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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 782 OF 2007
Monica Bedi ...Appellant
Versus
State of A.P. ...Respondent
WITH
CRIMINAL APPEAL NO. 784 OF 2007
Shaik Abdul Sattar ...Appellant
Versus
State of A.P. ...Respondent
WITH
CRIMINAL APPEAL NO. 783 OF 2007
D. Gokari Saheb ...Appellant
Versus
State of A.P. ...Respondent
WITH
CRIMINAL APPEAL NO. 1357 OF 2007
Mohd. Yunis ...Appellant
Versus
2
State of A.P. ...Respondent
JUDGMENT
B. Sudershan Reddy, J :
1. These criminal appeals which are to be disposed of by a
common order are directed against the common judgment of
the High Court whereunder the High Court confirmed the
conviction of the appellants under Section 120-B, 419 and
420 IPC and other provisions including under Section 13
(1) (d) read with 13 (2) of the Prevention of Corruption Act.
We shall later notice in detail the conviction and sentence as
awarded by the courts below.
2. The Central Bureau of Investigation, SPE, Hyderabad,
laid charge sheet against altogether 10 accused persons
before the Special Judge for C.B.I. cases, Hyderabad in
which Abu Salem Abdul Qayoom Ansari @ Abu Salem(A-1),
Sameera Jumani w/o Abu Salem(A-2), Monica Bedi (A-3),
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Chamundi Abdul Hameed (A-6) and Faizan Ahmed Sultan
(A-10) were shown as absconders. The learned Special
Judge took the charge sheet on file as C.C. No. 3 of 2005
and issued non-bailable warrants against A-1, A-2, A-3, A-6
and A-10. Case against A-1, A-2, A-6 and A-10 came to be
separated and case proceeded against A-3, A-4, A-5, A-7, A-
8 and A-9.
3. The learned Special Judge upon consideration of the
material made available framed the following charges
against the accused persons:
i) for the offence under Section 120-B IPC against A-3 to
A-5, A-7 to A-9;
ii) for the offence under Section 419 IPC against A-3;
iii) for the offence under Section 419 r/w 109 IPC against
A-4, A-5 and A-7 to A-9;
iv) for the offence under Section 468 IPC against A-5;
v) for the offence under Section 420 IPC against A-8;
vi) for the offence under Section 468 IPC against A-7;
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vii) for the offence under Section 13 (1) (d) r/w 13(2) of
the Prevention of Corruption Act against A-4, A-5, A-7
and A-8;
viii) for the offence under Section 12 of the Passports Act,
1967 against A-3;
ix) for the offence under Section 420 IPC against A-3;
x) for the offence under Section 420 r/w 109 IPC against
A-4, A-5, A-7 to A-9.
4. The prosecution in order to substantiate the charges
examined altogether 38 witnesses and proved 79
documents. Exhibit D-1 to Exhibit D-4 were marked on
behalf of the defence.
5. The learned trial judge upon appreciation of the
evidence and material available on record found Monika Bedi
(A-3 ) guilty of the offences punishable under Sections 120-
B, 419 and 420 IPC but acquitted of the charge under
Section 12 of the Passports Act, 1967; Shaik Abdul Sattar
5
(A-5) guilty of the offences under Sections 120-B, 419 r/w
109, 420 r/w 109, 468 IPC and Sections 13(1) (d) r/w 13
(2) of the Prevention of Corruption Act; Mohammed Yunis
(A-7) guilty of the offence under Section 468 IPC and D.
Gokari Saheb (A-8) guilty of the offences under Section
120B, 420, 419 r/w 109 IPC, 420 r/w 109 IPC and under
Sections 13 (1) (d) r/w 13 (2) of the Prevention of
Corruption Act. A-3 was accordingly sentenced to suffer
rigorous imprisonment for three years and to pay a fine of
Rs. 500/-, in default, to suffer simple imprisonment for one
month for the offence under Section 120-B IPC; rigorous
imprisonment for five years and to pay a fine of Rs. 1,000/-
in default, to suffer simple imprisonment for one month for
the offence under Section 420 IPC; rigorous imprisonment
for three years and to pay a fine of Rs. 500/-, in default, to
suffer simple imprisonment for one month and for the
offence under Section 419 IPC; A-5 to suffer rigorous
imprisonment for three years and to pay a fine of Rs. 500/-,
in default, to suffer simple imprisonment for one month for
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the offence under Section 120-B IPC; rigorous imprisonment
for three years and to pay a fine of Rs. 500/-, in default, to
suffer simple imprisonment for one month for the offence
under Section 419 r/w 109 IPC; rigorous imprisonment for
three years and to pay a fine of Rs. 500/-, in default, to
suffer simple imprisonment for one month for the offence
under Section 420 r/w 109 IPC; rigorous imprisonment for
three years and to pay a fine of Rs. 500/-, in default, to
suffer simple imprisonment for one month for the offence
under Section 468 IPC, and rigorous imprisonment for one
year and to pay a fine of Rs. 500/-, in default, to suffer
simple imprisonment for one month for the offence under
Sections 13 (1) (d) r/w 13 (2) of the Prevention of
Corruption Act. A-7 to suffer rigorous imprisonment for three
years and to pay a fine of Rs. 500/-, in default, to suffer
simple imprisonment for one month for the offence under
Section 468 IPC; A-8 to suffer rigorous imprisonment for
three years and to pay a fine of Rs. 500/-, in default, to
suffer simple imprisonment for one month for the offence
7
under Section 120-B IPC; rigorous imprisonment for three
years and to pay a fine of Rs. 500/-, in default, to suffer
simple imprisonment for one month for the offence under
Section 419 r/w 109 IPC; rigorous imprisonment for three
years and to pay a fine of Rs. 500/-, in default, to suffer
simple imprisonment for one month for the offence under
Section 420 r/w 109 IPC; rigorous imprisonment for three
years and to pay a fine of Rs. 500/-, in default, to suffer
simple imprisonment for one month for the offence under
Section 420 IPC and rigorous imprisonment for one year and
to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for one month for the offence under Sections
13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. All
the substantive sentences were directed to run concurrently.
