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prevention of corruption act

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At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit. =Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988 (for short, `the 1988 Act’) and whether the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in clause I(15) of the directions contained in paragraph 58 of the judgment of this Court in Vineet Narain v. Union of India (1998) 1 SCC 226 and the guidelines issued by the

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1193 OF 2012 (Arising out of SLP(C) No. 27535 of 2010) Dr. Subramanian Swamy … Appellant versus Dr. Manmohan Singh and another … Respondents J U D G M E N T G. S. Singhvi, J. 1. Leave granted. 2. Whether … Continue reading

At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.

Image via Wikipedia 1 REPORTABLE IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NO. 1193 OF 2012 (Arising out of SLP(C) No. 27535 of 2010)   Dr. Subramanian Swamy … Appellant   versus   Dr. Manmohan Singh and another … Respondents     J U D G M E N … Continue reading

BAIL TO SURESH KALMADI =The Petitioner Suresh Kalmadi has been in custody for over eight months and Petitioner V.K. Verma for ten months. There is no allegation BAIL APPLNs. 1692/2011 & 1515/2011 Page 18 of 18 that the Petitioners are likely to flee from justice and will not be available for the trial. The allegations against the Petitioners are of having committed economic offences which have resulted in loss to the State Exchequer by adopting the policy of single vendor and ensuring that the contract is awarded only to STL. Whether it was a case of exercise of discretion for ensuring the best quality or a case of culpability will be decided during the course of trial. There is no allegation of money trial to the Petitioners. There is no evidence of the Petitioners threatening the witnesses or interfering with evidence during investigation or trial. There is no allegation that any other FIR has been registered against the Petitioners. 18. In the facts and circumstances of the case, I am inclined to bail to the Petitioners. It is, therefore, directed that the Petitioners be released on bail on their furnishing a personal bond in the sum of Rs.5 lakhs with two sureties of the like amount each, subject to the satisfaction of the learned Trial Court. The Petitioners will not leave the Country without the prior permission of the learned Trial Court.

BAILAPPLNs. 1692/2011 & 1515/2011 Page 1 of 18 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 10th January, 2012 Decided on: 19th January, 2012 + BAIL APPLN. 1692 OF 2011 SURESH KALMADI ….. Petitioner Through: Mr. Mukul Rohtagi, Mr. Sushil Kumar, Mr. Sidharth Luthra, Sr. Advocates with Mr. Hitesh Jain, … Continue reading

whether the Special Judge could refuse to accept closure report and direct reinvestigation of the case for the second time in order to proceed further although he was confronted with the legal impediment indicating lack of sanction for prosecution in the matter. =We are therefore of the considered view that the Special Judge in the wake of all these legal flaws as also the fact that the Special Judge under the circumstance was not competent to proceed in the matter without sanction for prosecution, could not have ordered for reinvestigation of the case for the third time by refusing to accept closure report dated 18.05.2004. This amounts to sheer abuse of the process of law resulting into vexatious proceeding and harassment of the appellant for more than 10 years without discussing any reason why he disagreed with the report of the Lokayukta and consequently the closure report which would have emerged if the Special Judge had carefully proceeded in accordance with the procedure enumerated for initiation of proceeding under the Code of Criminal Procedure.

REPORTABLE   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION   CRIMINAL APPEAL NO.166 OF 2012 (Arising out of Special Leave Petition (Crl.) No.1548/2011)     VASANTI DUBEY . Appellant   Versus   STATE OF MADHYA PRADESH ..   Respondent     J U D G E M E N T     GYAN … Continue reading

sanction to prosecute a public servant – absence of sanction can be challenged at the begining, but the validity of sanction can be challenged only during trial of the case

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL Nos.2170-2171 OF 2011 [ARISING OUT OF S.L.P. (CRL) NOS. 10278-10279 OF 2010] DINESH KUMAR … APPELLANT(S) Versus CHAIRMAN, AIRPORT AUTHORITY OF INDIA AND ANOTHER . RESPONDENT(S) J U D G M E N T R.M. LODHA,J. Leave granted. 2. The appellant is … Continue reading

