R.R. Prasad
1. By invoking extraordinary jurisdiction of this Court entire criminal proceedings of two cases, R.C. case no. 20(A) of 1996 and R.C case no.68(A) of 1996 have been sought to be quashed on the ground that the prosecution in those cases would be barred by Section 300 of the Code of Criminal Procedure as the petitioner has already been convicted for the similar offence in R.C. case no.51(A) of 1996. The facts leading to filing of this case are that in the year 1996 when it was detected that officials and staffs of Animal Husbandry Department in connivance with other accused persons including high ups in the administration have been facilitating withdrawal of money from different treasuries of the erstwhile State of Bihar fraudulently putting State exchequer to a great loss, 64 cases known as Fodder Scam cases were instituted at different places of the State of Bihar. Out of those cases, three cases giving rise to R.C. case no.20(A) of 1996, R.C case no.68(A) of 1996 and R.C case no.51(A) of 1996 which were concerned with fraudulent withdrawal from Chaibasa Treasury were registered under Sections 409, 420, 467, 468, 471, 477, 477A, 201, 511 read with Section 120(B) of the Indian Penal Code and also u/s 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act. The period for which the aforesaid three cases were registered are as follows:
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1. |
R.C. case no.68(A) of 1996 |
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for the period from 10.4.1992 to 31.3.1993 |
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2. |
R.C.case no.51(A) of 1996 |
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for the period from 1.4.1993 to 31.1.1994 |
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3. |
R. C. case no.20(A) of 1996 |
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for the period from 1.4.1994 to 31.1.1995 |
2. In all the aforesaid three cases, the petitioner had never been made named accused in the first information report. However, after investigation of the case, charge sheets were submitted against the petitioner in all three cases imputing charges common in nature that the petitioner while was posted as Deputy Commissioner, Chaibasa was required to manage affairs of the treasury but he never inspected the treasury as required under the Treasury Code and that despite his knowledge of excess fraudulent withdrawal made by co-accused Dr. B.N. Sharma from Chaibasa Treasury, the petitioner did not exercise control over the Treasury to stop misappropriation of the Government fund rather he conspired with other accused and facilitated illegal withdrawal by abusing his position and also by receiving undue pecuniary benefit of one laptop and two printers from the officials and suppliers of the Animal Husbandry Department with only difference that he facilitated fraudulent withdrawals of Rs.38,94,29,433/-from Chaibasa Teasury during the period 1.4.1993 to 31.3.1994, subject matter of R.C. case no. 51(A) of 1996, Rs.37,07,39,743/-for the period 1994-95, subject matter of R.C. case no.20(A) of 1996 and further Rs.37,62,79,883/-during the period 1992-93 subject matter of R.C. case no.68(A) of 1996.
3. Upon submission of the charge sheets, charges were framed in all three cases.
4. In R.C case no.51(A) of 1996, charges which were framed on 19.7.2004 against the petitioner are that the petitioner being posted as Deputy Commissioner, Chaibasa during the period from November, 1992 to July, 1995 by abusing his official position as public servant did not exercise control to stop misappropriation of Government fund from the Chaibasa Treasury.
5. Further it has been charged that the petitioner did not take any step to find out the cause of heavy withdrawal of Rs.50.56 lacs on a single day by the accused Dr. B.N. Sharma and that he obtained undue pecuniary benefit from the co-accused as reward for the services rendered and thereby the petitioner facilitated fraudulent withdrawal of the Government fund to the extent of Rs.38,94,29,433/-during the period 1992-95.
6. More or less similar charges were framed in R.C. case no.20(A) of 1996 on 5.4.2009 that the petitioner being Deputy Commissioner, Chaibasa during the period 1992-95 abused his position as public servant and despite having knowledge of fraudulent activities did not exercise control to stop misappropriation of Government fund from the Chaibasa Treasury. The petitioner was further charged of not taking any step to find out cause of heavy withdrawal of Rs.50.56 lacs on a single day by co-accused Dr. B.N. Sharma and that he obtained undue pecuniary benefit from the co-accused and thus, facilitated fraudulent withdrawal of the Government fund to the extent of Rs.37,07,39,743/-from the Chaibasa Treasury in the year 1994-95.