6. On appeal the High Court of Andhra Pradesh upon re-
appreciation of evidence available on record confirmed the
conviction of A-3 for the offences punishable under Sections
120-B, 419 and 420 IPC but reduced the sentence from
three years rigorous imprisonment to two years rigorous
8
imprisonment for the offence punishable under Section 120B
IPC, from five years rigorous imprisonment to three years
rigorous imprisonment for the offence punishable under
Section 420 IPC and from three years rigorous
imprisonment to two years rigorous imprisonment for the
offence punishable under Section 419 IPC while maintaining
the fine imposed by the trial court. The High Court also
confirmed the conviction of A-5 under each count but
reduced the quantum of imprisonment from three years to
one year for offences under each count under Sections 120-
B, 419 r/w 109, 420 r/w 109, 468 IPC. However, his
conviction and sentence imposed for the offences punishable
under Section 13 (1) (d) read with 13 (2) of the Prevention
of Corruption Act was confirmed. That so far as A-7 is
concerned the High Court while partly allowing the appeal
modified the conviction from Section 468 IPC to that of one
under Section 465 IPC and accordingly sentenced to suffer
rigorous imprisonment for six months and to pay a fine of
Rs. 500/-, in default, to suffer simple imprisonment for three
9
months. That so far as A-8 is concerned the High Court
confirmed his conviction under all counts but reduced the
quantum of imprisonment from three years to one year for
offences under each count under Section 120-B, 420, 419
r/w 109, 420 r/w 109, 468 IPC. However, his conviction and
sentence imposed for the offences punishable under Section
13(1) (d) r/w 13 (2) of the Prevention of Corruption Act was
confirmed. Hence, these appeals.
Case of Prosecution:
7. In order to consider as to whether the High Court
committed any error in convicting and sentencing the
appellants as noted herein above, it may be just and
necessary to briefly notice the case of the prosecution. The
allegation against Accused No. 3 (appellant in Criminal
Appeal No. 782/2007) is that she obtained a second
passport in the assumed name of Sana Malik Kamal from the
Regional Passport Office, Secunderabad by submitting false
documents like residence certificate, educational certificate
10
with the help of A-4 to A-9. She used the passport to travel
Lisbon, Portugal. The owner of M/s. Faizan Enterprises,
Mumbai (A-10) is involved in the business of recruiting
people for jobs in foreign countries. He gave 10 passport
size photographs of A-1 to A-3 and fake names and
documents to A-9 to secure passports falsely showing them
as residents of Kurnool in the State of Andhra Pradesh. A-9
has relatives in Kurnool. He visited Kurnool in the month of
March, 2001 and entrusted the work of securing passports of
A-1 to A-3, to A-6 an unauthorized passport agent. At the
instance of A-6, A-7 Mohammed Yunis, Mandal Revenue
Inspector of Mandal Revenue Office, Kurnool issued a false
residential certificates in the assumed names intended for
the benefit of A-1 to A-3. A-6 procured fake transfer
certificates purported to have been issued by the
Headmaster, Zila Parishad High Court, Peddapadu, Kurnool
District in the name of Ramil Kamil Malik and two fake
memorandum of marks sheets in the names of Neha Asif
Jafari and Sana Malik, purported to have been issued by the
11
Headmaster, Higher Elementary School, Kurnool, as a proof
in support of date of birth. One Abdul Gaffar (PW-1) filled
up three passport applications of A-1 to A-3 at the instance
of A-6 and they were accordingly submitted in the Regional
Passport Office, Secunderabad. The authorities accordingly
sent the particulars mentioned in the forms to the office of
Superintendent of Police, Kurnool which were received in the
office on 16.5.2001 vide exhibit P-28 covering letter. A-5
(appellant in Criminal Appeal No. 784/07) at the relevant
time was working as Writer-Head Constable in special
branch. He submitted fake verification reports along with
statements of six persons in support of character and
conduct of A-1 to A-3 by portraying them as if they were the
neighbours of A-1 to A-3. On receipt of reports, A-4
despatched them to Regional Passport Office, Secunderabad.
It is on the basis of these reports, passports were
accordingly issued to A-1 to A-3 in their assumed names and
they were despatched by speed post to their respective
address at Kurnool as indicated in the passport
12
applications. The passports were received at the Head Post
Office, Kurnool through speed post. On 23.8.2001 two speed
post articles addressed to the assumed names of A-2 and A-
3 were entrusted to PW-11 Babu Miah, a postman of Beat 2,
for delivery of the same to the addressees. A-8 (D. Gokari
Saheb appellant in criminal appeal no. 783/07) Postman,
Head Post Office, Kurnool, approached PW-11 Babu Miah
and collected the two speed post articles by giving his
acknowledgement on the delivery slip list falsely
representing that he knew the addresses and he would
personally deliver the articles. On 27.8.2001 another speed
post article containing passport in the assumed name of A-1
was entrusted to A-8 for delivery who in turn delivered it to
one Aslam Khan, Cashier of Hotel Elite, Kurnool where A-6
was also working. A-6 sent two covers to A-9 on 23.8.2001
and 27.8.2001 in courier service.