Penal Code, 1860: ss. 409, 420, 467, 477-A r/w 120-B-Forgery and misappropriation of bank loans-Bank Manager and Field Officer in conspiracy with each other sanctioned and disbursed loans in names of fictitious persons-Trial Court holding both guilty and sentencing them-Acquittal by High Court-HELD: Prosecution has brought ample material on record which led to only one conclusion that accused committed the offences-Exoneration of one of the accused in departmental inquiry initiated only against him having concluded before police investigation stated in the case, would be of no avail as Inquiry Officer did not have benefit of the evidence that was made available in the criminal proceedings-Besides, the inquiry report was not brought on record and factum of exoneration in departmental proceedings was taken as a defence, it was for the accused to bring on record the relevant material, which was not done-High Court also erred in purporting to hold that specimen finger print and handwritings could not have been taken from accused-ss. 5 and 6 of Identification of Prisoners Act, clearly provides for such a contingency-High Court completely misdirected itself in passing a judgment of acquittal-Judgment of High Court set aside-Prevention of Corruption Act, 1944-ss. 5(1) and 5(2)-Code of Criminal Procedure, 1973-Appeal against acquittal-Identification of Prisoners Act, 1920-ss. 5 and 6. Prevention of Corruption Act, 1947: s. 5(1) r/w s.5(2), proviso-Bank Manager and Field Officer forging loans in names of fictitious persons-Both held guilty by trial court-Acquittal by High Court-HELD: Bank Manager completing all formalities required to be complied with for grant of loan including obtaining appraisal report from Field Officer, sanction and disbursement of loan on date of filing of loan application itself-Entire prosecution relating to forgery and misappropriation having been attributed to the Manager, and he having used the appraisal reports prepared by Field Officer, a case is made out to invoke the proviso appended to sub-s.(2) of s.5 in the case of Field Officer-Therefore, while upholding conviction and sentence awarded by trial court as against the Manager, sentence of rigorous imprisonment of three months is imposed on Field Officer-Penal Code, 1860-ss. 409, 420, 467 and 477-A r/w 120-B IPC. Code of Criminal Procedure, 1973: Appeal against acquittal-Jurisdiction of appellate Court-HELD: an appellate court, while entertaining an appeal against acquittal, would be entitled to consider the evidence brought on record and arrive at its own conclusion-Interference with a judgment of acquittal may not be made when two views are possible to be taken but when only one view is possible to be taken, appellate court would not hesitate to interfere with judgment of acquittal-In the instant case no two views are possible to be taken-Accused were rightly held guilty of the offences charged-High Court misdirected itself in passing judgment of acquittal-Judgment of High Court set aside-Penal Code, 1860-ss. 409, 420, 467, 477-A r/w s.120-B-Prevention of Corruption Act, 1947-ss. 5(1), (2). Respondent A-1 and respondent A-2, who were Manager and Field Officer respectively of the appellant Bank, were prosecuted under ss. 409, 420, 467 and 477-A read with s.120-B IPC and s.5 read with s.5(2) of the Prevention of Corruption Act, 1947. The allegations against them were that during the period 7.12.1984 to 14.8.1986, they conspired with each other in matter of sanctioning and disbursing 6 Crop Loans of Rs.5000/- each in the names of fictitious persons by forging signatures and thumb impressions of proposed borrowers in documents resulting in misappropriation of the proceeds of Rs.30,000/-. The trial court held both the accused guilty of the offences charged and sentenced both of them to rigorous imprisonment for six moths. It rejected the plea of respondent A-2 that in view of the departmental proceedings against him resulting in his exoneration he was entitled to be acquitted. On appeal, the High Court acquitted the accused observing, inter alia, that the procedure adopted for obtaining finger prints being contrary to fundamental rights of the accused, the same was not admissible in evidence; that neither the Bank received any complaint from loanees nor did the prosecution bring any corroborative material on record. In the instant appeals filed by the Bank, it was contended for respondent A-2 that he merely prepared the appraisal report and he was not involved in any forgery; that he joined the service only in 1984 and was transferred on or about 14.8.1986, and subsequent renewals of loans having been prepared in 1987, he was entitled to acquittal. =Allowing the appeals, the Court HELD: 1.1. In the instant case, evidently, the formalities required to be complied with for grant