Telangana High Court
Syed Ayub vs The State Of Telangana on 25 April, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
CRIMINAL APPEAL No.300 of 2025
Mr. P. Krishna Prakash, learned counsel appearing for the appellant.
Sri M.Ramchandra Reddy, the learned Additional Public Prosecutor appearing for the respondent-
State.
JUDGMENT:
(Per Hon’ble Justice Moushumi Bhattacharya)
1. The Appeal arises out of a judgment dated 28.01.2025
passed by the Principal District and Sessions Judge, Sangareddy
in S.C.No.182 of 2012 sentencing the appellant to life
imprisonment for an offence punishable under section 302 of The
Indian Penal Code, 1860 (‘IPC‘) and rigorous imprisonment for 6
months for the offence under section 379 of the IPC. The
appellant was the Accused No.2 before the Trial Court.
2. The Appeal was admitted on 06.03.2025. The Trial Court
Records were called for and are before us.
3. Learned counsel appearing for the appellant/A.2 prays for
setting aside of the impugned judgment on a preliminary ground
that the impugned judgment warrants interference.
4. We have heard learned counsel appearing for the appellant
as well as the learned Additional Public Prosecutor on the
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preliminary issue of whether the impugned judgment warrants
interference.
5. It is necessary to set out the factual background of the
matter to appreciate the preliminary issue.
Background
6. The appellant/A.2 along with A.1 were earlier tried by the
learned Principal Sessions Judge, Medak at Sangareddy in
Sessions Case No.182 of 2012, for offences under sections 302
and 379 of the I.P.C. By a judgment dated 16.07.2012, the
appellant/A.2 was acquitted of both the charges under sections
302 and 379 of the I.P.C but was convicted for the offence under
section 411 I.P.C. for dishonestly receiving stolen property. The
appellant was accordingly sentenced to undergo Rigorous
Imprisonment for 3 years and to pay a fine of Rs.5,000/- and to
undergo simple imprisonment for three months in default of
payment of fine. The judgment dated 16.07.2012 forms part of the
Records.
7. The appellant/A.2 preferred Criminal Appeal No.737 of 2012
aggrieved by the judgment dated 16.07.2012. The Criminal
Appeal was heard by a learned Single Judge of this Court and by a
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judgment dated 28.06.2024 the matter was remanded to the Trial
Court for deciding the matter afresh with regard to the offences
under sections 302 and 379 of the I.P.C. The appellant was
directed to be put on notice.
8. On remand, the Trial Court, by the impugned judgment
dated 28.01.2025 convicted the appellant/A.2 and A.1 for the
offences under sections 302 and 379 of the I.P.C. based on the
same evidence which was led in 2012. The judgment dated
28.01.2025 forms the subject matter of the present Appeal. A.2 is
the appellant before us.
Decision
9. The issue before us is whether the decision of the learned
Single Judge attracts section 300 (1) of The Code of Criminal
Procedure, 1973, or in the alternative, section 337(1) of The
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) i.e., the bar on
trying a person two times for the same offence after the person is
either convicted or acquitted of such offence.
10. Section 300(1) of the Cr.P.C, section 337(1) of the BNSS and
Article 20(2) of the Constitution of India are set out below:
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Crl.A.No.300 of 2025Section 300(1) of the 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.
Section 337 (1) of the BNSS:
“337. 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 244, or for
which he might have been convicted under sub-section (2)
thereof.”
Article 20(2) of the Constitution of India:
“(2) No person shall be prosecuted and punished for the same
offence more than once.”
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11. The statutory embargo on a second trial of a person for the
same offence, while the first conviction or acquittal remains in
force, is also one of the fundamental rights protected under Article
20(2) of the Constitution of India, which prohibits a person from
being prosecuted and punished for the same offence more than
once. The Constitutional guarantee in Article 20(2) finds echoes
across the world. The Fifth Amendment of the American
Constitution enunciates the principle that no person shall be twice
put in jeopardy of life or limb. The principle is also part of the
Rule of English Law that a person must not be put in jeopardy
twice for the same offence.
The Judgment dated 28.06.2024
12. The judgment dated 28.06.2024 passed by the learned
Single Judge in Criminal Appeal No.737 of 2012 warrants
interference despite the fact that the said judgment is not the
subject matter of the present Appeal. The judgment dated
28.06.2024 raises questions which are worthy of adjudication.