8. We shall notice further details only so far as the
appellants before us are concerned. Exhibit P1 is the index
card of Sana Malik Kamal. ( assumed name for Monika
13
Bedi). PW-1 is the author of exhibit P1. PW-1 filled up
exhibit P1 at the request of C.A. Hameed (A-6). PW-4 is the
Superintendent in the Regional Passport Office,
Secunderabad. He speaks of issuance of the passports in
pursuance of passport application in the name of Sana
Malik. PW-5 P. Krishna Mohan Reddy was the Mandal
Revenue Officer, Kurnool Mandal who issued residence
certificate dated 9.4.2001 in the name of Sana Malik Kamal
based on false verification reports submitted by A-7
Mohammad Yunis. That as per exhibit P9 residence
certificate, Sana Malik Kamal (assumed name of Monica
Bedi) is stated to be residing at Babu Gounda Street,
Kurnool. PW-6 at the relevant time was working as Deputy
Educational Officer, Nandyal, Kurnool District who stated
that there was no school by name of Hanuman Higher
Elementary School, Kurnool wherein Sana Malik Kamal was
alleged to have studied. PW-7 M. Lakshminarayana at the
relevant time was the Junior Assistant in the District Police
Office, Kurnool and he speaks of receiving applications for
14
verification of contents therein. According to him, A-4 ( G.
Srinivas) who attended to passport inquiries, received the
passport application of Sana Malik Kamal. After receipt of
exhibit P15 enquiry report along with exhibits P16 and P17
statements submitted by A-5 S.A. Sattar, A-4 prepared the
relevant report and forwarded the same to the Regional
Passport Office, Secunderabad. Exhibit P18 is the letter
addressed by the Superintendent of Police to the Regional
Passport Office, Secunderabad reporting no objection for the
grant of passport to the applicant. Rest of evidence relates
to handing over of speed post articles relating to Babu Miah
as per the instructions of the Head Post Master, Kurnool
from whom A-8 Gokari Saheb took the speed post articles
from him for being delivered to the addressees. PW-13 is
the owner of the residential apartment wherein Monica Bedi
(A-3) is alleged to have resided as tenant during the years
1995-1997. Rest of the details are not required to be
noticed.
15
9. The learned Special judge for C.B.I. on a careful and
meticulous appreciation of the evidence and material made
available on record convicted the appellants as noted herein
above. The High Court on re-appreciation of the evidence
confirmed the conviction but modified the sentence as noted
herein above.
Submissions:
10. Now we shall proceed to consider the submissions
made by the learned senior counsel Shri K.T.S. Tulsi
appearing on behalf of the appellant - Monica Bedi (A-3).
The learned senior counsel submitted that the appellant has
been tried and convicted by a competent court of jurisdiction
at Lisbon for being in possession of fake passport and,
therefore, her trial and conviction for possessing the same
passport before the C.B.I. Court at Hyderabad amounts to
double jeopardy and in violation of Article 20(2) of the
Constitution of India and as well under Section 300 Cr.P.C.
The learned senior counsel further submitted that there is no
16
evidence of appellant's involvement in any of offence
whatsoever. His further submission was that the appellant
has been denied the benefit of Section 428 of the Code of
Criminal Procedure, in as much as she has neither been
given the benefit of the period of sentence undergone by her
in Portugal nor has she been given the benefit of the
complete period pursuant to sentence in Portugal i.e. after
18th September, 2004, which she is legally entitled to.
11. We have also heard the learned counsel appearing on
behalf of Shaik Abdul Sattar (A-5), Mohd. Yunis (A-7) and D.
Gokari Saheb (A-8).
12. Shri P.P. Malhotra, learned Additional Solicitor General
and Shri I. Venkata Narayana, learned senior counsel
supported the impugned judgment. Both of them have
submitted that Article 20 (2) has no application whatsoever
to the facts on hand.
Double Jeopardy
17
13. Now we shall take up the first contention of Shri Tulsi
as to whether the appellant's guaranteed fundamental right
under Article 20 (2) has been infringed? Article 20 (2) of
the Constitution provides that no person shall be prosecuted
and punished for the same offence more than once.
14. Article 20 (2) embodies a protection against a second
trial and conviction for the same offence. The fundamental
right guaranteed is the manifestation of a long struggle by
the mankind for human rights. A similar guarantee is to be
found in almost all civilised societies governed by rule of
law. The well known maxim `nemo delset bis vexari pro
eadem causa' embodies the well established common law
rule that no one should be put on peril twice for the same
offence. BLACKSTONE referred to this universal maxim of
the common law of England that no man is to be brought
into jeopardy of his life more than once for the same
offence.
18
15. The fundamental right guaranteed under Article 20 (2)
has its roots in common law maxim nemo debet bis vexari -
a man shall not be brought into danger for one and the
same offence more than once. If a person is charged again
for the same offence, he can plead, as a complete defence,
his former conviction, or as it is technically expressed, take
the plea of autrefois convict. This in essence is the common
law principle. The corresponding provision in the American
Constitution is enshrined in that part of the Fifth Amendment
which declares that no person shall be subject for the same
offence to be twice put in jeopardy of life or limb. The
principle has been recognised in the existing law in India and
is enacted in Section 26 of the General Clauses Act, 1897
and Section 300 of the Criminal Procedure Code, 1973. This
was the inspiration and background for incorporating sub-
clause (2) into Article 20 of the Constitution. But the ambit
and content of the guaranteed fundamental right are much
narrower than those of the common law in England or the
doctrine of `double jeopardy' in the American Constitution.
