- (1.) In a Sessions Trial held before the learned Additional District and Sessions Judge, Fast Track - 3rd Court, Barrackpore, 24 Parganas (N) total 8 persons viz. Jagannath Biswas, Chitta Sarkar, Tapas Biswas, Robin Ray, Sripati Majumder, Ashu Bairagi, Nitya Biswas and Swapan Biswas were convicted under section 341/326/307 read with section 34 I.P.C. and were sentenced to suffer R.I. for 1 month and to pay fine of Rs. 500/- in default to suffer R.I. for 10 days for their conviction under 341/34 I.P.C., to suffer R.I. for 10 years and to pay fine of Rs. 500/- in default to suffer R.I for 1 year under section 326/34 I.P.C, to suffer R.I. for 10 years and to pay fine of Rs. 500/- in default to suffer R.I for 1 year under section 307/34 IPC. Against the aforesaid order of conviction and sentence all the aforesaid 8 convicts preferred an appeal being Criminal Appeal No. 531 of 2008 before this High Court. The said appeal was then came up for hearing before a Division Bench comprising of Hon'ble Justice Girish Chandra Gupta and Hon'ble Justice Indira Banerjee. After hearing of the appeal while Justice Girish Chandra Gupta was of the opinion that except appellant Jagannath Biswas, the prosecution was not able to establish the charges against the remaining 7, and while upholding the order of conviction and sentence passed against the appellant Jagannath Biswas acquitted the remaining 7 convicts, whereas the Hon'ble Justice Indira Banerjee was of the opinion that the prosecution has failed to prove charges against all the 8 appellants and they were entitled to acquittal. In view of such difference of opinion the appeal has now been referred before this Court under section 392 of the Code of Criminal Procedure.
(2.) Mr. Ashis Sanyal, the learned Counsel appearing on behalf of the 7 appellants, in respect of whom both the learned Judges of the Division Bench were consensus in their opinion that against them no charge has been established for which they were convicted, vehemently contended that in this reference under section 392 Cr.P.C. this court is devoid of any jurisdiction to reopen their case. He further contended both the learned Judges of the Division Bench having concurred that those 7 appellants were entitled to acquittal and thus allowed the appeal, in this reference it would not be permissible for this Court to form any opinion as to the correctness of the same. In this regard he relied on a decision of the Hon'ble Apex Court in the Case of Bhagat Ram v. State of Rajasthan, 1972 AIR(SC) 1502 the background of facts of that case, were as follows : "Two accuseds Bhagat Ram and Ram Swaroop were tried before the Special Judge, Ganganagar for offences under section 120B IPC for conspiring to extort a bribe of Rs. 2000/- from one Niranjan Das. In addition to that Bhagat Ram was also charged under section 161/218/347/389 IPC and under section 5(1)(a) read with section 5(2) of Prevention of Corruption Act, while Ram Swaroop was additionally charged under section 165A IPC. Both of them were acquitted in the trial, when the State of Rajasthan preferred an appeal before the High Court challenging their acquittal. The appeal was heard by a Division Bench and same was dismissed, so far that relates to the order of acquittal of Ram Swaroop in respect of all offences. The Division Bench also dismissed the said appeal against the acquittal of Bhagat Ram, so far that relates to the offences punishable under section 347/218/389/120B IPC. However, there was a difference of opinion between the learned Judges on the point as to whether the acquittal of Bhagat Ram for offences under section 161 IPC and under section 5(1)(a) of the Prevention of Corruption Act should be maintained or not. Accordingly, the said appeal was referred under section 429 Cr.PC, 1898 (new section 392 Cr.PC, 1973) before a Single Judge. While one of the learned Judges was of the opinion that the order of acquittal of Bhagat Ram for offences under section 161 IPC and section 5(1)(a) of the Prevention of Corruption Act should be maintained and the appeal be dismissed, the other learned Judge opined that Bhagat Ram was guilty of both the offences. The learned Single Judge, before whom the said appeal was referred under section 429 Cr.PC, came to the conclusion, both Ram Swaroop and Bhagat Ram are guilty for the offence under section 120A IPC, punishable under section 120B IPC. However, the learned Single Judge in view of the decision of the Division Bench did not set aside the acquittal of Ram Swaroop but set aside the acquittal of Bhagat Ram for the offences under section 218/347/120B IPC and convicted him under section 218/347/161/120B IPC and imposed the sentences. So far as, Ram Swaroop was concerned he did not interfere with the order of acquittal passed by the Division Bench. Then two separate Special Leave Petitions were filed before the Hon'ble Apex Court. One by Bhagat Ram challenging the order of conviction and sentence passed against him, another by the State challenging the order of acquittal passed in favour of Ram Swaroop. The Hon'ble Apex Court dismissed both the Special Leave Petition."
(3.) Mr. Sanyal in order to substantiate his argument that so far as the 7 appellants whom he was representing and were acquitted on a concurrent findings that their guilt was not established, cannot be reopened strenuously relied on paragraph 13 of the said decision which is reproduced below. "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, in our opinion, not permissible for the third judge to reopen the matter and convict Bhagat Ram for offences under sections 347, 389 and 120B IPC. The matter had been referred under section 429 of the Code of Criminal Procedure to Jagat Narayan, J. because there was a difference of opinion between Tyagi, J. and Lodha, J. regarding the correctness of the acquittal of Bhagat Ram for offenses under section 161 IPC and section 5(1)(a) of Prevention of Corruption Act. Jagat Narayan, J. could go only 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 judges. Had that 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 order had been made by the Division Bench upholding the acquittal of Bhagat Ram for offenses 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 Bhagat Ram for offences under sections 120B, 218 and 347 IPC despite the order of the Division Bench. It was, in our opinion, not within the competence of the learned judge to reopen the 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 charges had been affirmed. The order of the Division Bench unless set aside in appeal to this Court, was binding and conclusive in all subsequent proceedings between the parties. The principle of res judicata is also applicable to criminal proceedings 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 acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the above wholesome principle.";