IN THE HIGH COURT OF ORISSA AT CUTTACK 

CRLMC No.2240 of 2009 

 …. Petitioners  

Indrajit Sengupta and another 

 Mr. S. K. Dalai, Advocate

-Versus

State of Odisha and others …. Opposite Parties 

Mrs. S. Patnaik, AGA

 CORAM: 

 JUSTICE R.K.PATTANAIK 

DATE OF JUDGMENT: 07.04.2022 

 R.K. Pattanaik, J 

 1. The petitioners have filed the instant application under  Section 482 Cr.P.C. challenging the correctness of the impugned  order of cognizance dated 25th April, 2008 passed in G.R. Case  No.130 of 2007 arising out of Purighat P.S. Case No.21 of 2007  pending in the file of learned S.D.J.M.(Sadar), Cuttack on various  grounds inter alia contending that such a prosecution is in violation

of Article 20 of the Constitution of India, 1950 and also Section  300 Cr.P.C. as they could not have been prosecuted once again for  

the self-same incident which amounts to double jeopardy. 

 2. A prosecution was launched after a written report was  lodged at Purighat P.S. registered under Section(s) 342 and 323  read with 34 I.P.C. with the allegation that OP No.2’s son, namely,  OP No.3, who was working in the house of the petitioners was ill

treated and assaulted. For the alleged occurrence, as contended by  the petitioners, the District Labour Officer (in short ‘DLO’) as well  as IIC, Purighat P.S. took up the matter and in that respect, a

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complaint was filed by the DLO before the court below under  Section 3 and 14 of the Child Labour (Prohibition and Regulation)  Act, 1986 (in short ‘the Act’) and also a written report lodged by  OP No.2 which ultimately led to the submission of chargesheet  under Section(s) 342 and 323 read with 34 I.P.C. and thereafter,  the cognizance was taken of said offences. It is pleaded that  pursuant to the complaint filed by the DLO, order of cognizance  for an offence under Section 14 of the Act, 1986 was passed and  the petitioners were put to trial and later on convicted and  sentenced. As against the above facts, the petitioners further  pleaded that once having been convicted for an offence under 

Section 14 of the Act, 1986, for the same incident and set of facts,  another prosecution under Section(s) 342 and 323 read with 34 

I.P.C. cannot be maintained. 

 3. Heard learned counsel for the petitioners and learned  Additional Government Advocate for OP No.1.  

 4. As it appears from the record, the petitioners have been  convicted in 2.C.C. No.84 of 2007 by a judgment dated 23rd May,  2009 of the learned S.D.J.M. (Sadar), Cuttack directing both of  them to undergo S.I. for a period of six months with a fine of  Rs.10,000/- each and in default to undergo S.I. for a period of one  month and being aggrieved of the conviction, Criminal Appeal  No.28 of 2009 was filed before the Sessions Court. It is further  made to appear that the petitioners in CRLMC No.1827 of 2007  challenged the F.I.R. before this Court which was disposed of by an  order 21st February, 2008 declining to interfere with the  observation that the petitioners may not even be chargesheeted on  completion of investigation. After submission of charge sheet and

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passing of the impugned order dated 25th April, 2008 under  Annexure-5, the petitioners once again approached this Court in  CRLMC No.1187 of 2008 which was, however, stated to have  been withdrawn and disposed of on 7th July, 2009. The petitioners  have questioned the legality of the impugned order i.e. Annexure-5  on the ground that the offences punishable under Section(s) 342  and 323 I.P.C. have not been made out while considering the F.I.R.  and other materials including the charge sheet i.e. Annexure-4. It is  also contended that when the petitioners have already been  convicted by a judgment dated 23rd May, 2009 by the learned  S.D.J.M.(Sadar), Cuttack in 2 C.C. No.84 of 2007 (Annexure-3), 

again they cannot be prosecuted which violates the law envisaged  in Section 300 Cr.P.C. 

 5. In so far as the conviction of the petitioners is concerned, it 

is in respect of an offence punishable under Section 14 of the Act,  1986 and the issue was whether they employed OP No.3 in labour  work in their house in contravention of the provisions of Section 3  thereof and in that respect, the learned S.D.J.M. (Sadar), Cuttack  reached at a conclusion that the alleged offence was made out. In 

other words, the engagement of OP No.3 aged about 13 years as a  caretaker in the house of the petitioners was established by 

considering the evidence produced before the court concerned. 

 6. Learned counsel for the petitioners contends that since  Article 20 of the Constitution of India, 1950 envisages that no  person shall be prosecuted and punished for the same offence more  than once which is a constitutional right guaranteed with a  protection against double jeopardy and in view of Section 300  Cr.P.C., a person once convicted or acquitted, not to be tried for

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the same offence, the learned court below after having failed to  take cognizance of the above law, erred in passing the impugned  order of cognizance dated 25th April, 2008. 