19
16. In Maqbool Hussain vs. The State of Bombay1, this
Court explained the scope of the right guaranteed under
Article 20 (2) and as to what is incorporated in it as "within
its scope the plea of autrefois convict as known to the
British jurisprudence or the plea of double jeopardy as it
known to the American Constitution but circumscribed it by
providing that there should be not only a prosecution but
also a punishment in the first instance in order to operate as
a bar to a second prosecution and punishment for the same
offence." That in order for the protection of Article 20 (2)
to be invoked by a person there must have been a
prosecution and as well as punishment in respect of the
same offence before a court of law of competent jurisdiction
or a tribunal, required by law to decide the matters in
controversy judicially on evidence. That the proceedings
contemplated therein are in the nature of criminal
proceedings before a court of law or a judicial tribunal and
the prosecution in this context would mean an initiation or
1
(1953) SCR 730
20
starting of the proceedings of a criminal nature in
accordance with the procedure prescribed in the statute
which creates the offence and regulates the procedure. This
principle is reiterated in S.A. Venkataraman vs. The
Union of India & Anr.,2 wherein this Court observed that
the words "prosecuted or punished" are not to be taken
distributively so as to mean prosecuted or punished. Both
the factors must co-exist in order that the operation of the
clause may be attracted."
17. What is the meaning of expression used in Article 20
(2) "for the same offence"? What is prohibited under Article
20 (2) is, the second prosecution and conviction must be for
the same offence. If the offences are distinct, there is no
question of the rule as to double jeopardy being applicable.
In Leo Roy Frey vs. Superintendent District Jail,
Amritsar3, petitioners therein were found guilty under
Section 167 (8) of the Sea Customs Act and the goods
recovered from their possession were confiscated and heavy
2
(1954) SCR 1150
3
(1958) SCR 822
21
personal penalties imposed on them by the authority.
Complaints thereafter were lodged by the authorities before
the Additional District Magistrate under Section 120B of the
Indian Penal Code read with provisions of the Foreign
Exchange Regulations Act, 1947 and the Sea Customs Act.
The petitioners approached the Supreme Court for quashing
of the proceedings pending against them in the court of
Magistrate inter alia contending that in view of the
provisions of Article 20 (2) of the Constitution they could not
be prosecuted and punished twice over for the same offence
and the proceedings pending before the Magistrate violated
the protection afforded by Article 20 (2) of the Constitution.
This Court rejected the contention and held that criminal
conspiracy is an offence under Section 120B of the Indian
Penal Code but not so under the Sea Customs Act, and the
petitioners were not and could not be charged with it before
the Collector of Customs. It is an offence separate from the
crime which it may have for its object and is complete even
before the crime is attempted or completed, and even when
22
attempted or completed; it forms no ingredients of such
crime. They are, therefore, quite separate offences. The
Court relied on the view expressed by the United States,
Supreme Court in United States vs. Rabinowith4. In The
State of Bombay vs. S.L. Apte5, this Court laid down the
law stating that if the offences were distinct there is no
question of the rule as to double jeopardy as embodied in
Article 20 (2) of the Constitution being applicable. It was the
case where the accused were sought to be punished for the
offence under Section 105, Insurance Act, after their trial
and conviction for the offence under Section 409, Penal
Code, this Court held that they were not sought to be
punished for the same offence twice but for two distinct
offences constituted or made up of different ingredients and
therefore the bar of Article 20 (2) of the Constitution or
Section 26 of the General Clause Act, 1897, was not
applicable. This Court made it clear that the emphasis is not
on the facts "alleged in the two complaints but rather on the
4
(1915) 238US 78.
5
(1961) 3 SCR 107
23
ingredients which constitute the two offences with which a
person is charged." The ratio of the case is apparent from
the following:
"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 fact 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."
That the test to ascertain is whether two offences are the
same and not the identity of the allegations but the identity
of the ingredients of the offences.
It is thus clear that the same facts may give rise to
different prosecutions 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
24
they did not form the same offence. In Bhagwan Swarup
vs. State of Maharashtra6, the accused was convicted with
regard to a conspiracy to commit criminal breach of trust in
respect of the funds of one Jupiter company. There was
another prosecution against the accused for the conspiracy
to lift the funds of another company, though its object was
to cover the fraud committed in respect of the Jupiter
company. This Court held that the defalcations made in the
Jupiter may afford a motive for new conspiracy, but the two
offences are distinct ones. Some accused may be common
to both of them, "some of the facts proved to establish the
Jupitor conspiracy may also have to be proved to support
the motive for the second conspiracy. The question is
whether that in itself would be sufficient to make the two
conspiracies the one and the same offence. The ingredients
of both the offences are totally different and do not form the
same offence within the meaning of Article 20 (2) of the
Constitution and, therefore, that Article has no relevance."
6
AIR 1965 SC 682
25
18. In State of Rajasthan vs. Hat Singh & Ors.7, this
Court held that the Rajasthan Sati (Prevention) Act, 1987
provided for different offences and punishment for
glorification of sati and for violation of prohibitory order
against glorification of sati. They are not the same offences.