of loan, appraisal report recommendation prepared by respondent A-2 and sanction and disbursement of loan by respondent A-1 were completed on the very same day on which application for grant of loan was filed. It has furthermore been brought on record that PW-21 and PW-22 on whose behalf loan was applied, were known to respondent A-1. They stated that they were residents of a district different than that shown in their applications. This clearly establishes that the transactions were manipulated by respondent A-1. PW-3, in her deposition, in no uncertain line, stated that all transactions right from application to disposal took place in the afternoon of a day and all the documents used to be processed during the lunch hour, whereas as per to the procedure, the disbursement of loan could take place only upon proper verification thereof. The modus operandi of respondent A-1 appeared to be that he had affixed his own thumb impression instead of those of the loanees. Upon sanction of the said loan, the accountant concerned paid the amount of loan to accused A-1. The said loans were also renewed for the years 1986 and 1987. [Para s 12, 14, 24 and 25] [581-C; 582-B-C-D; 584-B-C] 1.2. The finger print expert (PW-17), in his evidence, proved that specimen fingerprints tallied with the disputed fingerprints. PW-17 is a qualified and experienced fingerprint expert. There is no reason to discredit his testimony. Apart from the fingerprints, the prosecution also obtained the specimen handwritings of respondent A-1. Handwritings on the said loan documents/applications for grant of loan was found to be that of accused No.1. The High Court also committed a manifest error in purporting to hold that the specimen fingerprints and handwritings could not have been taken from respondent A-1. Sections 5 and 6 of the Identification of Prisoners Act, 1920 clearly provides for such a contingency. [Paras 15, 17, 18, 34 and 35] [582-E, G; 583-A-B; 586-F-G] State of Bombay v. Kathi Kalu Oghad, AIR (1961) SC 1808, relied on. 1.3. It may be true that there was no documentary evidence to show that the amount had actually been paid in cash to the respondent A-1. But then no documentary evidence would be available as it was for the respondent A-1, as Manager of the Bank, to hand over the amount in cash to the loanees upon receiving the same from PW-3. Besides, PW-5 also stated that debit vouchers (Ext. P-6) contained only one stamp showing as cash paid but it did not contain his signature, although it purported to have been shown to be his. Ext. P-6 was, therefore, a forged document. [Paras 20 and 21] [583-E-F, D] 1.4. PWs 3 and 5 who had been working in the same branch of the bank with the respondents have proved the procedure adopted in the matter of grant of loan. There cannot, therefore, be any doubt whatsoever that ample materials have been brought on record by the prosecution which led to only one conclusion that the accused were responsible therefor. [Para 22] [583-G] 1.5. It may be that no act of forgery and misappropriation has been attributed to respondent A-2, but he was the one who had prepared the appraisal report. After preparation of such appraisal report, the loan amounts were sanctioned and the amount of loan purported to have been paid to the loanees and, therefore, he was also guilty of commission of the said offences. [Para 23] [583-H; 584-A] 2. The High Court purported to have laid emphasis on exoneration of respondent A-2 in departmental enquiry. The departmental enquiry was initiated only against respondent A-2 and was completed even before the police investigation in the case started. The enquiry officer did not have the occasion to consider all the materials brought on record by the prosecution which clearly established the involvement of the respondents. Exoneration of respondent A-2 in the departmental proceedings cannot, therefore, lead to the conclusion that he was not guilty of commission of the offences wherefor he was charged. Furthermore, the enquiry report has not been brought on record. Besides, the factum of exoneration of respondent A-2 in the departmental proceedings was raised by way of defence. It was, therefore, obligatory on his part to bring on record all the relevant documents, including the findings of the Enquiry Officer. [Paras 27, 28, 29 and 33] [574-E-F; 584-G-H; 585-A; 586-D-E] P.S. Rajya v. State of Bihar, [1996] 9 SCC 1, distinguished. State of Haryana v. Bhajan Lal, [1990] 3 SCR 259=[1992] Supp. 1 SCC 335 and Superintendent of Police (CBI) v. Deepak Chowdhary & Ors., [1995] 6 SCC 225, referred to. 3. The High Court, therefore, completely misdirected itself in passing a judgment of acquittal in favour of the respondents. The trial judge had assigned cogent reasons in support of its findings. The High Court did not meet the