Gujarat High Court
Gulabbhai Dhaklubhai Bhoya vs State Of Gujarat on 12 June, 2025
NEUTRAL CITATION
R/SCR.A/2334/2017 ORDER DATED: 12/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2334 of 2017
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GULABBHAI DHAKLUBHAI BHOYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RUSHABH SHAH for MR HARDIK H DAVE(6295) for the Applicant
NOTICE SERVED for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/06/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the Code”),
the petitioner has prayed to quash and set aside the order
passed by the learned JMFC, Dharampur in Criminal Case
No.323/2014 vide Exh.:11 dated 23.08.2016 and also to quash
and set aside the order passed by the learned Second Ad-hoc
Additional and Sessions Judge, Dharampur in Criminal
Application No.92/2016 Revision dated 31.01.2017 and quash
and set aside entire proceedings of Criminal Case No.323/2014
pending in the Court of learned JMFC, Dharampur.
2. Brief facts of the case are as under:-
2.1 The petitioner came to be arrested with respect to one
complaint registered with Dharampur Police Station videPage 1 of 18
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Complaint No.2/2013 for the offence under Section 124 of the
Gujarat Police Act. The brief fact of that complaint was that
during regular police patrolling, Police Officer received
confidential information that the petitioner was doing business
of illegal selling of petrol, diesel and kerosene without requisite
permission. On the basis of the said confidential information,
two panch-witnesses were called and the premises of the
petitioner were raided. During the raid, 335 liters of diesel, 160
liters of petrol and 80 liters of kerosene was confiscated which
amounted to Rs.31,495/- and the petitioner was arrested under
the offence of Section 124 of the Gujarat Police Act. The
petitioner was chargesheeted and he had accepted the charge of
Section 124 of the Gujarat Police Act in Criminal Case
No.351/2013.
2.2 The petitioner was convicted and a fine of Rs.100/- was
imposed on him and the same was paid.
2.3 That subsequently, another FIR against the present
petitioner came to be filed with respect to the same raid which
was conducted on 15.03.2013. The second FIR was registered as
C.R.No.II-3062/2013 under Section 3 of the Essential
Commodities Act, 1955 (in short “the Act”). On completion of
investigation, the petitioner was chargesheeted and Criminal
Case No.323/2014 was registered against the present petitioner.
Pending the trial, the petitioner had given an application vide
Exh.:11 to drop the proceedings against the present petitioner as
according to the petitioner, the second FIR under Essential
Commodities Act is in violation of Article 20(2) of the
Constitution of India r/w Section 300 of the Code of Criminal
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Procedure, 1973. The said application came to be rejected and
the petitioner had preferred a revision application. The said
revision application was also rejected.
2.4 Hence, present petition.
3. Learned advocate, Mr. Rushabh Shah appearing for the
petitioner, while assailing the concurrent findings arrived at by
both the learned courts below would mainly argue that for the
same fact, the prosecution has registered two different offences.
In the first offence, the accused upon admission, had been
convicted and that conviction was in force, and yet another
offence on the same fact was registered as Criminal Case No.
323 of 2014 and again, the petitioner was sought to be
prosecuted for the same facts. He would further submit that the
principle of double jeopardy as well as law enshrined in Article
20 of the Constitution of India so also provisions of section 300
(1) of the CRPC is attracted in the present case.
3.1 Highlighting the facts of the case, learned advocate Mr.
Shah would submit that on 15th March 2015, the police has
raided the premises of the accused person and found illegal
possession of petrol worth 160 litre, diesel worth 335 litre and
kerosene worth 80 litre and therefore, offence under section 124
of the Gujarat Police Act was registered against the petitioner.