While Section 5 of the said Act makes the commission of an
act an offence and punishes the same; the provisions of
Section 6 are preventive in nature and make provision for
punishing contravention of prohibitory order so as to make
the prevention effective. The two offences have different
ingredients. This Court held:
"It is, therefore, concluded that in a given case,
same set of facts may give rise to an offence
punishable under Section 5 and Section 6 (3)
both. There is nothing unconstitutional or
illegal about it."
19. This appears to be the consistent view of the Supreme
Court of the United States. In T.W. Morgan vs. Alfonso J.
Devine @ Ollie Devine8, the U.S. Supreme Court observed
that the court has settled that the test of identity of
7
(2003) 2 SCC 152
8
(1915) 237 U.S. 1153
26
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.
20. In United States vs. Vito Lanza9, it is held that an act
with respect to intoxicating liquor which is denounced as a
crime by both the National and State sovereignties may be
punished under the law of each sovereignty without
infringing the provision of the 5th Amendment to the Federal
Constitution against double jeopardy for the same offence. It
is observed:
"An act denounced as a crime by both National
and State sovereignties is an offence against
the peace and dignity of both, and may be
punished by each ..... We have here two
sovereignties, deriving power from different
sources, capable of dealing with the same
subject matter within the same territory. Each
may, without interference by the other, enact
laws to secure prohibition, with the limitation
that no legislation can give validity to acts
prohibited by the Amendment. Each
government, in determining what shall be an
offence against its peace and dignity, is
9
(1922) 260 U.S. 314
27
exercising its own sovereignty, not that of the
other."
21. Shri K.T.S. Tulsi, learned senior counsel in the present
case before us mainly contended that the facts based on
which the appellant (Monica Bedi) was prosecuted and
punished by a competent court of jurisdiction at Lisbon and
the facts based on which prosecution has been initiated
resulting in conviction are the same and, therefore, the
conviction of the appellant is in the teeth of Article 20 (2) of
the Constitution and Section 300 of the Code of Criminal
Procedure. The submission is not well founded for the
simple reason that the same set off facts can constitute
offences under two different laws. An act or an omission
can amount to and constitute an offence under IPC and at
the same time constitute an offence under any other law. It
needs no restatement that the bar to the punishment to the
offender twice over for the same offence would arise only
where the ingredients of both the offences are the same.
28
22. The question that falls for our consideration is, whether
the appellant can be said to have satisfied all the conditions
that are necessary to enable her to claim the protection of
Article 20 (2) of the Constitution. The charges upon which
the appellant has been convicted now, for the charges under
the Indian Penal Code, we will presume for our present
purpose that the allegations upon which these charges are
based, proved, resulting in conviction and punishment of the
appellant are substantially the same which formed the
subject matter of prosecution and conviction under the penal
provisions of Portugal law. But we have no doubt to hold
that the punishment of the appellant is not for the same
offence.
23. Be that as it may, there is no factual foundation laid as
such by the appellant taking this plea before the trial court.
Nothing is suggested to the Investigating Officer or to any of
the witnesses that she is sought to be prosecuted and
punished for the same offence for which she has been
29
charged and convicted by a competent court of jurisdiction
at Lisbon. She did not even make any such statement in her
examination under Section 313 Cr.P.C. It is true that the
fundamental right guaranteed under Article 20 (2) of the
Constitution is in the nature of an injunction against the
State prohibiting it to prosecute and punish any person for
the same offence more than ones but the initial burden is
upon the accused to take the necessary plea and establish
the same.
24. In Halsbury's Laws of England, 2nd Edition, Volume-IX,
the law is succinctly summarised on this aspect of the
matter as:
"If the defendant pleads autrefois convict or
autrefois acquit, the prosecution replies or
demurs. If the prosecution replies, which is the
usual course, a jury is sworn to try the issue(x).
The onus of proving the plea is on the defendant
(a). He may prove it by producing a certified
copy of the record or proceedings of the alleged
previous conviction or acquittal (b), and showing
by such copy or by other evidence, if necessary,
that he has been convicted or acquitted of the
same, or practically the same, offence as that on
which he has been arraigned (c), or that he
30
might on his former trial have been convicted of
the offence on which he has been arraigned (d).
The question for the jury on the issue is whether
the defendant has previously been in jeopardy in
respect of the charge on which he is arraigned
(e), for the rule of law is that a person must not
be put in peril twice for the same offence. The
test is whether the former offence and the
offence now charged have the same ingredients
in the sense that the facts constituting the one
are sufficient to justify a conviction of the other,
not that the facts relied on by the Crown are the
same in the two trials (f). "
25. However, having regard to the nature of the
guaranteed right we have examined the judgment passed by
a Constitutional Court, Lisbon ( a typed copy of the same
made available by the learned senior counsel for the
appellant - Monica Bedi which we believe to be a true copy)
does not support the plea of the appellant. The
Constitutional Court while considering the issue of
extradition of the appellant and the nature of the trial
undergone by her in Portugal observed:
[*]
"It is a fact that the appellant has been trialled
in Portugal for committing an offence provided
and punishable under article 256 of the penal
31
code. However, should any facts be found in
that process and in that trial that would release
her of any guilt regarding offences based upon
which she is wanted by the requesting state,
then it is not acceptable by means of a
restrictive and formal interpretation of a
principle which is deemed to assume wider
configurations to authorize her extradition to
trial her for facts strongly linked and which may
even coincide with those same offences.