said reasoning. The impugned judgment of the High Court cannot be sustained. [Paras 26 and 37] [584-D; 859-B] 4. The Court is not oblivious of the fact that presumption of innocence is a human right and when an accused is acquitted by a court, such presumption becomes stronger. It is, however, a trite law that an appellate court, while entertaining an appeal from a judgment of acquittal, would also be entitled to consider the evidences brought on record by both the prosecution and the defence and arrive at its own decision. Interference with a judgment of acquittal may not be made when two views are possible to be taken, but when on appraisal thereof, only one view is possible, the appellate court would not hesitate to interfere with the judgment of acquittal. In this case, the Court is firmly of the view that no two views are possible to be taken. [Paras 37 and 38] [589-B, D, E] State of Haryana v. Sher Singh & Ors., [2002] 9 SCC 356; Narender Singh & Anr. v. State of M.P., [2004] 10 SCC 699 and Budh Singh & Ors. v. State of U.P., [2006] 9 SCC 731, referred to. 5. The entire prosecution case relating to charges of forgery and misappropriation has been attributed to respondent A-1 alone. Thus, a case has been made out to invoke the proviso appended to sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 in the case of respondent A-2. Furthermore, he worked in the bank for a short period and was still undergoing probation. Forgery and misappropriation was committed by respondent A-1 even thereafter. The appraisal reports prepared by respondent A-2 were used by respondent A-1 also for the subsequent period, namely, 1987 when respondent A-2 was no longer working in the said branch. Therefore, while upholding the conviction and sentence awarded by the trial judge as against respondent A-1, in view of the special reasons recorded in the judgment, a sentence of rigorous imprisonment of three months is imposed on respondent A-2. He shall, however, be liable to pay a fine of Rs.20,000/- (Rupees twenty thousand only) and in default shall undergo a sentence of three months. [Paras 40, 41 and 42] [589-G; 590-A-C] A. Sharan , ASG., Amit Anand Tiwari and P. Parmeswaran for the Appellants. L.N. Rao, R. Santhan Krishnan, K. Radha Rani, P. Vijaya Kumar and D. Mahesh Babu for the Respondents. =Allowing the appeals, the Court HELD: 1.1. In the instant case, evidently, the formalities required to be complied with for grant of loan, appraisal report recommendation prepared by respondent A-2 and sanction and disbursement of loan by respondent A-1 were completed on the very same day on which application for grant of loan was filed. It has furthermore been brought on record that PW-21 and PW-22 on whose behalf loan was applied, were known to respondent A-1. They stated that they were residents of a district different than that shown in their applications. This clearly establishes that the transactions were manipulated by respondent A-1. PW-3, in her deposition, in no uncertain line, stated that all transactions right from application to disposal took place in the afternoon of a day and all the documents used to be processed during the lunch hour, whereas as per to the procedure, the disbursement of loan could take place only upon proper verification thereof. The modus operandi of respondent A-1 appeared to be that he had affixed his own thumb impression instead of those of the loanees. Upon sanction of the said loan, the accountant concerned paid the amount of loan to accused A-1. The said loans were also renewed for the years 1986 and 1987. [Para s 12, 14, 24 and 25] [581-C; 582-B-C-D; 584-B-C] 1.2. The finger print expert (PW-17), in his evidence, proved that specimen fingerprints tallied with the disputed fingerprints. PW-17 is a qualified and experienced fingerprint expert. There is no reason to discredit his testimony. Apart from the fingerprints, the prosecution also obtained the specimen handwritings of respondent A-1. Handwritings on the said loan documents/applications for grant of loan was found to be that of accused No.1. The High Court also committed a manifest error in purporting to hold that the specimen fingerprints and handwritings could not have been taken from respondent A-1. Sections 5 and 6 of the Identification of Prisoners Act, 1920 clearly provides for such a contingency. [Paras 15, 17, 18, 34 and 35] [582-E, G; 583-A-B; 586-F-G] State of Bombay v. Kathi Kalu Oghad, AIR (1961) SC 1808, relied on. 1.3. It may be true that there was no documentary evidence to show that the amount had actually been paid in cash to the respondent A-1. But then no documentary evidence would be available as it was for the respondent A-1, as Manager of the Bank, to hand over the amount in cash to the loanees upon receiving the same from PW-3. Besides, PW-5 also stated