13. The Appeal before the learned Single Judge related only to
the conviction of the appellant/A.2 for the offence under section
411 of the I.P.C. The earlier judgment of the Trial Court dated
16.07.2012 (which was challenged by the appellant before the
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learned Single Judge) records that the appellant/A.2 was
acquitted of the offences under sections 302 and 379 of the I.P.C.
but was convicted for the offence under section 411 of the I.P.C
and was sentenced to rigorous imprisonment for 3 years. The
learned Single Judge framed an issue as to whether the impugned
judgment convicting the appellant for dishonestly receiving stolen
property was liable to be set aside. The learned Single Judge
proceeded to engage in an elaborate discussion of the facts before
the Trial Court and directed the Trial Court to reconsider the
matter afresh with regard to the appellant’s acquittal of the
offences under sections 302 and 379 of the I.P.C. The Trial Court
was however advised to remain uninfluenced by the Court’s
observations notwithstanding the detailed discussion in the
judgment given by the learned Single Judge on the issue of
acquittal of the offences under sections 302 and 379 of the I.P.C.
14. The last paragraph of the judgment dated 28.06.2024 is set
out below:
“39. Accordingly, this Criminal Appeal is disposed of directing the
learned trial Court to reconsider the matter afresh with regard to
offences under Sections 302 and 379 of IPC, independently, by duly
putting both accused on notice, in accordance with law, within three
months from the date of receipt of copy of this Judgment. It is made
clear that the learned trial Court shall not be influenced in any manner
by the observations made in this Judgment.”
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15. It is of crucial importance that the learned Single Judge
remanded the matter to the Trial Court without setting aside the
judgment dated 16.07.2012. Therefore, the appellant’s conviction
and sentence, as imposed in the judgment dated 16.07.2012,
remained in force as of 28.06.2024 (the date of the judgment of
the learned Single Judge) and continued to remain in force till the
impugned judgment dated 28.01.2025, which forms the subject
matter of the present Appeal. The fact that the judgment dated
16.07.2012, which was the subject matter of Criminal Appeal
No.737 of 2012, was not set aside and the matter was simply
remanded to the Trial Court for reconsideration is germane for the
purposes of section 300(1) of the Cr.P.C and section 337(1) of the
BNSS.
The Statutory Implications of the Judgment dated 28.06.2024
16. Although the relevant provisions have already been
extracted above, the statutory import thereof is reiterated for
convenience. Both sections 300(1) of the Cr.P.C and 337(1) of the
BNSS prohibit a person from being tried twice for an offence where
the person has either been convicted or acquitted, while such
conviction/acquittal remains in force. (Underlined for emphasis).
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17. The said provisions apply to the facts of the present case
with full force. First, the appellant was acquitted of the offences of
sections 302 and 379 of the IPC. Therefore, remanding the matter
to the Trial Court for a re-trial of the offences for which the
appellant was acquitted, is directly hit by section 300(1) Cr.P.C
and 337(1) of the BNSS. Second, in the absence of the judgment
of conviction or acquittal being set aside, the acquittal remained in
force as on the date of the impugned judgment dated 28.01.2025,
which forms the subject matter of the present Appeal. Therefore,
the impugned judgment dated 28.01.2025 falls foul of section
300(1) of the Cr.P.C/section 337(1) of the BNSS and is also
contrary to Article 20(2) of the Constitution, which preserves the
fundamental right of a person from being prosecuted and
punished for the same offence more than once.
18. We accordingly find that the appellant has made out a
strong case for interference with the impugned judgment, by
which the appellant was convicted of the offences sections 302
and 379 of the IPC. The appellant had earlier been acquitted of
both these offences by the Trial Court on 16.07.2012.
19. We are not inclined to accept the argument that the
judgment of the learned Single Judge was passed in exercise of the
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power of revision under section 397 read with section 401 of the
Cr.P.C. Section 397 of the Cr.P.C authorises the High Court to
call for and examine the record of any proceeding before any
inferior Criminal Court situated within the jurisdiction of the High
Court for the purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or order, or to the
regularity of the proceedings of the inferior Court. Section 401 of
the Cr.P.C crystallises the High Court’s powers of revision where
the High Court may exercise the discretion conferred on a Court of
Appeal by sections 386, 389, 390 and 391 of the Cr.P.C.