In other words, it is not acceptable and it
cannot be admitted that the appellant has been
trialled and convicted in Portugal for the
commission of the offence of use of forged
documents, namely in a decision which
revealed in the analysis of the facts regarding
the attainment of such documents (allegedly
subsumed by India in the offences of corruption
and association) that the appellant was not
involved in those fact. Furthermore, it cannot
be admitted that her extradition is authorized in
order to trial her for committing such act.
Extradition process which brings in contact a
variety of legal systems and different forms of
legal classification and of behaviour
punishments, but which does not allow going
deeper in those laws, as well as in the evidence
based upon which the requests for extradition
were made requires a wider interoperation of
the principle of ne bis idem."
It is further observed:
32
"The Indian Union claims extradition of the
appellants to trial her for the commission of an
offence of criminal conspiracy. We consider that
this offence has no correspondence in our legal
and penal system and that it is not the object
of an autonomous incrimination. As a matter of
fact, it constitutes a from that could be
classified as joint authorship;
...As a matter of fact, we consider that such
arguments have no legal basis. Because the
requesting state wants at any cost the
appellants extradition, it is clear that it is
justifying its request by stating that criminal
conspiracy as opposed to what the person to be
extradited claims constitutes an autonomous
incrimination.
However, careful analysis of the original version
of article 120 B of the Indian Penal Code
(included in the records, but attached herewith
as documents no. 1 and which is incorrectly
translated into Portuguese) allows one to
conclude, with safety, that the type of
conspiracy described therein as being the
conduct of someone who commits an offence
associated with someone else (complicit), is not
coincident with the incorporation of a stable
organization, hierarchically defined and whose
object is the commission of offences.
...Given that our judiciary authorities are
convinced that the question under consideration
is the charge against the appellant regarding
offence subsumable under an offences of
criminal association which does not correspond
to the Indian charges.
33
...it is not up to the constitutional court to
interpret and set out the meaning of any
provisions contained in the Indian Penal Code
and establish on a final basis the scope of
criminal conspiracy, given that this would
transcend the object of constitutional rules
control.
Taking into consideration the reasons stated in
the appealed decision, one cannot accept the
argument that the appealed courts
interpretation of article 31, no. 2 of law 144/99
of 31st August was in the sense that the judge
is not obliged to substantiate and explain (in
the decision to extradite someone claimed for
the commission of offences which do no fall
within the range of offences provided under our
legal system) the reasons why the offence
should be appealed decision, the appellant
could not have raised this unconstitutionality
based on the different of legal qualification of
the offences that the was charged with by both
legal systems in concurrence. As a matter of
fact, the question under consideration is the
charge with different offences, one should note
that, besides the fact that this statement does
not faithfully reproduce what is said in the
summary decision, the two subsequent
paragraphs demonstrate that the real problem
does not involve the facts but rather the
different legal classification thereof."
[* There are number of typographical errors and mistakes in
construction of sentences and we did not correct the same
and extracted as it is from the copy supplied.]
34
26. In the light of these findings and conclusions reached
by the Constitutional Court at Lisbon and on a careful
consideration of the entire matter and the facts placed
before us, we are of the considered opinion that the
appellant's plea of double jeopardy is wholly untenable and
unsustainable. This point is accordingly answered against
the appellant.
Merits:
27. Now we shall proceed to consider as to whether the
courts below committed any error in convicting and
sentencing the appellant for the charged offences? Is there
no evidence against the appellant as contended by the
learned senior counsel? It is fairly settled that this Court in
exercise of its jurisdiction under Article 136 of the
Constitution of India normally does not interfere with the
concurrent findings of facts arrived at by the courts below
on proper appreciation of evidence. It is not the function of
this Court to re-appreciate the evidence and substitute the
35
findings for that of the courts below unless it is clearly
established that the findings and the conclusions so arrived
at by the courts below are perverse and based on no
evidence.
28. The simple case of the prosecution is that all the
appellants entered into a conspiracy in order to secure a
passport in the assumed name of Sana Malik Kamal, for the
benefit of Monica Bedi so as to enable her to utilize the same
to leave the country and travel abroad. There is no
controversy whatsoever that Monica Bedi travelled abroad
on the strength of the passport secured by her in the
assumed name. She entered Portugal with the aid of
passport standing in the name of Sana Malik Kamal for
which she has to face the prosecution and suffer conviction
and sentence in Portugal.
29. It is evident from the record that the involvement of
the appellants is at two stages. Stage one is where Monica
Bedi (A-3) and Mohd. Yunis (A-7) are involved in the pre-
36
passport application at the threshold and even before the
preparation of application seeking the passport in the
assumed name. Stage two is the involvement of Monica Bedi
(A-3), Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8)
after the submission of passport application before the
authorities. Exhibit P2 is the passport application submitted
in the assumed name of Sana Malik Kamal which contains
the photograph of Monica Bedi (A-3). Essential
requirements for obtaining the passport are: (1) passport
application; (2) proof of residence and (3) date of birth
certificate as spoken to by PWs. 2, 3, 21 and 31. How these
documents are obtained for the benefit of Monica Bedi has
been clearly brought on record through a number of
witnesses whose evidence remained unimpeached. It is
Mohd. Yunis (A-7), the Mandal Revenue Inspector who
verified the residence particulars of Sana Malik Kamal on the
instructions of PW-5, Mandal Revenue Officer, Kurnool and
submitted a false verification report based on which exhibit
P9 residence certificate was issued by PW-5. PW-17 on
37
requisition from C.B.I officials once again got verified and
issued exhibit P30 certificate to the effect that no person by
name Sana Malik Kamal resides in the house as earlier
submitted by Mohd. Yunis (A-7). PW-37 is the Investigating
Officer who in his evidence stated that he verified the
particulars of occupants of the said house in the presence of
PW-27 (D.V. Ratnamaiah), Assistant Superintendent of Post
Offices, Kurnool and found no such person named Sana
Malik Kamal ever resided therein. It is based on this
evidence the trial court and appellate court came to the right
conclusion that the prosecution established its case that it is
Mohd. Yunis (A-7) who gave false verification based on
which exhibit P9 residence certificate was issued by PW-5 in
the name of Sana Malik Kamal. The trial court convicted
Mohd. Yunis (A-7) for the offence under Section 468 IPC
which reads as under:
"468. Forgery for purpose of cheating. -
Whoever commits forgery, intending that the
document or electronic record forged shall be
used for the purpose of cheating, shall be
38
punished with imprisonment of either
description for a term which may extend to
seven years, and shall also be liable to fine."