that debit vouchers (Ext. P-6) contained only one stamp showing as cash paid but it did not contain his signature, although it purported to have been shown to be his. Ext. P-6 was, therefore, a forged document. [Paras 20 and 21] [583-E-F, D] 1.4. PWs 3 and 5 who had been working in the same branch of the bank with the respondents have proved the procedure adopted in the matter of grant of loan. There cannot, therefore, be any doubt whatsoever that ample materials have been brought on record by the prosecution which led to only one conclusion that the accused were responsible therefor. [Para 22] [583-G] 1.5. It may be that no act of forgery and misappropriation has been attributed to respondent A-2, but he was the one who had prepared the appraisal report. After preparation of such appraisal report, the loan amounts were sanctioned and the amount of loan purported to have been paid to the loanees and, therefore, he was also guilty of commission of the said offences. [Para 23] [583-H; 584-A] 2. The High Court purported to have laid emphasis on exoneration of respondent A-2 in departmental enquiry. The departmental enquiry was initiated only against respondent A-2 and was completed even before the police investigation in the case started. The enquiry officer did not have the occasion to consider all the materials brought on record by the prosecution which clearly established the involvement of the respondents. Exoneration of respondent A-2 in the departmental proceedings cannot, therefore, lead to the conclusion that he was not guilty of commission of the offences wherefor he was charged. Furthermore, the enquiry report has not been brought on record. Besides, the factum of exoneration of respondent A-2 in the departmental proceedings was raised by way of defence. It was, therefore, obligatory on his part to bring on record all the relevant documents, including the findings of the Enquiry Officer. [Paras 27, 28, 29 and 33] [574-E-F; 584-G-H; 585-A; 586-D-E] P.S. Rajya v. State of Bihar, [1996] 9 SCC 1, distinguished. State of Haryana v. Bhajan Lal, [1990] 3 SCR 259=[1992] Supp. 1 SCC 335 and Superintendent of Police (CBI) v. Deepak Chowdhary & Ors., [1995] 6 SCC 225, referred to. 3. The High Court, therefore, completely misdirected itself in passing a judgment of acquittal in favour of the respondents. The trial judge had assigned cogent reasons in support of its findings. The High Court did not meet the said reasoning. The impugned judgment of the High Court cannot be sustained. [Paras 26 and 37] [584-D; 859-B] 4. The Court is not oblivious of the fact that presumption of innocence is a human right and when an accused is acquitted by a court, such presumption becomes stronger. It is, however, a trite law that an appellate court, while entertaining an appeal from a judgment of acquittal, would also be entitled to consider the evidences brought on record by both the prosecution and the defence and arrive at its own decision. Interference with a judgment of acquittal may not be made when two views are possible to be taken, but when on appraisal thereof, only one view is possible, the appellate court would not hesitate to interfere with the judgment of acquittal. In this case, the Court is firmly of the view that no two views are possible to be taken. [Paras 37 and 38] [589-B, D, E] State of Haryana v. Sher Singh & Ors., [2002] 9 SCC 356; Narender Singh & Anr. v. State of M.P., [2004] 10 SCC 699 and Budh Singh & Ors. v. State of U.P., [2006] 9 SCC 731, referred to. 5. The entire prosecution case relating to charges of forgery and misappropriation has been attributed to respondent A-1 alone. Thus, a case has been made out to invoke the proviso appended to sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 in the case of respondent A-2. Furthermore, he worked in the bank for a short period and was still undergoing probation. Forgery and misappropriation was committed by respondent A-1 even thereafter. The appraisal reports prepared by respondent A-2 were used by respondent A-1 also for the subsequent period, namely, 1987 when respondent A-2 was no longer working in the said branch. Therefore, while upholding the conviction and sentence awarded by the trial judge as against respondent A-1, in view of the special reasons recorded in the judgment, a sentence of rigorous imprisonment of three months is imposed on respondent A-2. He shall, however, be liable to pay a fine of Rs.20,000/- (Rupees twenty thousand only) and in default shall undergo a sentence of three months. [Paras 40, 41 and 42] [589-G; 590-A-C] A. Sharan , ASG., Amit Anand Tiwari and P. Parmeswaran for the Appellants. L.N. Rao, R. Santhan Krishnan, K. Radha Rani, P. Vijaya Kumar and D. Mahesh Babu for the Respondents. =2008 AIR 368 , 2007(11 )SCR570 , , 2007(12 )SCALE618 , 2007(12 )JT413