20. Section 386 of the Cr.P.C delineates the powers of the
Appellate Court and clause (b)(i) thereof authorizes the High
Court, in an appeal from a conviction, to order the accused to be
re-tried by a Court of competent jurisdiction subordinate to the
Appellate Court. Section 389 of the Cr.P.C provides for suspension
of sentence pending the Appeal. Section 390 of the Cr.P.C deals
with the arrest of the accused in an appeal from acquittal and
section 391 authorises the Appellate Court to take further
evidence. None of the aforesaid provisions were relevant to the
proceedings before the learned Single Judge in Criminal Appeal
No.737 of 2012 for remanding the matter to the Trial Court.
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21. It is also significant that the re-trial directed by the learned
Single Judge was not related to the conviction of the appellant
under section 411 of the IPC but was against the acquittal of the
accused under sections 302 and 379 of the IPC. Moreover, section
401(2) of the Cr.P.C mandates that no order under section 401
shall be made to the prejudice of the accused unless the accused
was given an opportunity of being heard, either personally or
through a pleader, in his/her defence. Section 401(3) contains an
embargo on the High Court to convert a finding of acquittal into
one of conviction.
22. Even though the learned Single Judge directed the Trial
Court to reconsider the matter with regard to the offences under
sections 302 and 379 of the IPC, the judgment is replete with
observations and findings against the appellant for having wrongly
been acquitted of the charges under sections 302 and 379 of the
IPC. These findings and observations impinge on the protection
granted under section 401 (3) of the Cr.P.C to a person who has
already been acquitted by the Trial Court, safeguarding him/her
from being convicted of the same offence by the High Court.
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Power of the Appellate Court to direct Re-trial
23. The power of the Appellate Court to direct a re-trial in a
criminal case is ordinarily exercised only in exceptional
circumstances unless the Appellate Court is satisfied that the
Court which conducted the trial lacked jurisdiction or that the
trial was vitiated by serious illegalities or irregularities or on
account of misconception of the nature of the proceedings: In
effect, that there had not been any real trial at all. The
justification of exceptional circumstances arises from the fact that
an acquitted person is exposed to a second trial which affords the
prosecutor another opportunity to rectify the infirmities disclosed
in the first trial: Ukha Kolhe Vs. State of Maharashtra 1.
24. In other words, a de novo trial should be ordered by the
Appellate Court only in rare cases, when in the opinion of the
Appellate Court, it is the only indispensible recourse to avert
failure of justice: Mohd. Hussain Vs. State (Govt. of NCT of Delhi) 2.
Needless to say, a conclusion that an investigation or trial was
shoddy or lacked precision must be based on a thorough
examination of the evidence.
1 AIR 1963 SC 1531
2 (2012) 9 SCC 408
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The Underlying Constitutional and Statutory Mandate
25. The maxim “nemo debet bis vexari pro eadem causa” (no
person should be vexed twice for the same offence) embodies the
Rule of common law that no one should be put to peril twice for
the same offence. The position of law, as enunciated by the
Courts, is as under:
(i) There must be a previous proceeding before a Court of
law or a judicial tribunal of competent jurisdiction in
which the person must have been prosecuted;
(ii) The conviction/acquittal in the previous proceeding
must be in force at the time of the second proceeding
in relation to the same offence and the same set of
facts for which the person was prosecuted and
punished in the first proceeding;
(iii) The subsequent proceeding must be a fresh
proceeding where the person is sought to be
prosecuted and punished for the same offence and on
the same set of facts for the second time: T.P.
Gopalakrishnan V. State of Kerala 3.
26. The Supreme Court considered the implications of a de novo
trial in P. Manikandan Vs. Central Bureau of Investigation 4 where
the High Court had acquitted the appellant and directed the CBI
to conduct a de novo investigation on the same facts for the same
3 (2022) 14 SCC 323
4 2024 SCC OnLIne SC 3808
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offence and to proceed against the appellant in accordance with
law. The Supreme Court held that the right enshrined in Article
20(2) of the Constitution was violated and set aside the decision of
the High Court.
27. We also find certain other factors to be of significance
impacting the legality of the judgment dated 28.06.2024.