The said offence was registered as Criminal Case No. 351 of
2013 and pursuant to issuance of the process, the petitioner
remained present before the concerned court and admitted his
guilt. The petitioner was convicted in the offence and was
ordered to pay penalty of Rs.100/-. He would further submit
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that then, on the same facts of the case, another offence was
registered under Section 3 of the Act. Thus, he would submit
that so long the order of conviction in first criminal case is in in
force against the petitioner, he cannot be sent for trial by
registering second offence on the same fact. Learned advocate
Mr. Shah would further submit that the provisions of offence
under section 300 of the CRPC is squarely applicable to the facts
of the present case and the principle of double jeopardy would
cover and clinch the issue. However, both the learned courts
below have declined to accept the same and dismissed the plea
raised by the petitioner for closing and dropping the case and
thereby, committed serious but gross error of understanding the
principle of double jeopardy and provision of Article 20 of the
Constitution of India having due reflection in section 300 of the
Code. By making aforesaid submission, learned advocate Mr.
Shah would submit that the petition may be allowed.
3.2 To buttress his submission, learned advocate Mr. Rushabh
Shah read upon the judgement in case of Manik Hiru Jhangiani
Vs. State of MP, 2023 (16) SCR 551 and in case of P.
Manikandan Vs. CBI, 2025 (0) AIR(SC) 237 so also in case of T.P.
Gopalkrishnan Vs. State of Kerala, 2022 (14) SCC 323.
3.3 Upon such submission, learned advocate Mr. Rushabh
Shah prays to allow this petition.
4. Per contra, learned APP appearing for the State would
submit that the first offence was registered under section 124 of
the Gujarat Police Act, whereby since the petitioner was failed to
offer satisfactory explanation in accordance with the possession
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of the property, the offence was registered. However, during the
investigation, it was found that petrol, diesel and kerosene kept
by the petitioner in his premises is in violation of provisions of
the Act as well as provisions of the the Motor Spirit and High
Speed Diesel (Regulation of Supply, Distribution and Prevention
of Malpractices) Order and the Gujarat Essential Articles Dealers
(Regulation) Order, 1977 and therefore, another FIR was
registered under section 3 of the Act. Ultimately, charge sheet
was filed. He would further submit that in the subsequent trial,
the learned trial court has already framed charge at Exh.3, also
examine three witnesses and at present, the case is at the stage
of recording further evidence. He would further submit that both
the offences may arise from the same facts, but have different
repercussions and are operating in different spears as well as
different accusations are levelled and therefore consequences are
different. The petitioner, who has admitted the offence registered
under section 124 of the Gujarat Police Act cannot claim that the
trial against him under section 3 of the Act on same fact would
be double jeopardy. Learned advocate Mr. Shah would submit
that if both the offences are entirely different, then the
subsequent case is not barred by any of the provisions of section
300 of CRPC. Therefore, learned APP prays to dismiss this
petition.
4.1 In addition to above submission, learned APP would
submit that the Hon’ble Apex Court in case of Chandi Puliya Vs.
State of West Bengal, (2023) 12 SCC 735, held that appropriate
stage for considering the plea of double jeopardy is the stage of
discharge i.e. prior to framing of the charge. He would further
submit that the Hon’ble Apex Court in this case has clarified the
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position of law. In the present case, since the trial has
substantially progressed, and three witnesses have already been
examined, the stage of raising plea of double jeopardy has
already gone, and therefore, the learned trial court has rightly
rejected the application and said order is rightly confirmed by
the learned Sessions Court under revisional jurisdiction.
4.2 Lastly, learning APP would submit that the petition is filed
under Article 227 of the Constitution of India. The concurrent
findings of both the courts below are under challenge and in
view of limited jurisdiction and scope of interference available
under Article 227 of the Construction of India, this court should
not interfere with the impugned order until finds the order
erroneous and palpably illegal.
4.3 Upon such submission, learned APP prays to dismiss this
petition.
5. Heard learned advocates for both the sides and perused
the impugned order and other material placed on records.
6. At the outset, let refer the nature of scope of the
supervisory jurisdiction under Article 227 of the Constitution of
India, which is enlightened in case of Garment Crafts Vs.
Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the
Hon’ble Apex Court in para 15 and 16, held as under:-
“15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order is contrary to
law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdictionPage 6 of 18
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exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising
supervisory jurisdiction does not act as a court of first
appeal to reappreciate, reweigh the evidence or facts upon
which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of
fact or even a legal flaw when the final finding is justified
or can be supported. The High Court is not to substitute
its own decision on facts and conclusion, for that of the
inferior court or tribunal [Celina Coelho Pereira (Ms) and
Others v. Ulhas Mahabaleshwar Kholkar and Others,
(2010) 1 SCC 217]. The jurisdiction exercised is in the
nature of correctional1 jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of
fundamental principles of law or justice. The power under
Article 227 is exercised sparingly in appropriate cases,
like when there is no evidence at all to justify, or the
finding is so perverse that no reasonable person can
possibly come to such a conclusion that the court or
tribunal has come to. It is axiomatic that such
discretionary relief must be exercised to ensure there is
no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd.,
(2001) 8 SCC 97 has observed:-
“6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of power
under this article involves a duty on the High Court to
keep inferior courts and tribunals within the bounds of
their authority and to see that they do the duty expected
or required of them in a legal manner. The High Court is
not vested with any unlimited prerogative to correct all
kinds of hardship or wrong decisions made within the
limits of the jurisdiction of the subordinate courts or
tribunals. Exercise of this power and interfering with the
orders of the courts or tribunals is restricted to cases of
serious dereliction of duty and flagrant violation of
fundamental principles of law or justice, where if the HighPage 7 of 18
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Court does not interfere, a grave injustice remains
uncorrected. It is also well settled that the High Court
while acting under this article cannot exercise its power
as an appellate court or substitute its own judgment in
place of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an
inferior court or tribunal, if there is no evidence at all to
justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which the
court or tribunal has come to.”
7. With profit, I may also refer to the judgment of the Hon’ble
Apex Court in case of Sameer Suresh Gupta Through power of
attorney Holder Versus Rahul Kumar Agarwal, 2013 (9) SCC
374, considering the nature of scope of the supervisory
jurisdiction under Article 227 of the Constitution of India, the
Hon’ble Apex Court has held as under:-
“6. In our view, the impugned order is liable to be set
aside because while deciding the writ petition filed by
the respondent the learned Single Judge ignored the
limitations of the High Court’s jurisdiction under Article
227 of the Constitution. The parameters for exercise of
power by the High Court under that article were
considered by the two-Judge Bench of this Court in
Surya Dev Rai v. Ram Chander Rai. After considering
various facets of the issue, the two-Judge Bench culled
out the following principles: (SCC pp. 694-96, para 38)“(1)Amendment by Act 46 of 1999 with effect from
1-7-2002 in Section 115 of the Code of Civil
Procedure cannot and does not affect in any
manner the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which
remedy of revision has been excluded by CPCPage 8 of 18
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Amendment Act 46 of 1999 are nevertheless open
to challenge in, and continue to be subject to,
certiorari and supervisory jurisdiction of the High
Court.
(3) Certiorari, under Article 226 of the
Constitution, is issued for correcting gross errors
of jurisdiction i.e. when a subordinate court is
found to have acted (i) without jurisdiction – by
assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction – by overstepping or
crossing the limits of jurisdiction, or (iii) acting in
flagrant disregard of law or the rules of procedure
or acting in violation of principles of natural
justice where there is no procedure specified, and
thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of
the Constitution is exercised for keeping the
subordinate courts within the bounds of their
jurisdiction. When a subordinate court has
assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does
have or the jurisdiction though available is being
exercised by the court in a manner not permitted
by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to
correct mere errors of fact or of law unless the
following requirements are satisfied: (i) the error is
manifest and apparent on the face of the
proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of
law, and (ii) a grave injustice or gross failure of
justice has occasioned thereby.