Section 463 defines forgery, which reads as under:
"463. Forgery.- Whoever makes any false
documents or false electronic record or part of a
document or electronic record, with intent to
cause damage or injury, to the public or to any
person, or to support any claim or title, or to
cause any person to part with property, or to
enter into any express or implied contract, or
with intent to commit fraud or that fraud may
be committed, commits forgery."
30. The High Court came to the conclusion that in
submitting the false verification report in respect of
residence of Sana Malik Kamal he may not have been aware
and knew that the certificate so obtained would be used for
the purpose of securing the passport in the assumed name
of Sana Malik Kamal. At any rate there is no evidence on
that aspect of the matter. The High Court also came to the
conclusion that by the time Mohd. Yunis (A-7) submitted a
false verification there is nothing on record that he was
hand in glove with the other accused for the purpose of
39
cheating. Be it noted that the High Court confirmed the
acquittal of A-7 of the charge under Section 120B IPC. The
High Court, accordingly, found that the proper offence made
against him would be one for making forged document
simplicitor punishable under Section 465 IPC. In our
considered opinion, the High Court was not justified in
convicting Mohd. Yunis (A-7) at all for it had found no case
against the appellant made out under Section 120B IPC and
further found that there is no evidence to assume that he
was hand in glove with the other accused for the purpose of
cheating. That there is no evidence that A-7 prepared false
document with intent to cause damage or injury, to the
public or to any person, or to support any claim or title, or to
cause any person to part with property, or to enter into any
express or implied contract, or with intent to commit fraud.
The ingredients of Section 463 are not satisfied. In such an
event the conviction of the appellant under Section 465 IPC
is unsustainable.
40
31. That so far as D. Gokari Saheb (A-8) is concerned
there is a clear evidence which has been properly
appreciated by the courts below that he who took the article
(envelop contained the passport) addressed to Sana Malik
Kamal from PW-11 representing that he knew the addressee
and deliver the same. The said article was actually
entrusted to PW-11 for its delivery but D. Gokari Saheb (A-
8) took the same from PW-11 for delivery to Sana Malik
Kamal - assumed name of Monica Bedi (A-3). The courts
below found that D. Gokari Saheb (A-8) was aware of the
contents of the article. It is under those circumstances the
courts below came to the right conclusion that evidence
available on record clearly establish that he participated in
the conspiracy in securing the passport for Monica Bedi in
the assumed name of Sana Malik Kamal. Thus the
conviction of D. Gokari Saheb (A-8) for the charged
offences is accordingly upheld. We do not find any reason
whatsoever to interfere with the view taken by the High
Court. However, the sentence of one year rigorous
41
imprisonment under each count awarded while maintaining
the fine imposed by the trial court is reduced to that of 6
months rigorous imprisonment under each count while
maintaining the fine amount.
32. Shaik Abdul Sattar (A-5) is the Head Constable who
submitted exhibit P15 report. PW-7, PW-8 and PW-14 are
the material witnesses examined by the prosecution to
prove the accusations leveled against A-5. PW-7 at the
relevant time was Junior Assistant in the District Police
Office, Kurnool who speaks about entrustment of the
verification of the passport application in respect of Sana
Malik Kamal to A-5. He also speaks about A-5 submitting
Exhibit P15 inquiry report together with statements of
persons purported to have been recorded by him in exhibit
P16 and P17. There is absolutely nothing on record to
disbelieve the evidence of PW-7 who stated in his evidence
that A-5 submitted exhibit P15 report knowing it to be a
false one apart from certifying that Sana Malik Kamal was
residing at that particular house in Kurnool and was not
42
involved in any civil and criminal cases and there was
nothing adverse against her. PW-8 was working as Inspector
of Police, District Special Branch, Kurnool who prepared
exhibit P18 letter on the basis of exhibit P15 inquiry report
submitted by A-5. PW-14 is the Sub-Inspector, District
Special Branch, Kurnool who testified that A-5 submitted
exhibit P15 report and it bears signature of A-5. The courts
below held that the evidence of PW-7, PW-8 and PW-14 is
cogent and consistent which in clear and categorical terms
prove the fact that A-5 is the person who verified the
passport application particulars of Sana Malik Kamal and
submitted exhibit P15 inquiry report along with exhibit P16
and exhibit P17 enclosures. There cannot be any doubt
whatsoever that A-5 submitted a false report in order to
enable Monica Bedi to secure a passport for herself in the
assumed name of Sana Malik Kamal. His conviction for the
charged offences is accordingly upheld. The High Court
however, reduced the sentence awarded by the trial court to
one year rigorous imprisonment under each count while
43
maintaining the fine imposed by the trial court. The
sentence awarded under Section 13 (1) (d) r/w 13 (2) of
Prevention of Corruption Act has been confirmed. Having
regard to the facts and circumstances of the present case,
we however, reduce the sentence to that of six months
rigorous imprisonment under each count while maintaining
the fine imposed by the trial court and the sentence to suffer
imprisonment, in default, of payment of fine. Sentences are
directed to run concurrently.