CASE NO.: Appeal (crl.) 1394-1395 of 2004 PETITIONER: State through SPE & CBI, AP RESPONDENT: M. Krishna Mohan & Anr DATE OF JUDGMENT: 12/10/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G M E N T S.B. Sinha, J. 1. Correctness of a judgment of acquittal passed by the High Court … Continue reading

Penal Code, 1860 – ss. 120-B, 419, 420, 465 and 468 – Accused entering into a conspiracy with other co-accused, namely, Head Constable, Revenue Inspector and Postman, to secure passport in the assumed name to enable her to leave the country and travel abroad – Submission of false documents – Framing of charges – Plea of double jeopardy by accused that she was tried and convicted by Lisbon court for being in possession of fake passport – Conviction of accused for the offences punishable u/ss. 120-B, 419 and 420; Head Constable u/ss 120-B, 419/109, 420/109, 468 and ss. 13(1)(d) r/w. 13(2) of the 1988 Act; Revenue Inspector u/s. 468; and Postman u/ss. 120-B, 420, 419/109, 420/109 and ss. 13(1)(d) r/w. 13(2) of the 1988 Act – High Court upholding conviction of accused persons, however modifying the sentence – On appeal, held: Same set of facts can constitute offences under two different laws – Bar to punishment to the offender twice over for the same offence would arise only where the ingredients of both the offences are the same – On the basis of the judgment passed by the Constitutional Court, Lisbon and the facts of the case, plea of double jeopardy not sustainable – Accused was involved in conspiracy at both pre-passport application stage and post-passport application stage – Thus, her conviction is upheld, however sentence is reduced to the period already undergone while fine amount is maintained – Evidence on record established that the Postman participated in the conspiracy in securing the passport for accused in the assumed name; and the Head Constable submitted a false report in order to enable the accused to secure a passport for herself in the assumed name – Thus, their conviction is upheld however, the sentence is reduced while fine amount is maintained – As regards Revenue Inspector, ingredients for the offence of forgery not satisfied, thus, he is acquitted of the offence u/s. 465 – Constitution of India, 1950 – Article 20(2) – Rule of double jeopardy – Prevention of Corruption Act, 1988 – s.13(1)(d) r/w 13(2) – Sentence/Sentencing. Constitution of India, 1950 – Article 20(2) – Protection against a second trial and conviction for the same offence under Article 20(2) – When applicable – Explained – Rule of double jeopardy – General Clauses Act, 1897 – Code of Criminal Procedure, 1973 – s. 300. Maxim – `Nemo delset bis vexari pro eadem causa’ – Meaning of – No one should be put on peril twice for the same offence. According to the prosecution case, `M’ (A 3) entered into a conspiracy with A 5 – Head Constable, A 7 – Revenue Inspector, Kurnool and A 8 – Postman, Head Post Office, Kurnool to secure second passport in the assumed name of `SM’ from the Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate. `M’ entered Portugal with the aid of passport standing in the name of `SM’, and was prosecuted and punished by a competent court of jurisdiction at Lisbon. In India, the charges were framed against the accused persons under various provisions of the Penal Code, 1860 and the Prevention of Corruption Act, 1988. A-3 raised a plea of double jeopardy that she was tried and convicted by Lisbon court for being in possession of fake passport. The trial court convicted A 3 under sections 120-B, 419 and 420 IPC but acquitted her of the charge under Section 12 of the Passports Act, 1967. A 5 was convicted 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, A 7 under Section 468 IPC, and A 8 under Sections 120-B, 420, 419 r/w 109, 420 r/w 109 and Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The High Court on re-appreciation of the evidence confirmed the conviction but modified the sentence. Therefore, the appellants filed the instant appeals. =Allowing the appeal filed by the Revenue Inspector and partly allowing the appeals filed by others, the Court HELD: 1.1 Article 20 (2) of the Constitution of India, 1950 provides that no person would be prosecuted and punished for the same offence more than once. It embodies a protection against a second trial and conviction for the same offence. 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. The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari. 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. The principle has been recognized in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Code of Criminal Procedure, 1973. [Paras 13, 14 and 15] [539-F-H; 540-A-E] 1.2 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. 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. Thus, it is 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. 