(6) A patent error is an error which is self-evident
i.e. which can be perceived or demonstrated
without involving into any lengthy or complicated
argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and
the subordinate court has chosen to take one
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view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where the
judicial conscience of the High Court dictates it to
act lest a gross failure of justice or grave injustice
should occasion. Care, caution and
circumspection need to be exercised, when any of
the abovesaid two jurisdictions is sought to be
invoked during the pendency of any suit or
proceedings in a subordinate court and the error
though calling for correction is yet capable of
being corrected at the conclusion of the
proceedings in an appeal or revision preferred
thereagainst and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High
Court would obstruct the smooth flow and/or
early disposal of the suit or proceedings. The High
Court may feel inclined to intervene where the
error is such, as, if not corrected at that very
moment, may become incapable of correction at a
later stage and refusal to intervene would result in
travesty of justice or where such refusal itself
would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not convert itself into
a court of appeal and indulge in reappreciation or
evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or
technical character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and those
calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction
exercised by the High Courts in India unlike
English courts has almost obliterated the
distinction between the two jurisdictions. While
exercising jurisdiction to issue a writ of certiorari,
the High Court may annul or set aside the act,
order or proceedings of the subordinate courts but
cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the
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High Court may not only give suitable directions
so as to guide the subordinate court as to the
manner in which it would act or proceed
thereafter or afresh, the High Court may in
appropriate cases itself make an order in
supersession or substitution of the order of the
subordinate court as the court should have made
in the facts and circumstances of the case.”
8. The court, therefore, ordinarily should not interfere with
the concurrent findings arrived at by the learned Court below
under Article 227 of the Construction of India until it is
established by the person assailing concurrent finding that there
is miscarriage of justice and the findings arrived by the learned
Court below could not have been the findings of ordinary
prudence or findings are unjust and illegal. Keeping in mind the
limited scope of interference with the concurrent findings and
examining the facts of the case in context of the submission
canvassed by learned advocate Mr. Rushabh Shah, it appears
that main thrust of argument is that the second trial against the
petitioner is barred under the principle of double jeopardy as
well as under section 300(1) of the CRPC.
9. I may refer to section 300 (1)as under:
“SECTION 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, hot 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-
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section (1) of section 221, or for which he might have
been convicted under sub-section (2) thereof.”
10. Section 300 of the CrPC embodies the general rule which
affirms the validity of the pleas of “autrefois acquit” (previously
acquitted) and autrefois convict (previously convicted). Sub-
section (1) of Section 300 lays down the rule of double jeopardy
and sub-sections (2) to (5) deal with the exceptions. Accordingly,
till an order of acquittal or conviction by a court of competent
jurisdiction remains in force, the person cannot be tried for the
same offence for which he was tried earlier or for any other
offence arising from the same fact situation, except the cases
dealt in with under sub-sections (2) to (5) of section 300 of the
Code. The Hon’ble Apex Court in case of T.P. Gopalkrishnan
(supra), has vividly discussed and explain import of section 300
of the Code of Criminal Procedure, 1973 in para 22 to 29, which
reads as under:-
“22. Section 300 of the CrPC embodies the general rule
which affirms the validity of the pleas of autrefois
acquit (previously acquitted) and autrefois convict
(previously convicted). Sub-section (1) of Section 300
lays down the rule of double jeopardy and sub-sections
(2) to (5) deal with the exceptions. Accordingly, so long
as an order of acquittal or conviction by a court of
competent jurisdiction remains in force, the person
cannot be tried for the same offence for which he was
tried earlier or for any other offence arising from the
same fact situation, except the cases dealt in with
under sub-sections (2) to (5) of the section.
23. Section 300 of the CrPC is based on the maxim
nemo deber bis vexari, si costest curiae quod sit pro
una et eadem causa which means that a person cannot
be tried a second time for an offence which is involved
in an offence with which he was previously charged. AsPage 12 of 18
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per the decision of this Court in Vijayalakshmi vs.
Vasudevan (1994) 4 SCC 656 in order to bar the trial of
any person already tried, it must be shown that:
(i) he has been tried by a competent court for the
same offence or one for which he might have been
charged or convicted at a trial, on the same facts,
(ii) he has been convicted or acquitted at the trial,
and
(iii) such conviction or acquittal is in force.
