R e p o r t a b l e
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.394 OF 2017
State of jharkhaND through sp, cbi …Appellant
VERSUS
lalu prasad @ lalu prasad Yadav …Respondent
with
CRIMINAL APPEAL NO.393 OF 2017
State of jharkhaND through s.p., cbi …Appellant
VERSUS
Sajal chakrabortY …Respondent
WITH
CRIMINAL APPEAL NO.395 OF 2017
State of jharkhaND through sp, cbi …Appellant
VERSUS
dr. jagannath mishra …Respondent
J U D G M E N T
ARUN MISHRA, J.
1. The appeals arise out of three separate judgments and orders of
learned Single Judge of High Court of Jharkhand at Ranchi discharging three
accused persons namely; Lalu Prasad Yadav, Sajal Chakraborty and Dr.
Jagannath Mishra on the ground of their conviction in one of the criminal
cases arising out of fodder scam of erstwhile State of Bihar. Applying the
provision under Article 20(2) of the Constitution of India and Section 300
of Code of Criminal Procedure, 1973 (for short ‘the Cr.PC’), the High Court
has quashed RC No.64A/96 against Lalu Prasad Yadav, four cases against Dr.
Jagannath Mishra being RC Nos.64A/96, 47A/96, 68A/96 and 38A/96 and two
cases against Sajal Chakraborty being RC Nos.20A/96 and 68A/96 on the
ground that they have been convicted in one of the cases for offences
involving the same ingredients with respect to Chaibasa treasury.
2. In the wake of large scale defalcation of public funds, fraudulent
transactions and fabrication of accounts in Animal Husbandry Department of
State of Bihar popularly known as fodder scam, Central Bureau of
Investigation (for short, ‘the CBI’) investigation had been ordered by this
Court in State of Bihar & Anr. v. Ranchi Zila Samta Party & Anr. (1996) 3
SCC 682 to investigate corruption in public administration, misconduct by
the bureaucracy, fabrication of official records, misappropriation of
public funds by an independent agency. This Court directed CBI to do
investigation and inform the Chief Justice of Patna High Court. On the re-
orgnisation of the State of Bihar by virtue of Bihar Re-organisation Act,
2000, States of Bihar and Jharkhand were formed. Question arose with
respect to the place of trial of cases i.e. whether in State of Bihar or
State of Jharkhand. A Full Bench of High Court of Patna took the view that
none of the 36 cases which were of Jharkhand to be transferred to
Jharkhand. CBI preferred appeals before this Court as well as Dr. R.K.
Rana. Total 64 cases had been registered relating to Bihar Fodder Scam. 52
cases involved withdrawal of huge sums of money from Government treasuries
falling within Jharkhand State and in 36 out of 52 cases charge-sheet had
been filed by CBI before the appointed day. This Court opined that the only
court which has the jurisdiction to try offences under Prevention of
Corruption Act is the Court of Special Judge appointed for areas within
which such offences were committed. This Court in CBI, AHD, Patna v. Braj
Bhushan Prasad & Ors. (2001) 9 SCC 432 has laid down thus :
“33. For that purpose it is useful to look at Section 3(1) of
the PC Act. It empowers the Government to appoint a Special
Judge to try two categories of offences. The first is, “any
offence punishable under this Act” and the second is, “any
conspiracy to commit or any attempt to commit or any abetment of
any of the offences specified” in the first category. So when a
court has jurisdiction to try the offence punishable under the
PC Act on the basis of the place where such offence was
committed, the allied offences such as conspiracy, attempt or
abetment to commit that offence are only to be linked with the
main offence. When the main offence is committed and is required
to be tried, it is rather inconceivable that jurisdiction of the
court will be determined on the basis of where the conspiracy or
attempt or abetment of such main offence was committed. It is
only when the main offence was not committed, but only the
conspiracy to commit that offence or the attempt or the abetment
of it alone was committed, then the question would arise whether
the Court of the Special Judge within whose area such conspiracy
etc. was committed could try the case. For our purpose it is
unnecessary to consider that aspect because the charges proceed
on the assumption that the main offence was committed.”
(Emphasis Supplied)
3. This Court in Braj Bhushan Prasad (supra) has laid down that so far
as offences under section 13(1)(c) and 13(1)(d) are concerned, the place
where the offences were committed could easily be identified as the place
where the treasury concerned was situate and laid down thus :
“37. Thus, when it is certain where exactly the offence under
Section 13 of the PC Act was committed it is an unnecessary
exercise to ponder over the other areas wherein certain allied
activities, such as conspiracy or preparation, or even the
prefatory or incidental acts were done, including the
consequences that ensued.” (Emphasis Supplied)
“42. Thus, if the PC Act has stipulated any place for trial
of the offence under that Act the provisions of the Code would
stand displaced to that extent in regard to the place of trial.
We have, therefore, no doubt that when the offence is under
Section 13(1)(c) or Section 13(1)(d) of the PC Act the sole
determinative factor regarding the court having jurisdiction is
the place where the offence was committed.”
(Emphasis Supplied)
4. With respect to adoption of evidence in various cases as evidence
with respect to conspiracy was to be common, this Court has observed in
Braj Bhushan Prasad (supra) thus :
“50. To avoid the confusion and repetition of the exercise,
we make it clear that the evidence already recorded in any of
the 36 cases will be treated as evidence recorded by the proper
court having jurisdiction. In other words, the Special Judge
need not call the witnesses already examined over again for
repetition of what has already come on record.”
This Court has clearly observed that the place of trial has to be on
the basis of commission of offence where the defalcation has been made and
not on the basis of place of conspiracy. Submission to the contrary had
been negatived.
5. Subsequently, prayer was made for amalgamation of six cases which
were pending before Special Courts in the State of Jharkhand. Matter was
considered by this Court with respect to joint trial of cases including RC
Nos.20A/96 and 64A/96 which were pending before the Special Judge at Patna.
This Court considered the matter in Lalu Prasad alias Lalu Prasad Yadav v.
State through CBI (A.H.D.), Ranchi, Jharkhand (2003) 11 SCC 786. It was
urged on behalf of Lalu Prasad Yadav, Dr. Jagannath Mishra and others that
it was a case of only a single conspiracy and therefore there should be
amalgamation of trials as per the provisions contained in section 223
Cr.PC. This Court opined that charges were not framed at that stage. It is
for trial court to decide the prayer for joint trial. There were large
number of accused persons. It was also observed that main offence was under
the PC Act and conspiracy was an allied offence. This Court laid down thus
:
“11. ….Thus it has already been held, by a three-Judge Bench
of this Court, that the main offences were under the Prevention
of Corruption Act. It has been held that the offence of
conspiracy is an allied offence to the main offence under the
Prevention of Corruption Act. The cases are before the Special
Judges because the main offences are under the Prevention of
Corruption Act. The main offence under the Prevention of
Corruption Act in each case is in respect of the alleged
transaction in that case. As conspiracy is only an allied
offence, it cannot be said that the alleged overt acts are in
the course of the same transaction. We are bound by this
decision. In any case we see no reason to take a different view.
As it has already been held that the charge of conspiracy is
only an allied charge and that the main charges (under the
Prevention of Corruption Act) are in respect of separate and
distinct acts i.e. monies siphoned out of different treasuries
at different times, we fail to see as to how these cases could
be amalgamated.”
“14. Before we part it must be mentioned that it had been
complained that the appellants would be forced to hear the same
evidence 5/6 times. If the appellants or any of them feel
aggrieved by this and if they so desire, they may apply to the
Special Judges that evidence recorded in one case and documents
marked as an exhibit in one case be used as evidence in other
cases also. This would obviate their having to hear the same
evidence in 5/6 different cases. We are sure that if such an
application is made, the same will be considered by the Special
Judge on its merit, after hearing all the other accused”.
(Emphasis Supplied)
This Court had noted the grievance that accused persons would be
forced to hear the same evidence 5-6 times, but ordered that they may apply
to the Special Judges that evidence recorded in one case and the document
marked as an exhibit in one case be used as evidence in other cases also.
6. Lalu Prasad Yadav was prosecuted and convicted in RC No.20(A)/96 with
respect to aforesaid period 1.4.1994 to 31.1.1995 relating to Chaibasa
treasury. The charges had been framed for commission of offence of criminal
conspiracy punishable under section 120B read with sections 409, 420, 467,
468, 471, 477, 477A of the Indian Penal Code, 1860 (for short, ‘the IPC’)
and section 13(1)(c) read with section 13(2) of the Prevention of
Corruption Act, 1988 (for short ‘the PC Act’) where defalcation/general
conspiracy was alleged between 1988 and 1996 and included various
treasuries of erstwhile State of Bihar. However, in RC No.20(A)/96 with
respect to Chaibasa treasury, the specific charge was with respect to the
period 1.4.1994 to 31.1.1995 for facilitating dishonest and fraudulent
withdrawal of Government funds to the tune of Rs.37,70,39,743/-. The case
RC No.64(A)/96 which is quashed relates to Deoghar whereas the amount
misappropriated is Rs.85 lakhs as against actual allotment of funds for
district of Rs.4,73,400/- with the help of 250 vouchers and 17 fake
allotment letters. Misappropriation is alleged for the period 1991 to 1994.
