VIGILANCE MANUAL VOLUME III - AP Online

DECISION -16
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(G) Double jeopardy
(i) Offences under sec. 5(2) read with 5(1)(c) of P.C.
Act, 1947 (corresponding to sec. 13(2) read with
13(1)(c) of P.C. Act, 1988) and sec. 409 IPC are
not identical.
(ii) No objection to a trial and conviction under sec.
409 IPC even if accused acquitted for offence under
sec. 5(2) read with 5(1)(c) of P.C. Act, 1947.
(iii) Art. 20 of Constitution of India and sec. 403(1)
Cr.P.C., 1898 (corresponding to sec. 300(1) Cr.P.C.,
1973), have no application.
State of Madhya Pradesh vs. Veereshwar Rao Agnihotri,
AIR 1957 SC 592
The State of Madhya Bharat, which after 1st November 1956
has become merged in the State of Madhya Pradesh, had obtained
special leave to appeal against the judgment and order of acquittal
passed in favour of the respondent, Tax Collector in the Municipal
Committee of Lashkar, by the High Court of Madhya Bharat in two
appeals. The question for decision in the two appeals is how far the
High Court is justified in ordering the acquittal.
The Supreme Court held that the offence of criminal
misconduct punishable under sec. 5(2) of P.C.Act, 1947
(corresponding to sec. 13(2) of P.C. Act, 1988) is not identical in
essence, import and content with an offence under sec. 409 IPC.
The offence of criminal misconduct is a new offence created by that
enactment and it does not repeal by implication or abrogate sec. 409
IPC. There can be no objection to a trial and conviction under sec.
409 IPC even if the accused has been acquitted of an offence under
sec. 5(2) of P.C.Act, 1947.
The Supreme Court further held that where there are two
alternate charges in the same trial, (Penal Code sec. 409 and P.C.
Act sec. 5(2) the fact that the accused is acquitted of one of them,
(Sec. 5(2) P.C.Act), will not prevent the conviction of the other.