24. The whole basis for this provision is that the first
trial should have been before court of competent
jurisdiction. There must have been a trial of the
accused, that is to say, that there should have been a
hearing and determination or adjudication of the case
on merits. Where the accused has not been tried and as
such convicted or acquitted, Section 300(1) shall not be
applicable.
25. Section 300 of the CrPC bars the trial of a person
not only for the same offence but also for any other
offence on the same facts, vide Thakur Ram vs. State of
Bihar AIR 1966 SC 911.
Article 20 of the Constitution:
26. Under clause (2) of Article 20, no person shall be
prosecuted and punished for the same offence more
than once. Article 20(2) of the Constitution of India
incorporates within its scope, the plea of autrefois
convict, meaning, previously convicted as known to
British jurisprudence, or the plea of double jeopardy
known to the American Constitution. However, the said
concepts are circumscribed in Article 20(2) which
provides that there should be not only a prosecution
but also punishment in the first instance in order to
operate as a bar to a second prosecution and
punishment for the same offence. On a plain reading
the of sub clause (2) of Article 20, it is clear that the
said provision bars a second prosecution only where
the accused has been both prosecuted and punished
for the same offence previously vide S.A. Venkataraman
vs. Union of India AIR 1954 SC 375 (“S.A.
Venkataraman”). But this clause does not bar
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subsequent trial if the ingredients of the offences in the
previous and subsequent trials are distinct. In Maqbool
Hussain vs. State of Bombay AIR 1953 SC 325, this
Court has held that clause (2) is not applicable unless
the person has been both prosecuted and punished.
27. There are three conditions for the application of the
clause. Firstly, there must have been previous
proceeding before a court of law or a judicial tribunal of
competent jurisdiction in which the person must have
been 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. In other words, the clause
has no application when the subsequent proceeding is
a mere continuation of the previous proceeding, for
example, where an appeal arises out of such acquittal
or conviction. In order to sustain a plea of double
jeopardy, it must be shown that all the aforesaid
conditions of this clause are satisfied, vide S.A.
Venkataraman.
28. What is to be noted here is that both these
provisions, i.e., Section 300 of the CrPC and Article 20
of the Constitution of India use the term ‘same offence’.
Before dealing with the issue at hand, it is necessary to
understand what the term ‘same offence’ means and
includes. The term ‘same offence’ in simple language
means, where the offences are not distinct and the
ingredients of the offences are identical. Where there
are two distinct offences made up of different
ingredients, the embargo under Article 20 of the
Constitution of India, has no application, though the
offences may have some overlapping features. The
crucial requirement of Article 20 is that the offences are
the same and identical in all respects, vide State (N.C.T.
of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.
29. The concept of double jeopardy can also be
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understood in terms of Article 21 of the Constitution of
India which states that no person shall be deprived of
his life or personal liberty except according to
procedure established by law. ‘Life’ under Article 21 of
the Constitution is not merely the physical act of
breathing. It does not connote mere animal existence or
continued drudgery through life. It has a much wider
connotation; it includes the right to live with human
dignity. In the celebrated judgment in the case of
Maneka Gandhi vs. Union of India 1978 AIR 597, this
Court gave a new dimension to Article 21, wherein it
stated that the right to live includes within its ambit the
right to live with dignity. Under the umbrella of Article
21, various rights like right to free legal aid, right to
speedy trial, right to fair trial, etc. have been included.
Similarly, protection against double jeopardy is also
included under the scope of Article 21 of the
Constitution of India. Prosecuting a person for the same
offence in same series of facts, for which he has
previously either been acquitted or has been convicted
and undergone the punishment, affects the person’s
right to live with dignity.”
