Double jeopardy
ajay shakar
(Querist) 18 September 2012
This query is : Resolved
whether a man can be prosecuted under section 304A of I.P.C.in police case and under section 92 0f factory act 1948 in complaint case simultaneously in different courts for same incident.
Adv.R.P.Chugh
(Expert) 18 September 2012
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 subsection (2) thereof.
Sudhir Kumar, Advocate
(Expert) 18 September 2012
In this case the same set of action of the accused, apprently constitute two offences under two different statutes. No double jeoparady is involved.
Guest
(Expert) 18 September 2012
Dear Ajay Shankar,
Hope you would have cited sec. 304A correctly.
However, without writing brief of charge separately of both the cases, I don't think, you would be able to get right solution to your problem in reply to your academic query of generic nature. Being an advocate, I understand, you very well know that section 304/IPC pertains to penalty for culpable homicide, while sec.92 of Factories Act prescribes general penalties for offences that pertains to contravention of any of the provisions of the Factories Act.
So, whether there is any difference of offence or not under the stated two laws, can be identified only if you write some brief about two cases.
ajay sethi
(Expert) 18 September 2012
there is a judgement of madras high court on the issue wherein madras high court has held that since both criminal offences have been lodged based on common occurence the second case can be quashed as it would amount to double jepoardy . the accused has already been convicted and punished in first case . second case can be quashed
ajay sethi
(Expert) 18 September 2012
Madras High Court
R.Kannan vs State By on 26 September, 2008
DATED: 26-09-2008
CORAM:
THE HONOURABLE MR. JUSTICE S.TAMILVANAN
CRL.O.P.No.3749 of 2007
and M.P.No.1 of 2007
R.Kannan .. Petitioner
vs.
State by
Sub-Inspector of Police
Chithode Police Station,
Erode District. .. Respondent
Petition filed under Section 482 Cr.P.C, seeking a direction to call for the records in C.C.No.249 of 2006 on the file of the Judicial Magistrate No.III, Erode and quash the same. For Petitioner : Mr.Sivaprakash
for Mr.A.K.Kumarasamy
For Respondent : Mr.V.R.Balasubramanian
Addl. Public Prosecutor
O R D E R
The petitioner herein is the accused in C.C.No.249 of 2006 on the file of the Judicial Magistrate No.III, Erode. The petitioner / accused has filed this petition under Section 482 of the Code of Criminal Procedure to quash the proceedings, pending before the Judicial Magistrate No.III, Erode.
2. Mr.Sivaprakash, learned counsel appearing for the petitioner submitted that he was the manager of M/s. Pioneer Mills, a private limited company, situated at R.N.Pudur, Bhavani Main Road, Erode, at the relevant point of time. On 09.08.2005 at about 7.30 p.m, when the employees were working in the factory, a boiler in the factory got burst causing injuries to the workers, due to which, one injured died and another was admitted in the hospital. A case was registered against the petitioner / accused under Sections 287, 338 and 304 (A) IPC. The learned counsel further contended that on the aforesaid occurrence, similar criminal proceeding was initiated in C.C.No.74 of 2005 on the file of the Chief Judicial Magistrate, Erode, charge-sheet was filed against the petitioner for the offence, punishable under Sections 41, Rule 61(R) read with Section 92 of Factories Act. The said case ended in conviction, whereby a fine of Rs.25,000/-was imposed and in default, the petitioner / accused was directed to undergo Simple Imprisonment for a period of 2 months, as per the Judgment of Chief Judicial Magistrate, Erode, dated 12.12.2005 and the petitioner paid the fine amount, imposed by the court.
3. According to the learned counsel appearing for the petitioner, the case in C.C.No.249 of 2006 pending on the file of the Judicial Magistrate No.III, Erode is also a criminal case, based on the very same occurrence that had taken place on 09.08.2005 at 7.30 p.m in the aforesaid premises, on account of the burst of the boiler and therefore, as per Article 22 of the Constitution of India, it is to be construed as double jeopardy, which is prohibited under Law.
4. Mr.V.R.Balasubramanian, learned Additional Public Prosecutor appearing for the respondent has not disputed the fact that both the criminal cases were registered against the petitioner, based on he same occurrence, that had taken place on 09.08.2005 at 7.30 p.m in the premises of M/s. Pioneer Mills, a private limited company. As contended by the learned Additional Public Prosecutor, the charges framed in the earlier case in C.C.No.74 of 2005 on the file of the Judicial Magistrate, Erode is for offence under Sections 41, Rule 61(R) read with Section 92 of Factories Act. The charges framed in the present case in C.C.No.249 of 2006 is under Sections 287, 338 and 304 (A) IPC and both cases are based on the same occurrence and hence, the alleged offences could have been tried in the same criminal court. However, after the trial, Chief Judicial Magistrate, Erode has convicted the accused, as per his Judgment, whereas the other case is pending before the Judicial Magistrate No.III, Erode.
5. According to the learned counsel appearing for the petitioner, the second case pending before the Judicial Magistrate No.III, Erode, after the disposal of the earlier case is only a double jeopardy and not maintainable.
6. It is not in dispute that a departmental proceedings and a criminal case, both can go simultaneously. Similarly, in case of the charges relating to different occurrence, one after another, the respondent can maintain both the cases, without any legal bar. Admittedly, in the instant case, the occurrence had taken place on 09.08.2005 at 7.30 p.m on account of the burst of the boiler, that was installed in the factory and that was the basis for filing the cases, one before the Chief Judicial Magistrate, Erode in C.C.No.74 of 2005 and the other case in C.C.No.249 of 2006 before the Judicial Magistrate No.III, Erode. Had the present case was transferred to the file of the Chief Judicial Magistrate, Erode, both could have been tried together, however, no steps were taken by the respondent, for simultaneous trial of the criminal cases, by the same court.
7. It is an admitted fact that for the occurrence that had taken place on 09.08.2005 at about 7.30 p.m, the petitioner herein, who was the supervisor / manager of the factory, was prosecuted under Sections 41, Rule 61(R) read with Section 92 of Factories Act and convicted. Admittedly it is a penal action for the negligence attributed against the petitioner / accused. The present case in C.C.No.249 of 2006 pending on the file of the Judicial Magistrate No.III, Erode is also based on the same occurrence and it is also a criminal proceeding. Therefore, I am of the view that after the conviction and sentence imposed in earlier case in C.C.No.74 of 2005 by the Chief Judicial Magistrate, based on the same occurrence, the other case in C.C.No.249 of 2006 would not be maintainable, as the occurrence is one and the same, hence proceeding with the second criminal case for the same occurrence, amounts to double jeopardy and therefore, in the interest of justice, I am of the view that the Criminal Original Petition has to be allowed.
8. In the result, this Criminal Revision Petition is allowed and the proceedings in C.C.No.249 of 2006 on the file of the Judicial Magistrate No.III, Erode is quashed. Consequently, connected miscellaneous petition is closed. No costs. tsvn
To
1. The Judicial Magistrate No.III
Erode.
2. The Sub-Inspector of Police
Chithode Police Station,
Erode District.
3. The Public Prosecutor,
High Court,
Chennai
Arun Kumar Bhagat
(Expert) 27 October 2012
Whether the Complainant is same ? If yes then there can not be two parallel case. If the Complainant in two cases are different then there can be two cases.