The Un-answered Questions
28. First, there was no challenge by the State to the judgment
passed by the Trial Court on 16.07.2012 acquitting the appellant
of the offences under sections 302 and 379 of the IPC. Second,
the Appeal before the learned Single Judge (Crl.A.No.737 of 2012)
was confined to the appellant’s conviction under section 411 of the
IPC. Third, there is no reference to the fate of the conviction
under section 411 of the IPC in the order passed by the learned
Single Judge on 28.06.2024. In fact, the concluding part of the
judgment dated 28.06.2024 simply directs the Trial Court to hear
the matter afresh with regard to the acquittal of the appellant in
relation to the offences under sections 302 and 379 of the IPC.
29. The absence of any reference to the appellant’s conviction
under section 411 of the IPC creates ambiguity and leaves room
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for inference as to the effect of the conviction. We may add that
the order passed by the learned Single Judge amounts to a partial
remand leaving the aforesaid questions unanswered.
30. The absence of any conclusion or reference to the
conclusion under section 411 of the I.P.C hence amounts to the
obliteration of that conclusion. It is well settled that the evidence
and record of the previous trial is completely wiped out if a matter
is directed for re-trial: Nasib Singh v. State of Punjab 5.
31. We are unable to agree with the contention of the learned
Additional Public Prosecutor that the learned Single Judge was
entitled to question the acquittal of the appellant by exercising the
revisional powers under sections 397 and 401 of the Cr.P.C. The
order of remand does not reflect the accused being put on notice
before the acquittal was called to question and the remand for a
retrial was ordered for a greater offence. The appellant/A.2 being
put on notice for the re-trial in the Trial Court is not the same as
being put on notice of the abrupt change of direction of the appeal
before the learned Single Judge.
32. It is clear from section 401(2) of the Cr.P.C that no order
under this section shall be made to the prejudice of the accused or
55 (2022) 2 SCC 89
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other person unless he/she has had an opportunity of being heard
either personally or by pleader in his/her own defence.
33. The contention of the Additional Public Prosecutor that the
appellant could have challenged the judgment of the learned
Single Judge is also of little consequence since there can be no
estoppel against law. The issue of the law being overridden can be
taken up at any point of time particularly when the aggrieved
party urges violation of the constitutional mandate.
34. The facts in The State of A.P. v. Thadi Narayana 6
substantially fits with the facts of the present case. The Supreme
Court opined that the learned Single Judge of the Andhra Pradesh
High Court acted without jurisdiction in altering the order of
acquittal passed in favour of the respondent in respect of the
offences under sections 302 and 392 when the learned Single
Judge was dealing with the appeal preferred by the respondent
against her conviction under section 411.
Conclusion
35. An order passed in violation of a constitutional guarantee
and fundamental right along with the law of the land on the
6 AIR 1962 Supreme Court 240
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prohibition of a person being tried twice for the same offence while
the conviction or acquittal remains in force, would upend all that
follows after passing of the order. Therefore, the re-trial of the
appellant for a charge for which the appellant was acquitted by the
first judgment dated 16.07.2012 while the appellant’s acquittal for
the offences under sections 302 and 379 of the IPC remained in
force, would be hit by section 300(1) of the Cr.P.C and section
337(1) of the BNSS. The fundamental right of the appellant under
Article 20(2) of the Constitution would also be irrevocably
impacted. The domino-effect of all subsequent proceedings being
nullified would include the impugned judgment dated 28.01.2025
by which the appellant was convicted of the offences under
sections 302 and 379 of the IPC.
36. The appellant cannot be made to suffer the consequences of
a decision which falls foul of the Constitution and the law of the
land.
37. We are hence persuaded to hold that the impugned
judgment, being in violation of the constitutional guarantee
enshrined in Article 20(2) of the Constitution, should be set aside.
The appellant being re-tried upon a fresh hearing of the matter
goes against all principles of law, justice and equity.
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38. Criminal Appeal No.300 of 2025 is allowed by setting aside
the judgment dated 28.01.2025 passed by the Principal District
and Sessions Judge, Sangareddy, in S.C.No.182 of 2012.
39. The appellant/A.2 shall be set at liberty forthwith. The fine
amount paid by the appellant/A.2 shall be refunded within 7 days
from the date of this judgment.
40. Pending miscellaneous petitions, if any, shall stand closed.
_________________________________
MOUSHUMI BHATTACHARYA, J
_____________________________
B.R.MADHUSUDHAN RAO, J
Date: 25.04.2025.
VA/BMS