11. Useful reference can also be taken from the judgement of
Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and
another, (2012) 7 SCC 621, whereby the Hon’ble Apex Court
examined the series of previous decision on plea of autrefois
acquit and autrefois convict. In para 33, the Hon’ble Apex
Court held as under:-
“33. In view of the above, the law is well settled that in
order to attract the provisions of Art. 20(2) of the
Constitution i.e. doctrine of autrefois acquit or Sec. 300
Cr.P.C. or Sec. 71 IPC or Sec. 26 of General Clauses
Act, ingredients of the offences in the earlier case as
well as in the latter case must be the same and not
different. The test to ascertain whether the two offences
are the same is not identity of the allegations but the
identity of the ingredients of the offence. Motive forPage 15 of 18
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committing offence cannot be termed as ingredients of
offences to determine the issue. The plea of autrefois
acquit is not proved unless it is shown that the
judgment of acquittal in the previous charge necessarily
involves an acquittal of the latter charge.”
12. Before this court, the petitioner has vehemently contended
that since he has admitted guilt in the offence punishable under
section 124 of Gujarat Police Act, which was registered as
Criminal Case No. 315 of 2013 and had been convicted, order of
which is in force, filing of second FIR under the provisions of the
Essential Commodities Act on the same fact being Criminal Case
No. 323 2014 and trying the petitioner second time for the same
fact / offence is against the principle of double jeopardy.
13. Notably, when the premises of the petitioner was raided, he
was in exclusive possession of petrol, diesel and kerosene for
which he could not offer satisfactory explanation and therefore
offence u/s 124 of the Gujarat Police Act was registered against
the petitioner. However, subsequently, another offence was also
found, as the petitioner has violated the provision of Essential
Commodities Act as well as the Motor Spirit and High Speed
Diesel (Regulation of Supply, Distribution and Prevention of
Malpractices) Order and the Gujarat Essential Articles Dealers
(Regulation) Order, 1977. Facts of both the cases may be similar,
but both the offences are different and distinct having different
consequence and thus, the petitioner cannot claim that once he
has been convicted in the first offence, he cannot be tried for
another offence arise from the said fact. Trying him in second
offence is amount to double jeopardy. Initiation of both the
offences and their ingredients are separate and distinct and
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undefined
therefore, they can be legitimately tried. The principle of double
jeopardy, by no reason, is attracted in the present case. The
term “same offence” does not attract in the present case. As
stated above, when two different and distinct offences are made
up on different ingredients, embargo under Article 20 of the
Constitution of India has no application, though both the
offences have overlapping features.
14. What also can be noticed that the accused has not been
tried in first offence, but he went to the court in the first offence
and admitted his guilt and upon such, he was convicted and
punished knowing fully well that he has committed the offence,
even under the provisions of the Essential Commodities Act,
however, to escape of facing trial in the offence under the
Essential Commodities Act, the petitioner purposefully admitted
his guilt in first offence having lesser punishment or rather
punishment limited to fine only. A person having such feigned
mindset cannot claim that his second and subsequent offence
cannot be tried as it attracts the embargo of Article 20 of the
Constitution of India.
15. In Chandi Puliya (supra), the Hon’ble Apex Court while
clarifying position of law, held that plea of double jeopardy
should be in consistent with the stage of discharge under section
227 of the CRPC or a stage prior to framing up the charge u/s
228 of the CRPC. Undisputedly, in case on hand, an application
was filed before the learned trial Court at the stage where charge
was already framed and three witnesses have already been
examined. In the aforesaid situation, the petition’s claim is bereft
of merit.
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16. Perusal of the concurrent findings arrived at by both the
courts below, I see no palpable illegality or gross error leading to
miscarriage of justice, which could permit the court to exercise
extraordinary and supervisory jurisdiction under Article 227 of
the Constitution of India.
17. As far as judgment relied upon by learned advocate, Mr.
Rushabh Shah is concerned, they are on different facts and
would not assist the case of the petitioner.
18. For the foregoing reasons, the petition fails and stands
dismissed. Notice discharged. Interim relief, if any, granted
earlier stands vacated.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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