7. In R.C. case no.68(A) of 1996 charges were framed on 25.4.2005 that the petitioner while was functioning as Deputy Commissioner, Chaibasa, during the period 1992-93 cheated the Government of Bihar and its officials by fraudulently and dishonestly inducing them to deliver Rs.33,13,67,534/- and that by corrupt or illegal means or by otherwise abusing his position as public servant obtained for himself pecuniary advantage or for any other person pecuniary advantage to the extent of Rs.33,13,67,534/-.(However in the charge sheet amount was shown as Rs.37,62,79,883/-).
8. The petitioner on being put to trial was found guilty for various offences in R.C. case no.51(A) of 1996 and was convicted for the offences punishable u/s 120(B) read with Sections 409, 420, 467, 468, 471, 477A of the Indian Penal Code and also u/s 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, vide judgment dated 14.7.2008 and was awarded maximum sentence of rigorous imprisonment for four years and six months for one of the offences, vide order dated 25.7.2008.
9. Being aggrieved with the aforesaid judgment of conviction and order of sentence, Cr.App. (S.J) No.979 of 2008 has been preferred before this Court which is pending for consideration.
10. Since the petitioner has been convicted in one of the cases, this application has been filed for quashing of the entire proceeding of other two cases on the ground that any prosecution for similar offence is barred u/s 300 of the Code of Criminal Procedure.
11. Mr. Abhay Singh, learned Sr. Counsel appearing for the petitioner submitted that in all three cases, allegations against the petitioner are that he misused his official position as Deputy Commissioner, Chaibasa and that he did not take any effective step to check fraudulent excess withdrawal from the Treasury and that the petitioner received illegal gratification from other co-accused persons and thus, he facilitated fraudulent withdrawal of the money from the Chaibasa Treasury and under the circumstances, once the petitioner has been convicted in R.C. case no.51(A) of 1996 on the aforementioned accusations, he cannot be prosecuted again on the same set of allegation, as the subsequent prosecution of the petitioner is in the teeth of Section 300(1) of the Code of Criminal Procedure which postulates the theory of ''autrefois convict and autrefois acquit'' under which one cannot be prosecuted on the same set of facts if he has already been convicted or acquitted by the court of competent jurisdiction. Therefore, entire criminal prosecution of the petitioner in R.C. case no.20(A) of 1996 and R.C. case no.68(A) of 1996 is fit to be quashed.
12. Learned counsel in support of his submission has relied upon decisions rendered in a case of
13. Learned counsel by referring to the judgment passed in R.C. case no.51(A) of 1996 submitted that the learned trial court found the petitioner guilty as he failed to discharge his duties as enshrined in the Treasury Code by not making inspection of the Treasury periodically and therefore, he allowed the suppliers to draw the amount fraudulently in excess of the allotment made for the Department to the extent of Rs.39 crores. The petitioner did it as he had close nexus with other scammesters including suppliers to whom the petitioner put to pecuniary advantage and also to himself by receiving one Laptop and two Printers by corrupt and illegal means. On arriving such finding, the petitioner was convicted for various offences under Sections 120(b) read with Sections 409, 420, 467, 468,471, 477A of the Indian Penal Code and also u/s 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act.
14. It was also pointed out that sum and substance on which the petitioner was found guilty is that the petitioner did not properly manage the affairs of the Chaibasa Treasury purposely facilitating the other accused to draw money fraudulently and in lieu of that, the petitioner obtained pecuniary advantage for himself by receiving one Laptop and two Printers from the Animal Husbandry Department Scam star.
15. Learned counsel by referring to charge sheets submitted in other two cases, namely, R.C case no.20(A) of 1996 and R.C case no.68(A) of 1996 pointed it out that similar are the charges in both the cases where C.B.I by producing witnesses would be required to prove that petitioner did not inspect the Treasury periodically in order to facilitate the suppliers to have smooth withdrawal of the amount so as to have pecuniary gain for them and also for himself by receiving one Laptop and two Printers by corrupt means for which the petitioner has already been convicted and hence, any further prosecution would be hit by Section 300 of the Code of Criminal Procedure and therefore, entire prosecution of R.C. case no.20(A) of 1996 and R.C. case no.68(A) of 1996 are fit to be quashed.
16. Further it was urged that not only the prosecutions are to be quashed but the State has made itself liable to compensate the petitioner who, despite there being statutory bar, is being prosecuted though for similar offence he has already been convicted.