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. [Para 17] [541-D-E; 543-B-D] Maqbool Hussain vs. The State of Bombay (1953) SCR 730; S.A. Venkataraman vs. The Union of India & Anr. (1954) SCR 1150; Leo Roy Frey vs. Superintendent District Jail, Amritsar (1958) SCR 822; The State of Bombay vs. S.L. Apte (1961) 3 SCR 107; Bhagwan Swarup vs. State of Maharashtra AIR 1965 SC 682; State of Rajasthan vs. Hat Singh and Ors. (2003) 2 SCC 152- referred to. United States vs. Rabinowith (1915) 238 US 78; T.W. Morgan vs. Alfonso J. Devine @ Ollie Devine (1915) 237 U.S.1153; United States vs. Vito Lanza (1922) 260 U.S. 314 – referred to. 1.3 The submission that the facts based on which `M’ was prosecuted and punished by a competent court of jurisdiction at Lisbon and the facts based on which prosecution was initiated resulting in conviction are the same and, therefore, the conviction of `M’ is in the teeth of Article 20 (2) of the Constitution and Section 300 of the Code of Criminal Procedure is not well founded since the same set of 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. 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. [Para 21] [545-C-E] 1.4 There is no factual foundation laid as such by `M’ taking the plea of double jeopardy 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 was 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. 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 once but the initial burden is upon the accused to take the necessary plea and establish the same. [Para 23] [545-H; 546-A-C] Halsbury’s Laws of England, 2nd Edn, Volume-IX – referred to. 1.5 Having regard to the nature of the guaranteed right, the judgment passed by the Constitutional Court, Lisbon (a typed copy) was examined and the same does not support the plea of `M’. In the light of the findings and conclusions reached by the Constitutional Court at Lisbon and on a careful consideration of the entire matter and the facts, plea of double jeopardy is wholly untenable and unsustainable. [Paras 25 and 26] [547-A-B; 549-G-H] 2. 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 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. [Para 27] [550- B-C] 3.1 There is no controversy whatsoever that `M’ 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 `SM’ for which she had to face the prosecution and suffer conviction and sentence in Portugal. [Para 28] [550-E-F] 3.2 It is evident from the record that the involvement of the appellants is at two stages. Stage one is where `M’ (A-3) and A-7 were involved in the pre-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 A-3, A-5 and A-8 after the submission of passport application before the authorities. The passport application was submitted in the assumed name of `SM’ which contained the photograph of `M’. The essential requirements for obtaining the passport are: passport application; proof of residence; and date of birth certificate as spoken to by PWs. 2, 3, 21 and 31. The evidence of number of witnesses which remained unimpeached brought on record as to how these documents were obtained for the benefit of `M’. [Para 29] [550-F-H; 551-A-B] 3.3 A-7, Mandal Revenue Inspector verified the residence particulars of `SM’ on the instructions of PW-5, Mandal Revenue Officer, Kurnool and submitted a false verification report based on which residence certificate was issued by PW-5. PW-37, Investigating Officer and PW-17 issued certificate to the effect that no person by name `SM’ resided in the house as earlier submitted by A-7. It is based on the said evidence, the trial court and appellate court came to the right conclusion that the prosecution established its case that A-7 gave false verification based on which residence certificate was issued by PW-5 in the name of `SM’. The trial court convicted A-7 for the offence under Section 468 IPC. The High Court held that in submitting the false verification report in respect of residence of `SM’ he may not have been aware and known that the certificate so obtained would be used for the purpose of securing the passport in the assumed name of `SM’. There is no evidence on that aspect. The High Court also concluded that by the time A-7 submitted a false verification there was nothing on record that he was hand in glove with the other accused for the purpose of cheating. The High Court upheld the acquittal of A-7 of the charge under Section 120-B IPC. The High Court found that the proper offence made against him would be one for making forged document simplicitor punishable under Section 465 IPC. The High Court was not justified in convicting A-7 at all for it had found no case against the appellant made out under Section 120-B IPC. There was 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. A-7 is acquitted for the offence under Section 465 IPC and sentence awarded is set aside. [Paras 29, 30 and 35] [551-A-E; 552-B-G; 557-B] 3.4 Regarding A-8, the Postman, Head Post Office, Kurnool, there is a clear evidence which was properly appreciated by the courts below that A-8 took the envelop containing the passport addressed to `SM’ from PW-11 representing that he knew the addressee and would deliver the same. The said article was actually entrusted to PW-11 for its delivery but A-8 took the same from PW-11 for delivery to `SM’ assumed name of `M’. The courts below found that A-8 was aware of the contents of the article. It is under those circumstances the courts below rightly concluded that the evidence available on record clearly established that he