There are 38 accused persons and one of them is Lalu Prasad Yadav.
7. In the case against Dr. Jagannath Mishra he has been convicted in RC
No.20(A)/96 with respect to Chaibasa treasury in respect of
misappropriation of Rs.37.70 crores for the period 1994-95 whereas the
prosecution has been quashed with respect to RC No.38(A)/96 relating to
misappropriation of Rs.3.76 crores from Dumka treasury as against actual
allotment of Rs.1.5 lakhs with the help of 96 fake vouchers in the
financial year 1995-96. In case RC No.47(A)/96 misappropriation alleged is
that of Rs.139.35 crores against actual allotment of Rs.1,97,90,000 by fake
vouchers numbering 4845,502 fake allotment orders and 2367 fake supply
orders in financial years 1991 to 1995. RC No.68(A)/96 relates to Chaibasa
treasury regarding misappropriation of Rs.37.62 crores against actual
allotment of Rs.7.10 lakhs with the help of 495 fake vouchers, 67 fake
allotment letters and 3870 fake supply orders during the financial year
1992-93.
8. Sajal Chakraborty had been convicted by Trial Court in RC No.51(A)/96
relating to Chaibasa treasury regarding Rs.39.92 crores misappropriation
against actual allotment of Rs.4,09,750/- with the help of 580 vouchers,
4789 fake supply orders for the financial year 1993-94 on 14.7.2008 but
acquitted by the High Court in appeal. The prosecution has been quashed
vis a vis Sajal Chakraborty in RC No.20(A)/96 relating to Chaibasa Treasury
and RC No.68(A)/96 relating to Chaibasa Treasury for misappropriation of
Rs.37.62 crores during the financial year 1992-93.
9. It was submitted on behalf of CBI that though the same learned Judge
of the High Court has quashed the proceedings in the aforesaid cases with
respect to Lalu Prasad Yadav, Dr. Jagannath Mishra and Sajal Chakraborty
owing to their conviction in one of the cases, however, with respect to
accused Dr. R.K. Rana, the same Judge in criminal W.P. No.226/2011 has
declined to quash the criminal prosecution in pending six other cases owing
to his conviction in RC No.22A/96. Prayer for quashing of criminal
prosecution in RC Nos.20A/96, 33A/96, 38A/96, 47A/96, 64A/96 and 68A/96 had
been declined but the same very cases have been quashed by taking a
contrary view in the impugned judgment and order.
10. It was submitted by Shri Ranjit Kumar, learned Solicitor General
appearing for CBI that as the offences relate to different treasuries for
different financial years, for different amounts running into several
crores with the help of different fake allotment letters, supply orders,
different falsification of books of accounts, different suppliers, Article
20(2) of Constitution of India is not attracted as the offences cannot be
said to be the same. Similarly the provisions of section 300 Cr.PC are not
attracted. They are different offences and transactions. Reliance has been
placed upon section 212(2) of the Cr.PC so as to contend that the period of
charge for offence of misappropriation shall not exceed one year. There has
to be different trials for different periods. Reference has also been made
to sections 219, 220 and 221 of Cr.PC. There is difference between the same
kind and the same offence. In different treasuries, distinct offences have
been committed though of same kind by different sets of accused persons.
There have to be separate charges for distinct offences and, therefore
separate trials are required to be held. Principle of issue estoppel would
not arise as parties are different, duties were different for different
times. Judgment of conviction has also been placed on record by CBI.
11. Prayer has also been made to condone the delay in filing the appeals
in this Court for which reliance has been placed upon the
affidavits/explanation which has been offered. Thus, it was urged that
sufficient ground has been made out so as to condone the delay.
12. It was submitted by Shri Ram Jethmalani, learned senior counsel
appearing on behalf of respondent Lalu Prasad Yadav that the delay has not
been satisfactorily explained. There is no sufficient cause so as to
condone the delay. CBI has acted in flagrant violation of the provisions
contained in CBI Manual. Thus, no case is made out so as to condone the
delay.
13. It was contended by Shri Surendra Singh, learned senior counsel on
behalf of Lalu Prasad Yadav that the charge for conspiracy against Lalu
Prasad Yadav with respect to cases at Chaibasa, Patna, Ranchi, Bhagalpur
and other places of Bihar, Calcutta and Delhi, was not specific to the
period of defalcation. The charges were general for the period from 1988 to
1996. Thus, it was submitted that evidence has been adduced with respect to
the general conspiracy between 1988 and 1996 which included the Treasuries
in question in the cases where prosecution has been quashed. It was not the
case put up under section 313 Cr.PC that there was separate conspiracy for
the period 1.4.1994 to 30.1.1995. In RC No.64(A)/96 similar charges for
conspiracy for the years 1988 to 1996 at Deoghar, Dumka, Ranchi, Patna and
other places had been framed. In pursuance thereof an amount of
Rs.89,27,164.15/- has been withdrawn from Deogarh Treasury. As the
conspiracy for Chaibasa and Deogarh is the same the evidence has already
been adduced in the case relating to Chaibasa treasury. Thus for one and
the same conspiracy respondent Lalu Prasad Yadav cannot be tried over again
in view of Article 20(2) and section 300 Cr.PC. It was further contended
that the respondent is being prosecuted in two separate cases arising out
of the Chaibasa Treasury namely R.C. No.68 (A)/1996 and R.C. No.20
(A)/1996. The first is when the money was siphoned out of the Treasury in
1992-93 and the second is for the period from 1.4.1994 to 30.1.1995 when
the money was withdrawn from the Treasury. In other words, it is the
prosecution case itself that between 1992-1995 money was being regularly
siphoned out of the Chaibasa Treasury. The charge for conspiracy also
states that the conspiracy was from 1990-1997. This is further proof of the
fact that the conspiracy referred to by the prosecution for the Treasuries
of Chaibasa and Deogarh is one and the same conspiracy and not different or
distinct conspiracies. Counsel has also attracted our attention to the
charges pertaining to the Treasuries of Dumka (R.C. 38 (A)/1996) and
Doranda (R.S. 47A)/1996. The charges framed for withdrawal of money from
these two treasuries is from 1988-1996 and 1990-1996 respectively and the
period of conspiracy has been shown from 1990-1997 and 1991-1996
respectively.
14. It was also urged by Shri Surendra Singh, learned senior counsel that
as per prosecution itself, there was a single conspiracy that started in
the year 1988 and continued till 1996. The result of investigation in RC
20(A)/96 and RC 64(A)/96 conclusively proves that there was a single
conspiracy with respect to defalcation at various Treasuries. Once accused
has been punished for the conspiracy for the period 1988 to 1996 he cannot
be punished again for the same offence. Without much ado and more evidence,
the trial of the accused for offence under section 120B IPC is barred by
Article 20(2) and section 300 Cr.PC. It was also urged that there was a
core group of 20 common accused in all the prosecutions i.e. nine
politicians and eleven senior administrative officers who allegedly hatched
the main conspiracy to siphon off the funds from treasuries earmarked for
Animal Husbandry Department of erstwhile State of Bihar. The modus operandi
employed by the conspirators was identical for all the treasuries and funds
were siphoned off as and when an opportunity occurred. Since there is no
evidence that separate conspiracies were hatched to defalcate the funds
from different treasuries at different points of time second prosecution is
not permissible. Reference has been made to Laloo Prasad @ Laloo Prasad
Yadav v. State of Jharkhand (2002) 9 SCC 372 so as to contend that there
was single general conspiracy, the offences of withdrawal of money from
different treasuries including the treasuries of Chaibasa and Deogarh were
merely offshoots of the main conspiracy as observed by this Court while
granting bail to Lalu Prasad Yadav. Learned senior counsel has also relied
upon decision in Mohd. Hussain Umar Kochra etc. v. K.S. Dalipsinghji & Anr.
AIR 1970 SC 45, Srichand K. Khetwani v. The State of Maharashtra AIR 1967
SC 450; and S. Swamirathnam v. State of Madras AIR 1957 SC 340 so as to
point out that the case of single general conspiracy is opposed to a number
of separate conspiracies. Since there was a single conspiracy in the
instant case, accused cannot be tried and punished for defalcations made in
different periods separately. So far as treasury payment is concerned there
is no evidence against Lalu Prasad Yadav. Besides, it is a case where there
is no evidence against the accused.