17. Under this situation, the court would be fully justified in imposing heavy cost upon the State as by abusing process of law the petitioner has been put to trial whereby he has suffered a lot and at the same time, court''s time has been wasted. Under the principles of equity justice and good conscience the court should ensure that the legal process is not abused. If it is abused, the court must come down by imposing heavy cost. This proposition has been laid down recently by the Hon''ble Supreme Court in a case of
18. Mr. Khan, learned counsel appearing for the C.B.I submitted that pursuant to the order passed by the Hon''ble Supreme Court, the C.B.I having taken up the investigation of the cases relating to illegal withdrawal for the year 1993-95which had been registered by the District police, re-registered the case as R.C. case no.51(A) of 1996 Pat and R.C. case no.20(A) of 1996 Pat. Since no case has been registered for the illegal withdrawal for the year 1992-93, a fresh case bearing R.C. case no.68(A) of 1996 was registered by the C.B.I and that all the three cases relate to different financial year, R.C. case no.20(A) of 1996 Pat relates to illegal withdrawal of Rs.37.70 crores during the period from 1.4.1994 to 31.3.1995 whereas R.C case no.51(A) of 1996 Pat relates to illegal withdrawal of Rs.39.92 crores during the period from 1.4.1993 to 31.3.1994 and R.C. case no.68(A) of 1996 relates to illegal withdrawal of Rs.37.62 crores during the period from 10.4.1992 to 31.3.1993 and therefore, it cannot be said that the offences are the same as period of occurrence of three cases are quite different and moreover, fake allotment letters, fake supply orders and fake contingency bills and the falsification of books of account in each of the cases are quite different and distinct and in this situation, it can never be said that the petitioner is being prosecuted for the same and similar offences in three different cases.
19. It has further submitted that it is true that some of the materials such as that the petitioner failed to make supervision of the treasury during his tenure resulting into fraudulent withdrawal of the money and that the petitioner facilitated illegal withdrawal by abusing his position and also by receiving undue pecuniary benefit of one laptop and two printers from the officials/suppliers are common but transactions in all three cases related to three different years are quite different. That apart other evidences than the evidence of receiving Laptop and two Printers as pecuniary advantage are also there to prove accusation against the petitioner and hence, the case never falls within the mischief of the provision as contained in Section 300(1) of the Code of Criminal Procedure or 20(2) of the Constitution of India.
20. Having heard learned counsel appearing for the parties and on perusal of the charge sheets submitted in all three cases, namely, R.C. case no.20(A) of 1996, R.C. case no.68(A) of 1996 and R.C case no.51(A) of 1996. It appears that the petitioner has been made accused in all three cases on the accusation that the petitioner did not exercise control over the Treasury to stop misappropriation of Government fund from Chaibasa Treasury, rather he conspired with other accused and facilitated illegal withdrawal of the amount which are different in the aforesaid three cases by abusing his official position whereby he received undue pecuniary benefit of one Laptop and two Printers from officials and suppliers of the Animal Husbandry Department.
21. On the aforesaid fact plea which has been taken on behalf of the petitioner is that the accusation is the same in all three cases and out of those three cases, the petitioner has been convicted in R.C case no.51(A) of 1996 and therefore, further prosecution in the other two case is hit by Section 300 of the Code of Criminal Procedure.
22. On the other hand, the stand which has been taken by the C.B.I is that since the period during which illegal withdrawal was made from Chaibasa Treasury is quite different, the amount which has been withdrawn is also different and the evidences which would be led in other two cases to prove the charges would be quite distinct from the evidences led in the case in which the petitioner was found guilty and was convicted, question of application in the facts and circumstances of the case of Section 300 of the Code of Criminal Procedure does not arise.
23. The well known maxim nemo debet bis vexari pro una et eadem causa embodies the well-established common law rule that no one should be put on peril twice for the same offence. The fundamental right guaranteed under Article 20(2) has its roots in common law maxim nemo debet bis vexari. The said Article embodies a protection against the second trial and conviction for the same offence.
24. At the same time, the provision as contained in Section 300 of the Code of Criminal Procedure does also postulate that no man should be vexed for more than one trial arising out of identical act committed by him when an offence has already been subject to judicial adjudication, whether it ended in conviction or acquittal. The said provision reads as follows:
300 - Person once convicted or acquitted not to be tried for the 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.