 7. In the instant case, there is no denial to the fact that the  petitioners were proceeded in a complaint filed by the DLO before  the court of learned S.D.J.M. (Sadar), Cuttack which finally ended  in conviction in 2 CC No.84 of 2007 for an offence punishable  under Section 14 of the Act, 1986. It is claimed that the prosecution 

under Sections 342 and 323 read with 34 IPC amounts to double  jeopardy on the ground that for the same incident the petitioners  

have already been tried and convicted. The learned counsel for the  petitioners referred to Section 300 Cr.P.C. and its essential  ingredients besides placing reliance on Article 20(2) of the 

Constitution of India, 1950. 

 8. The rule of double jeopardy is based on the principle that  once a person convicted or acquitted cannot be subjected to a  criminal prosecution for the same offence. The terms ‘autrefois  acquit’ and ‘autrefois convict’ mean previously acquitted and 

previously convicted respectively which have been accepted as  doctrines that govern the field of criminal trials. In fact, Article 20 

of the Constitution of India, 1950 protects in respect of conviction  of offences. Article 20(2) contains the rule against double jeopardy  which enumerates that no person shall be convicted for the same  offence more than once which has in fact been borrowed from the  5th Amendment of the US Constitution. Likewise, the Cr.P.C.  inculcates the principle of autrefois convict as well as autrefois  acquit which has a wider reach under the criminal jurisprudence,

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whereas, Article 20 of the Constitution of India, 1950 outlines  general rule against double jeopardy. 

 9. In Thomas Dana Vrs. State of Punjab reported in AIR  1959 SC 375, it has been held by the Supreme Court that to claim  protection against double jeopardy as envisaged in Article 20(2) of  the Constitution of India, 1950, it is necessary to show that there  was a previous conviction and that the prosecution led to  punishment and the accused is being punished for the same offence  again. In the decision (supra), it was made clear that for the same  offence, person having been convicted cannot be prosecuted again 

for that offence which would amount to double jeopardy. In the  case of Institute of Chartered Accountants Vrs. Vimal Surana

reported decided in SLP Criminal Nos.3411-3412 of 2009 dated 1st December, 2010, the Supreme Court held that a person can be  convicted for the same action under different Acts as apply to the  offences wherein prosecution under Sections 419 and 420 IPC was  challenged on the ground that the accused had also been subjected  to criminal action under Sections 24 and 26 of the Chartered  

Accountants Act. Similarly, in another case of the Supreme Court in  State of Maharashtra Vrs. Sayyed Hassan Subhan reported in (2019) 

18 SCC 145, it was held and observed that complaints under the  Foods Safety and Standards Act, 2006 and Sections 188 and 272  IPC to be maintainable so long as the ingredients of the offences  stood satisfied. 

 10. The expression ‘same offence’ appearing in Section 300  Cr.P.C. read with Article 20(2) of the Constitution of India means  that the offence for which the accused has been tried and the

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offence for which he is again being tried must be identical. The  subsequent trial is bared only if the ingredients of the two offences  are identical and not when they are different even though may  have resulted from the commission or omission arising out of the  same set of facts. In the instant case, the petitioners were subjected  to criminal prosecution for an offence under Section 14 of the Act,  1986 and convicted thereunder for having engaged O.P.No.3 by  then aged about 13 years in labour work and for having  contravened Section 3 of the said Act for employing a child. The  offence under the Act, 1986 is quite different and distinct from the  IPC offences. It is not that the offences under the Special Act and 

IPC to be identical for which the petitioners can claim immunity  against the criminal prosecution in G.R. Case No.130 of 2007. The 

issue which was before the court below in the other case for  determination was whether the petitioners had employed  O.P.No.3, a child below 14 years of age in their house as a  domestic worker or servant in contravention of Section 3 of the  Act, 1986 which is made punishable under Section 14 of the said  Act and finally, convicted them for having violated the labour law.  

In so far the proceeding in G.R. Case No.130 of 2007 is concerned,  it is altogether an independent action and for offences which are  

dissimilar to the offence under Act, 1986. In view of the aforesaid  discussion and being conscious of the settled position of law, the  Court is of the considered view that the principle of double  jeopardy does not apply to the present case and therefore, the  learned court below did not commit any wrong or legal error in  taking cognizance of the offences punishable under Sections 323  and 342 read with 34 IPC.

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 11. Accordingly, it is ordered. 

 12. In the result, application under Section 482 Cr.P.C. stands  dismissed. 

(R.K.Pattanaik) 

 Judge

TUDU

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