15. It was submitted by Shri Adit S. Pujari, learned counsel appearing on
behalf of Sajal Chakraborty, that the main case set up against the
respondent is that he did not take any steps to find out the cause of heavy
withdrawal of Rs.50.56 lakhs on a single day by co-accused Dr. B.N. Sharma.
He was Deputy Commissioner, Chaibasa from September, 1992 to July, 1995. He
did not exercise control to prevent misappropriation of Government funds
from Chaibasa treasury. The formal charge is identical in RC Nos.51(A),
20(A) and 68(A). It was further alleged by the prosecution that the accused
had developed a nexus with co-accused persons and had obtained from co-
accused as a reward for services rendered – a laptop and two printers for
himself. The accused Sajal Chakraborty was convicted by the trial court for
certain offences under sections 409, 420, 465, 467, 468, 471, 477A IPC. His
conviction has been ultimately set aside by the High Court of Jharkhand
vide judgment and order dated 3.8.2012 in Criminal Appeal No.979 of 2009 in
which it has been held that there was no mechanism with the Deputy
Commissioner to check illegal withdrawal from treasury. Copy of allotment
letter of funds to different departments was not sent to the petitioner.
There was no other evidence direct or circumstantial to establish that the
accused did certain acts for facilitating other accused to draw money
illegally. There is no evidence of nexus or association vis a vis the other
accused. No one had seen installation of laptop and computer in the
residence of the accused and so the allegation of receiving the same was
also discarded. Learned counsel has placed reliance upon T.T. Anthony v.
State of Kerala (2001) 6 SCC 181, Amitbhai Anilchandra Shah v. C.B.I.
(2013) 6 SCC 348. He has also referred to section 212 Cr.PC. FIR relating
to Chaibasa is for same transactions though for different financial years
but for the bar under section 212(2) Cr.PC, it would have constituted one
offence, as such section 300(1) would apply. In similar circumstances in
Emperor v. Jhabbar Mull Lakkar 1922 ILR 924, Sidh Nath Awasthi v. Emperor
1920 ILR 17, prosecution in subsequent cases had been quashed. Section
220(1) Cr.PC would apply to the present case. In fact series of acts formed
the same transaction. Thus there cannot be subsequent trial. Ingredients of
offence in all the 3 cases are the same as such there cannot be different
trials. It was also submitted that the principle of issue estoppel is
attracted. Same issues cannot be agitated afresh in the cases which are
settled by prior litigation. The issue of estoppel stands merged in the
principles of Autrefois acquit and Autrefois convict enshrined in Article
20(2) and section 300 Cr.PC.
16. The main question for consideration is whether in view of Article
20(2) of Constitution of India and section 300 Cr.PC, it is a case of
prosecution and punishment for the “same offence” more than once. No doubt
about it that the general conspiracy had been hatched as alleged for the
period 1988 to 1996 but defalcations are from different treasuries for
different financial years by exceeding the amount of each year which was
allocated for Animal Husbandry Department for each of the district for the
purpose of animal husbandry. The amount involved is different, fake
vouchers, fake allotment letters, fake supply orders had been prepared with
the help of different sets of accused persons. Though there is one general
conspiracy, offences are distinct for different periods. Question arises
whether there is one general conspiracy pursuant to which various
defalcations of different amounts have been made running into several years
from different treasuries, by different sets of accused persons. Whether
there could have been only one trial or more than one. Whether legal
requirement is for one trial or more than one in such cases. Article 20(2)
of the Constitution is extracted hereunder :
“20. (2) No person shall be prosecuted and punished for the
same offence more than once.”
17. Article 20(2) says that no person shall be prosecuted and punished
for the same offence more than once. This is called the doctrine of double
jeopardy. The objective of the Article is to avoid harassment, which may be
caused by successive criminal proceedings, where the person has committed
only one crime. There is a law maxim related to this, nemo debet bis
vexari. This means that no man shall be put twice in peril for the same
offence. There are two aspects of doctrine of jeopardy viz. Autrefois
convict and Autrefois acquit. Autrefois convict means that the person has
been previously convicted in respect of the same offence. Autrefois acquit
means that the person has been acquitted on a same charge on which he is
being prosecuted. Constitution bars double punishment for the same offence.
The conviction for such offence does not bar for subsequent trial and
conviction for another offence and it does not matter even if some
ingredients of these two offences are common.
Section 300 Cr.P.C. is extracted hereunder :
“Section 300. Person once convicted or acquitted not to be
tried for same offence.--
(1) A person who has once been tried by a Court of competent
jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence, nor
on the same facts for any other offence for which a different
charge from the one made against him might have been made under
sub-section (1) of section 221, or for which he might have been
convicted under sub- section (2) thereof.
(2) A person acquitted or convicted of any offence may be
afterwards tried, with the consent of the State Government, for
any distinct offence for which a separate charge might have been
made against him at the former trial under sub- section (1) of
section 220.
(3) A person convicted of any offence constituted by any act
causing consequences which, together with such act, constituted
a different offence from that of which he was convicted, may be
afterwards tried for such last- mentioned offence, if the
consequences had not happened, or were not known to the Court to
have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted
by any acts may, notwithstanding such acquittal or conviction,
be subsequently charged with, and tried for, any other offence
constituted by the same acts which he may have committed if the
Court by which he was first tried was not competent to try the
offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried
again for the same offence except with the consent of the Court
by which he was discharged or of any other Court to which the
first- mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of
section 26 of the General Clauses Act, 1897, (10 of 1897) or of
section 188 of this Code.”
18. Section 300 refers to sections 220 and 221 Cr.PC. No doubt it appears
that a person who has been convicted or acquitted of the “same offence”
cannot be tried again considering the aforesaid provisions. Section 220(1)
provides that if one series of acts is so connected together as to form the
same transaction, more offences than one are committed by the same person,
he may be charged with and tried at one trial for every such offence.
Section 220(1) is extracted hereunder :
“220. Trial for more than one offence.--(1) If, in one series of
acts so connected together as to form the same transaction, more
offences than one are committed by the same person, he may be
charged with, and tried at one trial for, every such offence.”
19. Section 221(1) is applicable where it is doubtful what offence has
been committed. When a single act or series of acts is of such a nature
that it is doubtful which of several offences the facts which can be proved
would constitute, the accused may be charged with having committed all or
any of such offences and such charges can be tried together.
20. Chapter XVII deals with the form of charges. Section 212 deals with
contents of charge, e.g., particulars of time, place and person. Section
212 is extracted hereunder :
“212. Particulars as to time, place and person.--(1) The charge
shall contain such particulars as to the time and place of the
alleged offence, and the person (if any) against whom, or the
thing (if any) in respect of which, it was committed, as are
reasonably sufficient to give the accused notice of the matter
with which he is charged.
(2) When the accused is charged with criminal breach of trust or
dishonest misappropriation of money or other movable property,
It shall be sufficient to specify the gross sum or, as the case
may be, describe the movable property in respect of which the
offence is alleged to have been committed, and the dates between
which the offence is alleged to have been committed, without
specifying particular items or exact dates, and the charge so
framed shall be deemed to be a charge of one offence within the
meaning of section 219;
Provided that the time included between the first and last
of such dates shall not exceed one year.” (Emphasis Supplied)
21. When the accused is charged with criminal breach of trust or
dishonest appropriation of money or other immovable property, it shall be
sufficient to specify the gross sum or describe the moveable property in
respect of which offence is alleged to have been committed, and the dates
between which the offence is alleged to have been committed, without
specifying particular items of exact dates, and the charge so framed shall
be deemed to be a charge of one offence within the meaning of section 219
provided that the time included between the first and last of such dates
shall not exceed one year. A charge shall contain such particulars as to
time and place of the alleged offence and time period shall not exceed one
year. Time period and place of the offence is material in such cases.
22. Section 219 Cr.PC provides that three offences of same kind within a
year may be charged together. When a person is accused of more offences
than one of the same kind committed within a period of one year, he may be
charged with, and tried at one trial for, any number of them not exceeding
three for same kind of offence under section 219(1). Section 219 is
reproduced hereunder :
“S.219. Three offences of same kind within year may be charged
together.--
(1) When a person is accused of more offences than one of the
same kind committed within the space of twelve months from the
first to the last of such offences, whether in respect of the
same person or not, he may be charged with, and tried at one
trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with
the same amount of punishment under the same section of the
Indian Penal Code (45 of 1860 ) or of any special or local law:
Provided that, for the purposes of this section, an offence
punishable under section 379 of the Indian Penal Code (45 of
1860 ) shall be deemed to be an offence of the same kind as an
offence punishable under section 380 of the said Code, and that
an offence punishable under any section of the said Code, or of
any special or local law, shall be deemed to be an offence of
the same kind as an attempt to commit such offence, when such an
attempt is an offence.”