25. The principle what is embodied in the aforesaid section is that no one can be tried and convicted for the same offence or even for a different offence but on the same fact. Therefore, the crucial point would be as to whether the petitioner is being tried for the same offence for which he has already been convicted in one of the cases?
26. The Hon''ble Supreme Court had occasion to examine the characteristics of the clause ''same offence'' appearing in Section 300 of the Code of Criminal Procedure in a case of
13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for ''the same offence''. The crucial requirement therefore for attracting the article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.
Again in paragraph 16 it was observed as follows:
16. the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged.
27. Thus, what emerges out is that to ascertain whether two offences are the same or not test would not be the identity of the allegations but the identity of the ingredients of the offences.
28. Subsequently, the Hon''ble Supreme Court in a case of
It is thus clear that same facts may give rise to different prosecution and punishment and in such an event the protection afforded by Article 20(2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence.
29. Further their Lordships by placing reliance on a decision of the Supreme Court of the United States was pleased to hold that test of identity of offences is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offence where two are defined by the statutes.
30. Here in the instant case, the question which has cropped up is not that the same facts constitute two different offences under different statutes, rather the question is as to whether the offences for which the petitioner was tried and convicted and the offences for which he is being prosecuted in two cases are identical or not? In other words, ingredients of the offences in all three cases are the same or are totally different and further whether the same evidence is required to sustain them?
31. It has already been noticed from the charge sheet submitted in the aforesaid three cases that the petitioner is being prosecuted in two cases on the accusations which were also there in the case in which the petitioner has been convicted. Those accusations are (i) the petitioner did not exercise control over the Treasury to stop misappropriation of the Government fund from Chaibasa Treasury, rather he in conspiracy with other accused facilitated fraudulent withdrawal of different amounts for the period from 1.4.1993 to 31.3.1994 (R.C case no.51(A) of 1996), for the period from 1.4.1994 to 31.1.1995 (R.C case no. 20(A) of 1996) and further for the period from 10.4.1992 to 31.3.1993 [R.C. case no.68(A) of 1996] by abusing his official position and (ii) in lieu of that the petitioner received undue pecuniary benefit of one Laptop and two Printers from the officials and suppliers of the Animal Husbandry Department.
32. On the aforesaid two accusations, the prosecution adduced evidences in R.C. case no. 51(A) of 1996 which accusation according to learned trial court was found proved and hence, recorded his conviction in R.C. case no.51(A) of 1996.
33. Since the accusations/ingredients are the same in other two cases, the prosecution is required to sustain them by adducing same evidences, though the prosecution in other two cases may have come with any additional evidence and the period of charge may be different but the basic evidences would be the same which had been led in R.C case no.51(A) of 1996. Therefore, there has been no hesitation in holding that offences in all three cases are identical/same.
34. In such situation, the petitioner having been convicted in one of the cases, any further prosecution in other two cases would be barred under Article 20(2) of the Constitution of India and also u/s 300 of the Code of Criminal Procedure.
35. Accordingly, entire criminal prosecutions of R.C. case no.20(A) of 1996 and R.C. case no.68(A) of 1996 are quashed so far it relate to the petitioner.
36. So far issue relating to imposition of cost is concerned, there may not be any other view than that the court while rendering justice must adopt a pragmatic approach in imposing cost and awarding compensation in appropriate cases in order to discourage dishonest litigation and the court would be fully justified even imposing punitive cost where legal process has been abused. But the question is as to whether the prosecution of the petitioner amounts to gross abuse of the process of law.
37. It has already been noted that the C.B.I under the order of the Hon''ble Supreme Court took over the charges of two cases which had already been instituted for fraudulent withdrawal of the huge amount from the Chaibasa Treasury with respect to financial year 1993-94, 1994-95. However, with respect to fraudulent withdrawal of the money from the said Treasury for the financial year 1992-93, a separate case was registered. This suggests that right from the beginning the C.B.I was under the notion that fraudulent withdrawal for different financial years make out a distinct case. Therefore, we cannot put the case under the category of unscrupulous litigation. Under the circumstances, prayer made for imposition of heavy cost seems to be unreasonable. In the result, this application is allowed. No order as to cost.