participated in the conspiracy in securing the passport for `M’ in the assumed name of `SM’. Thus, the conviction of A-8 for the offences charged is upheld. There is no reason to interfere with the view taken by the High Court. However, the sentence of one year rigorous imprisonment under each count awarded by the trial court is reduced to that of 6 months rigorous imprisonment under each count while maintaining the fine amount. [Paras 31 and 35] [552-G-H; 553-A- D; 557-D-E] 3.5 A-5, the Head Constable, submitted exhibit P15 report. PW-7, Junior Assistant in the District Police Office, Kurnool, PW-8, Inspector of Police, District Special Branch, Kurnool and PW-14, Sub-Inspector, District Special Branch, Kurnool were the material witnesses examined by the prosecution to prove the accusations leveled against 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 has proved the fact that A-5 is the person who verified the passport application particulars of `SM’ 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 `M’ to secure a passport for herself in the assumed name of `SM’. His conviction for the offences charged is upheld. However, the High Court reduced the sentence awarded by the trial court to one year rigorous imprisonment under each count while maintaining the fine imposed by the trial court. Having regard to the facts and circumstances of the instant case, the conviction of A-5 under Sections 120-B, 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 upheld. However, the sentence is reduced 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. The sentences are directed to run concurrently. [Paras 32 and 35] [553-E-H; 554-A-E; 556-F-H] 3.6 It is proved that `M’ was involved in the conspiracy at both pre- passport application stage and post-passport application stage. The conspiracy itself was hatched only with a view to secure a passport for `M’ in the assumed name of `SM’. It cannot be said that there was no evidence whatsoever against `M’ to prove her involvement for the offence punishable under Sections 120-B, 419 and 420 IPC. It is for her benefit that the entire conspiracy was 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 `SM’. There is no material on the basis of which this Court would differ with the findings and conclusions concurrently arrived at by the courts below. [Para 33] [554-F-H; 555-A-B] 3.7 The original of exhibit P50 is the passport issued by the competent authorities in India and, therefore, Section 78 (6) is not applicable to the facts of the instant case. The issuance of original of exhibit P50 passport is clearly proved. It is based on that passport that `M’ travelled abroad and entered Portugal for which she had to face a prosecution and suffer conviction and sentence. The prosecution cannot be held to be vitiated. The conviction of the appellant for the offence punishable under Sections 120-B, 419 and 420 IPC is upheld. However, the High Court reduced the sentence of imprisonment imposed on `M’. The High Court also held that she is entitled for set off of the periods of detention suffered by her in Lisbon, from 18.9.2004 to 4.6.2005 and 3.11.2005 to 10.11.2005. Having regard to the facts and circumstances of the case and the fact that she has undergone more than 2 + years of sentence, 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. [Paras 33 and 35] [555-E-H; 556-A-B; 556-D-E] Case Law Reference: (1953) SCR 730 Referred to Para 16 (1954) SCR 1150 Referred to Para 16 (1958) SCR 822 Referred to Para 17 (1915) 238US 78 Referred to Para 17 (1961) 3 SCR 107 Referred to Para 17 AIR 1965 SC 682 Referred to Para 17 (2003) 2 SCC 152 Referred to Para 18 (1915) 237 U.S. 1153 Referred to Para 19 (1922) 260 U.S. 314 Referred to Para 20 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 782 of 2007. From the Judgment & Order dated 08.03.2007 of the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1434 of 2006. With Crl. A. Nos. 783, 784 & 1357 of 2007. P.P. Malhotra, ASG, I. Venkata Narayana, Gaurave Bhargava, Niraj Gupta, V. Sridhar Reddy, V.N. Raghupathy, V. Sudeer, M.B.R.S. Raju, S. Sunita, Balaji Srinivasan, Madhu Smita Bora, Raghenth Basant, Balaji Subramanian, Arvind Kumar Sharma, D. Mahesh Babu, Ramesh Allanki for the appearing parties.

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. … Continue reading

the maintainability of the Writ Petition for quashing criminal proceedings more so when charge sheets have already been filed and the cases have been taken cognizance by the competent criminal Court and (ii) the scope of interference of this Court with the criminal proceedings. The consequential issue to be considered is whether this Court’s interference is warranted to quash the criminal proceedings in the present case.

THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18428 of 2009 9-6-2011 M.B. Rajanikanth and another The State Inspector of Police,Visakhapatnam and others Counsel for the petitioners: Sri B. Chinnapa Reddy Counsel for respondents 1and2: Sri P.Kesava Rao Counsel for respondents 3-5:Sri Sampath Prabhakar for The petitioners, who are the former employees of the Vijaya … Continue reading

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