23. It is apparent from section 212 read with section 219 that there have
to be separate trials for different years covering the period of more than
one year. Same kind of offence is a different thing than the “same offence”
for the purpose of sections 219, 220 or 300. The scheme of law is clear
that separate charges for distinct offences must be framed separately and
they cannot be clubbed together for more than one year.
24. This Court in Natwar Lal Sakar Lal Mody v. The State of Bombay 26
(1984) DLT 64 considered the question of joint trial of persons and
offences for conspiracy as per provisions contained in section 239(d) of
the old Cr.PC. This Court has laid down that separate trial is the rule and
joint trial is an exception. Joint trial would be an irregular exercise of
discretion if a court allows innumerable offences spread over a long period
of time and committed by a large number of persons to be under the
protecting wings of an all-embracing conspiracy, and if each or some of the
offences can be separately tried, it would be appropriate and lawful. Joint
trial prolongs the trial and causes waste of judicial time and complicates
the matter which might otherwise be simple, and it would confuse the
accused and cause prejudice to them. Court should not be overzealous to
provide a cover of conspiracy for a number of offences unless it is
satisfied that the persons who committed separate offences were parties to
the conspiracy and committed the separate acts pursuant to conspiracy. This
Court has laid down thus :
“11. This discussion leads us to the following legal position.
Separate trial is the rule and joint trial is an exception.
While Section 239 of the Code of Criminal Procedure allows a
joint trial of person and offences within defined limits, it is
within the discretion of the Court to permit such a joint trial
or not, having regard to the circumstances of each case. It
would certainly be an irregular exercise of discretion if a
Court allows an innumerable number of offences spread over a
long period of time and committed by a large number of persons
under the protecting wing of all-embracing conspiracy, if each
or some of the offences can legitimately and properly form the
subject-matter of a separate trial; such a joint trial would
undoubtedly prolong the trial and would be a cause of
unnecessary waste of judicial time. It would complicate matters
which might otherwise be simple; it would confuse accused and
cause prejudice to them, for more often than not accused who
have taken part in one of the minor offences might have not only
to undergo the long strain of protracted trial, but there might
also be the likelihood of the impact of the evidence adduced in
respect of other accused on the evidence adduced against him
working to his detriment. Nor can it be said that such an
omnibus charge or charges would always be in favour of the
prosecution for the confusion introduced in the charges and
consequently in the evidence may ultimately benefit some of the
accused, as a clear case against one or other of the accused may
be complicated or confused by the attempt to put it in a proper
place in a larger setting. A Court should not be overzealous to
provide a cover of conspiracy for a number of offences unless it
is clearly satisfied on the material placed before it that there
is evidence to prove prima facie that the persons who committed
separate offences were parties to the conspiracy and they
committed the separate acts attributed to them pursuant to the
object of the said conspiracy.” (Emphasis Supplied)
25. This Court in Ranchhod Lal v. State of Madhya Pradesh AIR 1965 SC
1248 has also considered the question of joint trial in the case of
criminal breach of trust. It has been observed that normal rule is that
there should be a charge for each distinct offence. Court is authorized to
lump up the various items with respect to which criminal breach of trust
was committed and to mention the total amount misappropriated within a year
in the charge. When so done, the charge is deemed to be the charge of one
offence. This Court has laid down that a separate trial with respect to
each distinct offence of criminal breach of trust with respect to an
individual item is the correct mode of proceeding with the trial of an
offence of criminal breach of trust. This Court has laid down thus :
“(14.) Section 222, Cr. P.C. reads :
"(1) The charge shall contain such particulars as to the time
and place of the alleged offence, and the person (if any)
against whom, or the thing (if any) in respect of which, it was
committed, as are reasonably sufficient to give the accused
notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or
dishonest misappropriation of money, it shall be sufficient to
specify the gross sum in respect of which the offence is alleged
to have been committed, and the dates between which the offence
is alleged to have been committed, without specifying particular
items or exact dates, and the charge so framed shall be deemed
to be a charge of one offence within the meaning of S. 234:
Provided that the time included between the first and last
of such dates shall not exceed one year."
Sub-section (2) is an exception to meet a certain contingency
and is not the normal rule with respect of framing of a charge
in cases of criminal breach of trust. The normal rule is that
there should be a charge for each distinct offence as provided
in S. 233 of the Code. S. 222 mentions what the contents of the
charge should be. It is only when it may not be possible to
specify exactly particular items with respect to which criminal
breach of trust took place or the exact date on which the
individual items were misappropriated or in some similar
contingency, that the Court is authorised to lump up the various
items with respect to which criminal breach of trust was
committed and to mention the total amount misappropriated with a
year in the charge. When so done, the charge is deemed to be the
charge of one offence. If several distinct items with respect to
which criminal breach of trust has been committed are not so
lumped together, no illegality is committed in the trial of
those offences. In fact a separate trial with respect to each
distinct offence of criminal breach of trust with respect to an
individual item is the correct mode of proceeding with the trial
of an offence of criminal breach of trust.
(15.) Learned counsel for the appellant also relied on S. 234,
Code of Criminal Procedure and urged that three offences of
criminal breach of trust could have been tried at one trial as
sec. 234 provides that when a person is accused of more offences
than one of the same kind committed within the space of twelve
months from the first to the last of such offences, whether in
respect of the same person or not, he may be charged with, and
tried at one trial for any number of them not exceeding three.
This again is an enabling provision and is an exception to sec.
233, Code of Criminal Procedure If each of the several offences
is tried separately, there is nothing illegal about it. It may
also be mentioned that the total number of items charged in the
four cases exceeded three.
(16.) Lastly, reference was made, on behalf of the appellant to
sec. 235, Code of Criminal Procedure and it was urged that all
these offences were committed in the course of the same
transaction, and therefore, they should have been tried at one
trial. Assuming, without deciding, that these offences could be
said to have been committed in the course of the same
transaction, the separate trial of the appellant for certain
specific offences is not illegal. This section too is an
enabling section.”
26. In R. v. Griffith 1965 (2) AER 448 it has been laid down that a
conspiracy should be tried separately to substantive counts. The Court of
Appeal in England has laid down thus :
“9. The practice of adding what may be called a rolled up
conspiracy charge to a number of counts of substantive offences
has become common. We express the very strong hope that this
practice will now cease and that the courts will never again
have to struggle with this type of case, where it becomes almost
impossible to explain to a jury that evidence inadmissible
against the accused on the substantive count may be admissible
against him on the conspiracy count once he is shown to be a
conspirator. We do no believe that most juries can ever really
understand the subtleties of the situation. In our judgment,
except in simple cases, a conspiracy count (if one is needed at
all) should be tried separately to substantive counts.”
27. In State of A P v. Cheemalapti Ganeswara Rao & Anr. (1964) 3 SCR 297
this Court dealt with misjoinder of parties under section 239 of the old
Cr.P.C. This Court with respect to ‘same transaction’ has observed thus :
“10. Whether a transaction can be regarded as the same would
necessarily depend upon the particular facts of each case and it
seems to us to be a difficult task to undertake a definition of
that which the Legislature has deliberately left undefined. We
have not come across a single decision of any Court which the
Legislature has embarked upon the difficult task of defining the
expression. But it is generally thought that where there is
proximity of time or place or unity of purpose and design or
continuity of action in respect of a series of acts, it may be
possible to infer that they form part of the same transaction.
It is, however, not necessary that every one of these elements
should co-exist for a transaction to be regarded as the same.”
Further, it was held that:
“Where, however, several offences are alleged to have been
committed by several accused persons it may be more reasonable
to follow the normal rule of separate trials. But here, again,
if those offences are alleged not be wholly unconnected but as
forming part of the same transaction the only consideration that
will justify separate trials would be the embarrassment or
difficulty caused to the accused persons in defending
themselves.” (Emphasis supplied)
When several offences are alleged to have been committed by several
accused persons this Court has laid down that normal rule is of separate
trials.
28. In Sardar Sardul Singh Caveeshar v. State of Maharashtra (1964) 2 SCR
378, this Court considered the question of conspiracy in a case where the
accused had first defrauded one Jupiter company and thereafter another
company called Empire. Argument was raised that once having been convicted
of conspiracy qua the Jupiter case, he could not be convicted qua company
called Empire. This Court relying upon judgment in State of Bombay v. S.L.
Apte (1961) 3 SCR 107 has laid down thus :
“In the present case, applying the test laid down by this
Court, the two conspiracies are not the same offence: the
Jupiter conspiracy came to an end when its funds were
misappropriated. The Empire conspiracy was hatched
subsequently, though its object had an intimate connection with
the Jupiter in that the fraud of the Empire was conceived and
executed to cover up the fraud of the Jupiter. The two
conspiracies are distinct offences. It cannot even be said that
some of the ingredients of both the conspiracies are the same.