Case of Monica Bedi - Appellant in Criminal Appeal No.
782/2007:
33. So far as the appellant - Monica Bedi is concerned she
is involved in the conspiracy as proved at both stages i.e.
pre-passport application stage and post-passport application
stage. The conspiracy itself has been hatched only with a
view to secure a passport for Monica Bedi in the assumed
name of Sana Malik Kamal. We do not find any merit in the
submission of Shri Tulsi, learned senior counsel that there is
44
no evidence whatsoever against Monica Bedi to prove her
involvement for the offence punishable under Sections 120B,
419 and 420 IPC. The sequence of events as unfolded by
the evidence, which we do not want to recapitulate once
again as we have noticed the same in detail in the preceding
paragraphs, clearly prove the charges levelled against
Monica Bedi. It is for her benefit that the entire conspiracy
has been hatched involving more than one individual in
order to secure a passport for her benefit enabling her to
travel abroad in the assumed name of Sana Malik Kamal.
There is no material based on which this Court is to differ
with the findings and conclusions concurrently arrived at by
the courts below.
Shri Tulsi, however, reiterated the submission which he
made before the High Court that exhibit P50 is a Photostat
copy of the passport in the name of Sana Malik Kamal and
the same is inadmissible document as it is not authenticated
by legal keeper as provided under Section 78 (6) of the
Indian Evidence Act. The submission was that based on
45
such inadmissible document no prosecution could be
launched and once it is to be held that the said document is
not admissible the whole case of the prosecution collapses
like a pack of cards. The High Court after elaborate
consideration of the matter came to the right conclusion that
Section 78 (6) of the Evidence Act, 1872 deals with public
document of any other class in a foreign country. In the
present case, the original of exhibit P50 is the passport
issued by the competent authorities in this country and,
therefore, Section 78 (6) has no application whatsoever to
the facts of this case. The issuance of original of exhibit P50
passport is clearly proved. It is based on that passport
Monica Bedi travelled abroad and entered Portugal for which
she has to face a prosecution and suffer conviction and
sentence. The prosecution cannot be held to be vitiated.
We accordingly reject the contention and uphold the
conviction of the appellant for the offence punishable under
Sections 120B, 419 and 420 IPC. The High Court, however,
reduced the sentence of imprisonment imposed on the
46
appellant - Monica Bedi (A-3) as noticed in the preceding
paragraphs. The High Court also held that she is entitled for
set off of the periods of detention suffered by her in Lisbon
i.e. from 18.9.2004 to 4.6.2005 and 3.11.2005 to
10.11.2005.
However, having regard to the facts and circumstances
of the case and the fact that she had undergone more than
2 = years of sentence, we consider it appropriate to reduce
the sentence to that of already undergone by her while
maintaining fine amount imposed by the courts below.
34. In the view we have taken it is not necessary to go into
the question as to the interpretation of Section 428 Cr.P.C
and her entitlement to set off against the sentence imposed
on her.
Conclusion:
35. Criminal Appeal NO. 782 of 2007 ( Monica Bedi -
A-3)
47
For all the aforesaid reasons, we confirm the conviction
of Monica Bedi (A-3) under Sections 120B, 419 and 420 IPC.
The sentence awarded under each count directed to run
concurrently is reduced to that of the period already
undergone by her while maintaining the sentence of fine
awarded by the courts below. The bail bonds shall stand
cancelled.
The appeal is, accordingly, partly allowed.
Criminal Appeal NO. 784 of 2007 ( Shaik Abdul Sattar
- A-5)
The conviction of Shaik Abdul Sattar (A-5) under
Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and
as well as under Section 13 (1) (d) r/w 13(2) of the
Prevention of Corruption Act is, accordingly, upheld.
However, the sentence awarded under each count is reduced
to that of six months rigorous imprisonment while
maintaining the fine imposed by the courts below. Sentences
48
are directed to run concurrently. He shall surrender before
the trial court to serve the remaining sentence, if any.
The appeal is, accordingly, partly allowed.
Criminal Appeal NO. 1357 of 2007 ( Mohd. Yunis - A-
7)
Mohd. Yunis (A-7) is acquitted for the offence under
Section 465 IPC and sentence awarded is set aside. The bail
bonds shall stand cancelled.
The appeal is, accordingly, allowed.
Criminal Appeal NO. 783 of 2007 ( D. Gokari Saheb -
A-8)
The conviction of D. Gokari Saheb (A-8) under
Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and
as well as under Section 13 (1) (d) r/w 13(2) of the
Prevention of Corruption Act is, accordingly, upheld.
However, the sentence awarded under each count is reduced
to that of six months rigorous imprisonment while
49
maintaining the fine imposed by the courts below. Sentences
are directed to run concurrently. He shall surrender before
the trial court to serve the remaining sentence, if any.
The appeal is, accordingly, partly allowed.
..................................
........J.
(B. SUDERSHAN REDDY) ..........................................J.
(SURINDER SINGH NIJJAR)
New Delhi,
November 09, 2010.
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