
in common law maxim nemo debet bis vexari — a man shall not be
brought into danger for one and the same offence more than once. If a
person is charged again for the same offence, he can plead, as a
complete defence, his former conviction, or as it is technically
expressed, take the plea of autrefois convict. This in essence is the
common law principle. The corresponding provision in the American
Constitution is enshrined in that part of the Fifth Amendment which
declares that no person shall be subject for the same offence to be
twice put in jeopardy of life or limb. The principle has been recognised
in the existing law in India and is enacted in Section 26 of the General
Clauses Act, 1897 and Section 300 of the Criminal Procedure Code,
1973. This was the inspiration and background for incorporating sub-
clause (2) into Article 20 of the Constitution. But the ambit and
content of the guaranteed fundamental right are much narrower than
those of the common law in England or the doctrine of “double
jeopardy” in the American Constitution.”
See also Sangeetaben Mahendrabhai Patel v. State of Gujarat.35
31. In our considered view, the position of law that the principle applies is
unquestionable. The three conditions laid down in T.P. Gopalakrishnan (supra)
are: Firstly, there must have been previous proceedings before a court of law or
a judicial tribunal of competent jurisdiction in which the person must have been
34
(2011) 1 SCC 284
35
(2012) 7 SCC 621
25 | SLP (Crl) No. 8700 of 2023
prosecuted. The said prosecution must be valid and not null and void or
abortive. Secondly, the conviction or acquittal in the previous proceeding must be
in force at the time of the second proceeding in relation to the same offence and
same set of facts, for which he was prosecuted and punished in the first
proceeding. Thirdly, the subsequent proceeding must be a fresh proceeding,
where he is, for the second time, sought to be prosecuted and punished for the
same offence and same set of facts.
32. In the present facts, a previous proceeding did take place wherein the Trial
Court convicted the appellant and sentenced him to death. There is no question
as to the Court’s competence or jurisdiction. The first condition is, therefore, met.
The acquittal awarded by the High Court has to remain in force for the cardinal
principle of criminal jurisprudence of innocent until proven guilty applies and
cannot be displaced in except in circumstances otherwise provided by law. The
second principle is also met. Regarding the third condition, had the order been
for retrial, the court could have held that the condition remained unmet; however,
since the direction was for reinvestigation and that too by a different investigation
agency, it necessarily has to begin from zero. Hence, the second investigation,
chargesheet and examination of witnesses would classify as meeting the third
condition.
33. In view of the discussion as aforesaid, this Court is of the view that the
right enshrined in Article 20(2) of the appellant stands violated.
26 | SLP (Crl) No. 8700 of 2023
34. Since this Court has come to the conclusion as above, there survives no
need to examine the applicability of Section 300 of Cr.P.C and other provisions
of law where the principle of double jeopardy stands enshrined.
35. Vision of the High Court, in our considered view was bad in law, and is
therefore quashed and set aside. All proceedings subsequent to such direction,
necessarily have to be held as such and therefore quashed and set aside as well.
The appellant stands acquitted of all charges.
36. The question of law raised in this appeal, is answered in the above terms.
The appeal is allowed as aforesaid. Pending application(s), if any, shall stand
disposed of.
…………………………J.
(C.T. RAVIKUMAR)
…………………………J.
(SANJAY KAROL)
New Delhi;
19th December, 2024.
27 | SLP (Crl) No. 8700 of 2023