The facts constituting the Jupiter conspiracy are not the
ingredients of the offence of the Empire conspiracy, but only
afford a motive for the latter offence. Motive is not an
ingredient of an offence. The proof of motive helps a Court in
coming to a correct conclusion when there is no direct evidence.
Where there is direct offence for implicating an accused in an
offence, the absence of proof of motive is not material. The
ingredients of both the offences are totally different and they
do not form the same offence within the meaning of Art.20(2) of
the Constitution and, therefore, that Article has no relevance
to the present case.”
29. In Gopal Prasad Sinha v. State of Bihar (1970) 2 SCC 905 offence was
committed between two different periods when the accused was working as
Cashier. On the basis of acquittal in the first offence, plea of issue
estoppel was raised for the second period during trial. This Court had
rejected the submission thus :
“7. In our opinion, the High Court came to the correct
conclusion. The basic principle underlying the rule of issue-
estoppel is that the same issue of fact and law must have been
determined in the previous litigation. The question then
arises: Was it the same issue of fact which was determined in
the earlier case? A person may be acting as a cashier at one
period and may not be acting as a cashier at another period,
especially as in this case it was found that the appellant had
never been appointed as a cashier. He was a temporary senior
accounts clerk who was alleged to be doing the work of a
cashier. If there is any likelihood of facts or conditions
changing during the two periods which are under consideration
then it is difficult to say that the prosecution would be bound
by the finding in a previous trial on a similar issue of fact.
It seems to us that the later finding must necessarily be in
contradiction of the previous determination. There can be no
such contradiction if the periods are different and the facts
relating to the carrying on of the duties of a cashier are
different.”(Emphasis supplied)
30. It is pertinent to mention here that this Court in this very case has
negatived the contention of joint trials and amalgamation of trials in the
aforesaid decisions. When parties are different, issue of estoppel would
not arise. The substantive offence is that of defalcation. Conspiracy was
an allied offence to the substantive offence.
31. Section 218 deals with separate charges for distinct offences.
Section 219 quoted above, provides that three offences of the same kind can
be clubbed in one trial committed within one year. Section 220 speaks of
trial for more than one offence if it is the same transaction. In the
instant case it cannot be said that defalcation is same transaction as the
transactions are in different treasuries for different years, different
amounts, different allotment letters, supply orders and suppliers. Thus the
provision of section 221 is not attracted in the instant case. There are
different sets of accused persons in different cases with respect to
defalcation.
32. There may be a conspiracy in general one and a separate one. There
may be larger conspiracy and smaller conspiracy which may develop in
successive stages involving different accused persons. In the instant case
defalcations have been made in various years by combination of different
accused persons. Thus, there can be separate trials on the basis of law
laid down by this Court in Ram Lal Narang v. State (Delhi Administration)
(1979) 2 SCC 322 wherein this Court has laid down thus :
“11. ….The offences alleged in the first case were Section 120-
B read with Section 420 and Section 406, Indian Penal Code,
while the offences alleged in the second case were Section 120-B
read with Section 411, Indian Penal Code and Section 25 of the
Antiquities and Art Treasures Act, 1972………. We are clear, in the
present case, that the conspiracies which are the subject-matter
of the two cases cannot be said to be identical though the
conspiracy which is the subject-matter of the first case may,
perhaps, be said to have turned out to be part of the conspiracy
which is the subject-matter of the second case. As we mentioned
earlier, when investigation commenced in FIR. R.C. 4 of 1976,
apart from the circumstance that the property involved was the
same, the link between the conspiracy to cheat and to
misappropriate and the conspiracy to dispose of the stolen
property was not known.”
33. In the instant case, offences are not the same offence. There can be
different trials for the same offence if tried under two different
enactments altogether and comprised of two different offences under
different Acts/statutes without violation of the provisions of Article
20(2) or Section 300 Cr.PC. This Court has decided the issue in various
cases:-
(a) In Kharkan & Ors. v. The State of U.P. (1964) 4 SCR 673
this Court has laid down thus :
“Even if the two incidents could be viewed as
connected so as to form parts of one transaction it is
obvious that the offences were distinct and required
different charges. The assault on Tikam in fulfilment of
the common object of the unlawful assembly was over when
the unlawful assembly proceeded to the house of Tikam to
loot it. The new common object to beat Puran was formed at
a time when the common object in respect of Tikam had been
fully worked out and even if the two incidents could be
taken to be connected by unity of time and place (which
they were not), the offences were distinct and required
separate charges. The learned Sessions Judge was right in
breaking up the single charge framed by the magistrate and
ordering separate trials. In this view the prior acquittal
cannot create a bar in respect of the conviction herein
reached.” (Emphasis Supplied)
(b) In Maqbool Hussain v. The State of Bombay (1953) SCR 730
this Court has laid down thus :
“Appellant had smuggled gold into India and was booked u/s
167(8) of the Sea Customs Act, 1878 and subsequently when
no one came to claim the gold, he was charged 11/8 8 0f
FERA. He challenged this as violation of Art. 20(2).
The Court analysed the scope of Art. 20(2) and held that
the “prosecution” must be before a court of law or judicial
tribunal. The plea of double jeopardy was discarded as it
was held that the Customs authorities were not a judicial
tribunal or court. For double jeopardy, 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
and not that the facts relied on by the prosecution are the
same in the two trials.”
(c) In State of Bombay v. S.L. Apte (1961) 3 SCR 107 a
Constitution Bench of this Court has laid down as to the issue
regarding conviction under section 409 IPC and section 105 of
Insurance Act. The submission of double jeopardy was repelled
with respect to offences under section 11 of IPC and section 105
of Insurance Act. It was held that the offences under both the
Acts are distinct due to their ingredients. So as to constitute
double jeopardy two offences should be identical.
(d) In T.S. Baliah v. T.S. Rengachari (1969) 3 SCR 65, appellant
was sought to be prosecuted under section 177 IPC and section 52
of Income Tax Act, 1922 for furnishing wrong information in his
tax returns. On consideration of section 26 of General Clauses
Act, this Court held that the provision did not provide a bar on
trial and conviction for the same offence under more than one
enactment in case ingredients of offences are distinct. It only
barred double punishment and not double conviction.
(e) In V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467 the
question arose whether acquittal of an accused charged with
having committed the offence punishable under section 111 read
with section 135 of Customs Act, 1969 created a legal bar to the
accused, subsequently being prosecuted under section 85 of the
Gold (Control) Act, 1968. It was held that the ingredients of
offence under each of the enactments were quite different. The
Court applied the test developed in Maqbool Hussain (supra) and
held the two offences to be different in scope and contents of
their ingredients. The Court also relied upon S.L. Apte’s
decision (supra) and observed that what is necessary is to
analyse the ingredients of the two offences and not the
allegations made in two complaints. No doubt about it that
there can be separate offences but ingredients would remain same
under penal provision but that would also not make out a case of
violating the provisions of Article 20(2) of the Constitution
and Section 300 Cr.P.C.
(f) In case ingredients of the offences to be tried separately
arise out of the same offence, there can be separate trials
under two enactments, if the ingredients constituting two
offences are different under different Acts, there is no bar for
separate trials. In State of Bihar v. Murad Ali Khan & Ors.
(1988) 4 SCC 655 it was held :
“The expression "any act or omission which constitutes any
offence under this Act" in Section 56 of the Wild Life
(Protection) Act, 1972 merely imports the idea that the
same act or omission might constitute an offence under
another law and could be tried under such other law or laws
also. Further held that, if there are two distinct and
separate offences with different ingredients under two
different enactments. a double punishment is not barred.
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 the IPC and at the same time
constitute an offence under any other law.”
(g) In State of Rajasthan v. Hat Singh & Ors. (2003) 2 SCC 152
this Court was dealing with vires of Rajasthan Sati (Prevention)
Act, 1987. It was urged that sections 5 and 6 of new Sati Act
were overlapping. It was held that with regard to Article 20(2)
that subsequent trial or a prosecution and punishment are not
barred if the ingredients of two offences are distinct. There
can be separate offences from same set of facts and hence no
double jeopardy.
(h) In Monica Bedi v. State of Andhra Pradesh (2011) 1 SCC 284
this Court considered the meaning of the expression “same
offence” employed in Article 20(2) and observed that 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. This Court has observed thus :
“26. What is the meaning of the expression used in Article
20(2) “for the same offence”? What is prohibited under
Article 20(2) is, that 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. ….
x x x x x
29. 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 they did not form the same offence.”
