T.P. GOPALAKRISHNAN versus STATE OF KERALA

Citation: [2022] 14 S.C.R. 478 · Decided: 08-12-2022 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 14 S.C.R.
[2022] 14 S.C.R. 478
478
T.P. GOPALAKRISHNAN
v.
STATE OF KERALA
(Criminal Appeal Nos.187-188 of 2017)
DECEMBER 08, 2022
[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]
Constitution of India: Art.20(2) – Protection against double
jeopardy – Code of Criminal Procedure – s.300 – ‘Same offence’
meaning of – Appellant-accused worked as Agricultural officer for
the period 31.05.1991 to 31.05.1994 – Accusations against him
was that he committed criminal breach of trust and misappropriated
certain amount in his official position as a public servant, by not
remitting the same to the sub-treasury – Accusations related to time
period from 27.04.1992 to 25.08.1992 and 01.03.1993 to
12.04.1994 – Trial Court convicted the appellant for offences u/
ss.13(2) r/w 13(1)(c) of the PC Act and s.409 IPC – High Court
upheld the conviction – Appellant contended inter alia that present
cases are barred u/s.300 CrPC as he was already prosecuted in
previous three cases pertaining to the same allegations wherein he
was convicted in two cases and acquitted in one case – On appeal,
held: There are three conditions for application of Art. 20(2) –
Firstly, previous proceedings before a court of law or a judicial
tribunal of competent jurisdiction in which the person must have
been prosecuted, the prosecution must be valid and not null or
abortive – Secondly, conviction or acquittal in the previous
proceedings must be in force at the time of the second proceedings
in relation to the same offence and same set of facts, for which he
was prosecuted and punished in the first proceedings – 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 – ‘Same offence’ means where the
offences are not distinct and the ingredients of the offences are
identical – Embargo of double jeopardy u/Art.20 does not apply
where there are two distinct offences made up of different ingredients
though offences may have some overlapping features – The charges
in the present case are for relevant period from 27.04.1992 to
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25.08.1992 and 01.03.1993 to 12.04.1994 which time period is
same as in the previous three cases, that is 28.02.1994 to 02.04.1994,
15.12.1992 to 31.03.1993 and 05.03.1994 to 08.03.1994 – Present
cases pertain to same set of facts and are in respect of same period
of misappropriation – The matter in the previous three cases and
the present cases relate to same offences which are committed in the
course of same transaction while holding the one and same post of
Agriculture officer by the appellant – Charges in the previous three
cases were framed after the audit and the prosecution would have
been well aware of the misappropriation in respect of present cases
– Since, appellant has already been prosecuted in the year 1999 in
respect of previous three cases, the trial court as well as High Court
was not right in convicting and sentencing the accused – Embargo
of double jeopardy u/s. 300 applied to the facts of the case –
Prevention of Corruption Act, 1988 – Penal Code, 1860.
Code of Criminal Procedure, 1973: s.300(2) – Subsequent
prosecution for any distinct offence – Failure to take prior consent
of State Government – Effect thereof – Held: When the charge of
the second trial is for distinct offence, the trial is not barred – A
person acquitted or convicted of any offence may be tried for a
distinct offence for which a separate charge might have been framed
with the prior consent of the State Government – In the instant case,
even if the allegations are different from those in the previous cases,
the prosecution having failed to obtain the prior consent of the
State Government, the trial is unlawful.
Code of Criminal Procedure, 1973: Double jeopardy and
double punishment – Difference between – Double punishment may
arise when a person is convicted for two or more offences charged
in one indictment – However, the question of double jeopardy arises
only when a second trial is sought on subsequent indictment fowling
a conviction or acquittal on an earlier indictment – Doctrine of
double jeopardy is not a protection to the individual from peril of
second sentence or punishment, nor to the service of sentence for
one offence – It is a protection against double jeopardy for the
same offence that is, against a second trial for the same offence
Constitution of India – Art. 21 – Ri
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