(i) In Sangeetaben Mahendrabhai Patel v. State of M.P. (2012) 7
SCC 621, with respect to double jeopardy, this Court has laid
down thus :
“33. In view of the above, the law is well settled that in
order to attract the provisions of Article 20(2) of the
Constitution i.e. doctrine of autrefois acquit or
Section 300 Code of Criminal Procedure. or
Section 71 Indian Penal Code or Section 26 of General
Clauses Act, ingredients of the offences in the earlier
case as well as in the latter case must be the same and not
different. The test to ascertain whether the two offences
are the same is not identity of the allegations but the
identity of the ingredients of the offence. Motive for
committing offence cannot be termed as ingredients of
offences to determine the issue. The plea of autrefois
acquit is not proved unless it is shown that the judgment
of acquittal in the previous charge necessarily involves an
acquittal of the latter charge.”
.(j) In State of Rajasthan v. Bhagwan Das Agrawal (2013) 16 SCC
574 there were 3 FIRs. registered with respect to illegal supply
of explosives. Charge was under the Explosives Act. This Court
held that the nature and manner of the offences committed by the
accused persons were not identical but were different, and as
such FIRs. were not relating to the same offence as different
acts happened in different places. As such the provisions
contained in section 186 Cr.PC would not apply.
(k) In State of NCT of Delhi v. Sanjay etc. (2014) 9 SCC 772
this Court considered the maxim “nemo debet bis vexari pro una
et eadem causa” i.e. no man shall be put in jeopardy twice for
one and the same offence. In case ingredients are different
there can be separate trial for the same offence also. This
Court has laid down thus :
“52. It is well known principle that the rule against
double jeopardy is based on a maxim nemo debet bis vexari
pro una et eadem causa, which means no man shall be put in
jeopardy twice for one and the same offence. Article 20 of
the Constitution provides that no person shall be
prosecuted or punished for the offence more than once.
However, it is also settled that a subsequent trial or a
prosecution and punishment has no bar if the ingredients of
the two offences are distinct.”
34. In the light of aforesaid discussion, it is appropriate to consider
the submissions raised by Shri Surendra Singh, learned senior counsel
appearing on behalf of Lalu Prasad Yadav. It was submitted by learned
senior counsel that since the conspiracy was between 1988 and 1996 which
included the period of 1994-1995, the conviction has been made on the
charge of conspiracy from 1988 to 1996 which included all the treasuries of
the erstwhile State of Bihar. There was no charge of separate conspiracy.
Charges being similar in the cases which have been quashed. No case is made
out for trial under section 120-B. Same and identical circumstances are
being relied upon by the prosecution. There are no new or additional
circumstances in the cases which have been quashed. The conspiracies
referred to are one and the same and not different conspiracies. Thus, in
view of the trial which had concluded, there cannot be further trial on the
charge of conspiracy.
35. We are unable to accept the submissions raised by learned senior
counsel. Though there was one general charge of conspiracy, which was
allied in nature, the charge was qualified with the substantive charge of
defalcation of a particular sum from a particular treasury in particular
time period. The charge has to be taken in substance for the purpose of
defalcation from a particular treasury in a particular financial year
exceeding the allocation made for the purpose of animal husbandry on the
basis of fake vouchers, fake supply orders etc. The sanctions made in
Budget were separate for each and every year. This Court has already dealt
with this matter when the prayers for amalgamation and joint trial had been
made and in view of the position of law and various provisions discussed
above, we are of the opinion that separate trials which are being made are
in accordance with provisions of law otherwise it would have prejudiced the
accused persons considering the different defalcations from different
treasuries at different times with different documents. Whatever could be
combined has already been done. Each defalcation would constitute an
independent offence. Thus, by no stretch, it can be held to be in violation
of Article 20(2) of the Constitution or Section 300 Cr.P.C. Separate trials
in such cases is the very intendment of law. There is no room to raise
such a grievance. Though evidence of general conspiracy has been adduced
in cases which have been concluded, it may be common to all the cases but
at the same time offences are different at different places, by different
accused persons. As and when a separate offence is committed, it becomes
punishable and the substantive charge which has to be taken is that of the
offence under the P.C. Act etc. There was conspiracy hatched which was
continuing one and has resulted into various offences. It was joined from
time to time by different accused persons, so whenever an offence is
committed in continuation of the conspiracy, it would be punishable
separately for different periods as envisaged in section 212(2), obviously,
there have to be separate trials. Thus it cannot be said to be a case of
double jeopardy at all. It cannot be said that for the same offence the
accused persons are being tried again.
36. Learned senior counsel has relied upon the decision of this Court in
S. Swamirathnam (supra) in which the charge disclosed one single
conspiracy, although spread over several years. There was only one object
of the conspiracy, and that was cheating members of the public. The fact
that in the course of years others joined the conspiracy or that several
incidents of cheating took place in pursuance of the conspiracy, does not
change the conspiracy and does not split up a single conspiracy into
several conspiracies. The accused persons raised the submission as to
misjoinder of the charges. This Court has dealt with the matter thus :
“2. Both the courts below, relying on the oral and documentary
evidence in the case, held it as a fact that there had been a
conspiracy during the years 1945-48 to cheat members of the
public between some of the accused and the approvers Ramaswami
Mudaliar and Vellayam Pillai examined as P. Ws. 91 and 61
respectively. The method adopted for cheating was to persuade
such members of the public, as could be persuaded, to part with
their money to purchase counterfeit Rs. 5 currency notes at half
their face value and after having obtained their money to decamp
with it. When a member of the public handed over his money, at a
certain stage, one of the conspirators pretending to be a Police
Officer would arrest the man who had the box containing their
money and take him away with the box. The victim was thus
deprived of his money without even having a single counterfeit
currency note in his possession in exchange of the genuine money
paid by him. We have scrutinized with care the judgments of the
Sessions Judge and the learned Judge of the High Court and find
that they were amply justified, having regard to the state of
the evidence on the record, in coming to the conclusion that the
case of the prosecution concerning the existence of the
conspiracy as charged to cheat the members of the public, had
been proved. We are unable to find any special circumstance,
arising from the evidence on the record, which would justify our
interference with the finding of fact arrived at by the courts
below. Indeed, the evidence is overwhelming and convincing to
prove the case of the prosecution that there had been a
conspiracy in the relevant years to cheat the members of the
public between some of the accused and the aforesaid approvers.
7. On behalf of the appellant Abu Bucker it was contended that
there has been misjoinder of charges on the ground that several
conspiracies, distinct from each other, had been lumped together
and tried at one trial. The Advocate for Swamirathnam, however,
did not put forward this submission. We have examined the charge
carefully and find no ground for accepting the contention
raised. The charge as framed, discloses one single conspiracy,
although spread over several years. There was only one object of
the conspiracy and that was to client members of the public. The
fact that in the course of years others joined the conspiracy or
that several incidents of cheating took place in pursuance of
the conspiracy did not change the conspiracy & did not spilt up
a single conspiracy into several conspiracies. It was suggested
that although the modus operandi may hove been the same, the
several instances of cheating were not part of the same
transaction. Reliance was placed on the case of Sharpurji
Sorabji v. Emperor : AIR 1936 Bom 154 and on the case of
Choragudi Venkatadari In re ILR 33 Mad 592. These cases are not
in point. In the Bombay case no charge of conspiracy had been
framed and the decision in the Madras case was given before
Section 120-B, was introduced into the Indian Penal Code. In the
present case, the instances of cheating were in pursuance of the
conspiracy and were therefore parts of the same transaction.”
It is apparent from the aforesaid decision that this Court did not
consider various provisions and question of double jeopardy did not arise
for consideration. It was held in the facts that there was no prejudice to
the accused persons. There was no misjoinder of the charges. On facts the
case has no application and cannot be said to be an authority on Article 20
of the Constitution and section 300 Cr.PC.
37. In Srichand K. Khetwani’s case (supra), accused were tried for an
offence punishable under section 120-B read with section 409 and section
5(2) read with section 5(1)(d) of the P.C. Act. They were all convicted by
the trial court. The conviction of the appellants was upheld. The
prosecution case was that in pursuance of the conspiracy, a number of
licences in the name of several companies which had no existence were
prepared, some of them were actually issued and that two of those licences
issued were in the name of M.L. Trading Co., Bombay and were delivered to
appellant by Prabhakar Karmik. The Court held that the appellant received
the licences issued in the name of the fictitious firm, therefore the
appellant was a member of the conspiracy with which he was charged. Charge
was framed for commission of offence punishable under section 120-B IPC
read with section 5(2) of PC Act. The charge framed described the
conspiracy to be agreeing of the various persons, including the persons not
put on trial, to do or cause to be done, illegal acts. The charge of
conspiracy was not that the conspiracy was entered into with each bogus
individual firm for the benefit of that firm alone in connection with the
issue of licences to that particular firm. The charge was that out of the
profits made from acts done in furtherance of the conspiracy, all the
persons in the conspiracy were to benefit. This Court observed that the
conspiracy was a general conspiracy to keep on issuing licence in the names
of fictitious firms and to share the benefits arising out of those licences
when no real independent person was the licensee. This Court held that it
was not a case of conspiracy with respect to licences issued to one
fictitious company. This Court has laid down thus:
“The finding that the various firms to whom licences were issued
were fictitious is not questioned. The conspiracy was a general
conspiracy to keep on issuing licences in the names of
fictitious firms and to share the benefits arising out of those
licences when no real independent person was the licensee. The
various members of the conspiracy other than the two public
servants must have joined with the full knowledge of the modus
operandi of the conspiracy and with the intention and object of
sharing the profits arising out of the acts of the conspirators.
We do not therefore see that the mere fact that licences were
issued in the names of eight different companies make out the
case against the appellant and the other conspirators to be a
case of eight different conspiracies each with respect to the
licences issued to one particular fictitious company.”
It is apparent that the case is quite distinguishable. In the instant
case different accused persons exist with the help of whom amount has been
withdrawn in different years. It is not a case that only a few persons had
benefited each and every year, when the facts are juxtaposed. Thus, it
would be a case of different offences. The decision has no application and
this Court was not concerned with the provisions of Article 20 or section
300 Cr.PC and other provisions relating to separate trial contained in the
Cr.P.C.
38. Another decision relied upon by learned senior counsel is Mohd.
Hussain Umar Kochra etc. v. K.S. Dalipsinghji & Anr. AIR 1970 SC 45. The
facts indicate that 40 accused persons were at Bombay and other places from
1.11.1956 to 2.2.1959 and were parties to a continuing criminal conspiracy,
to acquire possession of, carry, remove deposit harbor, keep concealed and
deal in gold and knowingly to be concerned in fraudulent evasion of duty
chargeable on gold and of the prohibition and restriction applicable
thereto and committed an offence under section 120B IPC read with section
167 (81) of Sea Customs Act, 1878. On other counts the accused persons were
charged individually with offences punishable under section 167. The scheme
was that necessary finances would be arranged, remittances to foreign
countries would be made through Murad, gold would be sent by air from
foreign countries to Bombay, Delhi, Calcutta and other airports and the
smuggled gold would be sold in India. There were several transactions of
smuggling. In 1957, other accused persons joined the conspiracy. From
February, 1958, seven or eight consignments of gold concealed in the rear
left bathroom of the aircrafts were sent from Lori to Bombay. On 1.2.1959
the Rani of Jhansi consignment of gold was searched by customs officers at
the Santacruz airport Bombay and the gold was seized. It was urged before
this Court by the accused persons that evidence disclosed number of
conspiracies and charge of general conspiracy was not proved. It was not a
case of common conspiracy. This Court has laid down thus :
“15. As to the second question the contention was that the
evidence disclosed a number of separate conspiracies and that
the charge of general conspiracy was not proved. Criminal
conspiracy as defined in Section 120A of the I.P.C. is an
agreement by two or more persons to do or cause to be done an
illegal act or an act which is not illegal by illegal means. The
agreement and the breach attracted to it the provisions of
Section 167(81) of is the gist of the offence. In order to
constitute a single general conspiracy there must be a common
design and a common intention of all to work in furtherance of
the common design. Each conspirator plays his separate part in
one integrated and united effort to achieve the common purpose.
Each one is aware that he has a part to play in a general
conspiracy though he may not know all its secrets or the means
by which the common purpose is to be accomplished. The evil
scheme may be promoted by a few, some may drop out and some may
join at a later stage, but the conspiracy continues until it is
broken up. The conspiracy may develop in successive stages.
There may be a general plan to accomplish the common design by
such means as may from time to time be found expedient. New
techniques may be invented and new means may be devised for
advancement of the common plan. A general conspiracy must be
distinguished from a number of separate conspiracies having a
similar general purpose. Where different groups of persons co-
operate towards their separate ends without any privity with
each other each combination constitutes a separate conspiracy.
The common intention of the conspirators then is to work for the
furtherance of the common design of his group only. The cases
illustrate the distinction between a single general conspiracy
and a number of unrelated conspiracies. In S.K. Khetwani v.
State of Maharashtra ,S. Swaminatham v. State Madras the Court
found a single general conspiracy while in R. v.
Griffiths [1965] 2 All E.R. 448 the Court found a number of
unrelated and separate conspiracies.
16. In the present case, there was a single general conspiracy
to smuggle gold into India from foreign countries. The scheme
was operated by a gang of international crooks. The net was
spread over Bombay, Geneva, Beirut and Bahrein. Yusuf Merchant
and Pedro Fernandes supplied the brain power, Murad Asharanoff
remitted the funds, Lakshmandas Kochra and Rabiyabai supplied
the finances, Pedro Fernadez and the Shuhaibar brothers sent the
gold from Geneva and the Middle East, carriers brought the gold
hidden in jackets, mechanics concealed and removed gold from
aircrafts and others helped in contacting the carriers and
disposing of the gold. Yusuf, Pedro and Murad and Lakshmandas
were permanent members of the conspiracy. They were joined later
by Kochra, the Shuhaibar brothers and Lori and other associates.
The original scheme was to bring the gold from Geneva. The
nefarious design was extended to smuggling of gold from the
Middle East. There can be no doubt that the continuous smuggling
of gold sent by Pedro from Geneva during February 1956 to
February 1958 formed part of a single conspiracy. The settlement
of account between Yusuf and Pedro at Beirut did not end the
original conspiracy. There can also be no doubt that the
smuggling of gold from Beirut by the Shuhaibar brothers and from
Bahrein by their agent Lori were different phases of the same
conspiracy. The main argument was that the despatch of gold from
Geneva was the result of one conspiracy and that the despatch of
gold from the Middle East was the result of another separate and
unrelated conspiracy. The courts below held, and in our opinion
rightly, that there was a single general conspiracy embracing
all the activities. Pedro had a share in the profits of the
smuggling from Geneva. He got also a share of Yusuf's profits
from the smuggling of the Middle East gold. Apparently Shuhaibar
brothers and Lori had no share in the profits from the smuggling
of the Geneva gold but they attached themselves to the general
conspiracy originally devised by Yusuf and Pedro with knowledge
of its scheme and purpose and took advantage of its existing
organization for obtaining finances from Kochra and Rabiyabai
and for remittances of funds by Yusuf. Each conspirator profited
from the general scheme and each one of them played his own part
in the general conspiracy. The second contention is rejected.”
This Court has distinguished general conspiracy from number of
separate conspiracies having a similar general purpose. Where different
groups of persons co-operate towards their separate ends without any
privity with each other, each combination constitutes a separate
conspiracy. It was held that in the case there was single general
conspiracy to smuggle gold into India from foreign countries. The
contention raised was that separate conspiracies were raised by the accused
in the facts of the said case. The facts are quite different in the instant
case. The question which has come up for consideration did not arise in the
aforesaid decision and this Court has held that there was no prejudice
caused to the accused persons by not making separate trials.
39. The modus operandi being the same would not make it a single offence
when the offences are separate. Commission of offence pursuant to a
conspiracy has to be punished. If conspiracy is furthered into several
distinct offences there have to be separate trials. There may be a
situation where in furtherance of general conspiracy, offences take place
in various parts of India and several persons are killed at different
times. Each trial has to be separately held and the accused to be punished
separately for the offence committed in furtherance of conspiracy. In case
there is only one trial for such conspiracy for separate offences, it would
enable the accused person to go scotfree and commit number of offences
which is not the intendment of law. The concept is of ‘same offence’ under
Article 20(2) and section 300 Cr.PC. In case distinct offences are being
committed there has to be independent trial for each of such offence based
on such conspiracy and in the case of misappropriation as statutorily
mandated, there should not be joinder of charges in one trial for more than
one year except as provided in section 219. One general conspiracy from
1988 to 1996 has led to various offences as such there have to be different
trials for each of such offence based upon conspiracy in which different
persons have participated at different times at different places for
completion of the offence. Whatever could be combined has already been
done. Thus we find no merit in the submissions made by learned senior
counsel appearing on behalf of accused persons.
40. It was also submitted by learned counsel appearing on behalf of
Sajal Chakraborty that the principle of issue estoppel is attracted to
criminal trial and has relied upon decision in Manipur Administration,
Manipur v. Thokchom Bira Singh AIR 1965 SC 87 in which it has been observed
that the rule of issue estoppel in a criminal trial is that where an issue
of fact has been tried by a competent court on a former occasion and a
finding has been reached in favour of an accused, such a finding would
constitute estoppel against the prosecution. Said principle has been merged
with the principle of Autrefois acquit as enshrined in section 300 Cr.PC.
Learned counsel has also relied upon Assistant Collector of Customs, Bombay
& Anr. v. L.R.Melwani AIR 1970 SC 962 in which this Court has observed that
the issue estoppel rule is but a facet of the doctrine of Autrefois acquit.
He has also referred to the decision of Supreme Court of the Federation of
Malaya in Sambasivan v. Public Prosecutor, reported in (1950) AC 458, where
two charges were framed for carrying a firearm and being in possession of
ammunition the appellant being acquitted on the second charge but being
subject to a second trial for the first charge, the Privy Council held that
:
“The effect of a verdict of acquittal pronounced by a competent
court on a lawful charge and after a lawful trial is not
completely stated by saying that the person acquitted cannot be
tried again for the same offence. To that it must be added that
the verdict is binding and conclusive in all subsequent
proceedings between the parties to the adjudication.” (Emphasis
Supplied)
41. In Manipur Administration (supra) this Court has affirmed the
decision in Pritam Singh v. The State of Punjab AIR 1956 SC 415 which in
turn relied upon decision in Sambasivan (supra). Thus it was contended that
CBI is barred from adducing evidence in respect of the allegations for
which the respondent Sajal Chakraborty has been subsequently acquitted by
the High Court and the conviction recorded by the trial court has been set
aside. Finding had been recorded by the High Court that there was no
mechanism with the respondent to check illegal withdrawal from treasury.
Receiving of laptop and illegal gratification has not been proved as a
reward and the accused did not take any step to find out causes of heavy
withdrawal of Rs.50.56 lakhs in a single day by co-accused Dr. B.N. Sharma.
Learned counsel has further submitted that earlier there was no such
practice to send the yearly allocation information to the Deputy
Commissioner. Thus the CBI cannot try the accused on the basis of same
allegations de novo. There is no role of the accused in preparation of
different fake bills. The prosecution of the respondent is for the same
offence in RC 20A/96 and RC 68A/96 for which he has already been acquitted
in RC No.51A/96. Learned counsel had also submitted that for each separate
bill, separate FIR should have been registered in case CBI stand is
accepted. It was a series of acts forming part of the same transaction. It
is unclear as to which of the several offences related to each bill during
the tenure as District Collector was committed. Thus, there ought to be one
trial only. Section 212 of Cr.PC does not cover those facts where the
offence of criminal breach of trust has been clubbed with the offence of
criminal conspiracy under section 120-B IPC.
42. Learned counsel has referred to decision in Emperor v. Jhabbar Mull
Lakkar reported in (1922) ILR 49 Cal 924 wherein the Court has laid down
thus :
“6. It is conceded by the earned Counsel for the prosecution
that the evidence which would be given in respect of the present
charges, would be identical with the evidence given against the
accused at the last Sessions, and the earned Counsel further
informed me that the matter of the alleged false entries was
investigated at the trial before my learned brother Mr. Justice
Walmsley and the Jury. In other words, it was a part of the
prosecution case, at the trial at the last Sessions, that the:
accused had made the alleged false entries in the book for the
purpose of a carrying out the alleged misappropriation, and with
the intention of concealing his alleged breach of trust.
7. Since the case was argued last Friday I have considered the
matter, and I have come to the conclusion that, on the facts of
this case, the accused ought not to be put on his trial in
respect of these charges. If he were so tried, in my judgment,
it would in effect amount to trying him again for the same
offences as those upon winch he has already been tried and
acquitted by the Jury, although the charges now before the Court
are framed in a different manner.
8. Apart from this, I am not at present satisfied that, if it
had been thought advisable to lay before the Court at the trial
at the last Sessions, the facts as constituting offence under
Section 477A as well as offences under Section 408, a form of
procedure could not have been adopted for the purpose of
carrying out such object.
9. Under these circumstances, in my judgment, it would not b;
right to put the accused man on his trial for the second time in
respect of the same evidence and in respect of the same matters
upon which he has already been unanimously acquitted by the
Jury.” (Emphasis Supplied)
The said decision has no application to facts of the cases.
43. The counsel has referred to State of Bombay v. Umarsaheb Buransaheb
Inamdar AIR 1962 SC 1153 dealing with the bar in section 222 of Cr.PC, 1898
corresponding to section 212 of Cr.P.C., 1973 and section 235 of old Code
corresponding to section 220 of Cr.P.C. in which this Court has observed :
“6. The charge could have been split up into two charges, one
with respect to the offence of criminal breach of trust
committed with respect to be amount embezzled between March 6,
1949 and March 5, 1950 and the other with respect to the amount
embezzled between March 6, 1950 and June 30, 1950. The two
offences of criminal breach of trust could have been tried
together in the present case, as the offences were said to have
been committed in pursuance of the criminal conspiracy entered
into by the accused. All the offences committed in pursuance of
the conspiracy are committed in the course of the same
transaction and therefore can be tried together at one trial, in
view of sub-s. (1) of s. 235 of the Code which provides that if
in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the same
person, he may be charged with and tried at one trial for every
such offence. It is therefore clear that no prejudice was caused
to the accused by the defect in the charge.” (Emphasis Supplied)
The question of amalgamation and joint trial had already been
concluded by this Court. The question of Autrefois acquit (double jeopardy)
was not involved in the aforesaid decision.
44. Gopal Prasad Sinha v. State of Bihar (1971) 2 SCR 619 has also been
relied upon for issue of estoppel. The Court has laid down:
“The basic principle underlying the rule of issue-estoppel is
that the same of fact and law must have been determined in the
previous litigation. The question then arises : Was it the same
issue of fact which was determined in the earlier case ? A
person may be acting as a cashier at one period and may not be
acting as a cashier at another period, especially as in this
case it was found that the appellant had never been appointed as
a cashier. He was a temporary senior accounts clerk who was
alleged to be doing the work of a cashier. If there is any
likelihood of facts or conditions changing during the two
periods which are under consideration then it is difficult to
say that the prosecution would be bound by the finding in a
previous trial on a similar issue of fact. It seems to us that
the later finding must necessarily be in contradiction of the
previous determination. There can be no such contradiction if
the periods are different and the facts relating to the carrying
on of the duties of a cashier are different.” (Emphasis
Supplied)
Submission of issue of estoppel is based on presupposition that there
is no likelihood of facts or conditions changing in different years. What
would be the facts and conditions cannot be said before trial. Duty was to
be performed at different times. Thus, the decision is of no utility. The
decision does not support the cause espoused.
45. In the case of Mills v. Cooper (1967) 2 QB 459, the facts were that
the defendant was accused of illegally camping on the highway under section
127 of the Highways Act, l959. One of the primary ingredients of such crime
was being a ‘gipsy’. There were two complaints registered against him,
albeit on different dates. In the first case, he was accused of being a
gipsy as on 22nd December, 1965 and he was acquitted. In the second case,
he was accused of being a gipsy and illegally camping on 13th March, 1966.
He took the plea of issue estoppel. Lord Parker, CJ & Lord Diplock, J. saw
it differently whilst disallowing the plea of issue estoppel. They held
that the second case came later in time and evidence with regard to his
status as on the later date cannot be estopped. Being a gipsy was not a
permanent disposition. Lord Diplock held that issue estoppel, in criminal
proceedings takes the form of the ‘rule against double jeopardy’. In that
sense, issue estoppel is distinct when applied to civil and criminal
proceedings. In similar light, rejecting the application of issue estoppel
to the facts of that case, Lord Parker, CJ held:
“I am by no means convinced, for reasons into which I find it
unnecessary to go, that the doctrine as applied in civil cases has any
application in criminal cases at all. I will, however, assume for the
purposes of this case that it has. Even so, I am satisfied that it has no
application in the present case, since the issue determined on the earlier
occasion was that the defendant was not a gipsy on December 22, 1965,
whereas the issue to be determined on the second occasion was whether he
was a gipsy on March 13, 1966.”
46. On the issue of estoppel, learned Solicitor General has relied upon
Masur Khan v. State of U.P. (1974) 1 SCR 793 thus :
“The Appellant pleaded on the ground of issue estoppel. The
issue was regarding his citizenship. Earlier, he had been
prosecuted by the SDM, Fatehpur u/s 14 of the Foreigners Act. He
was then acquitted as not being a foreigner. Now he had been
detained under Paragraph 5 of the Foreigners (Internment) Order,
1962. The Court dismissed the petition and therewith the
argument of issue estoppel: “Here again it is to be remembered
that the principle applies to two criminal proceedings and the
proceeding with which we are now concerned is not a criminal
proceeding. We therefore hold that there is no substance in this
contention.
The petition is dismissed.
Whilst doing so, the Court retraced the jurisprudence on issue-
estoppel starting with the verdict of Lord MacDermott in
Sambasivam v. Public, Prosecutor, Federation of Malaya, 1950 AC.
458 as well as Pritam Singh v. State of Punjab (AIR 1956 SC 415)
and Manipur Admn. v. T. Bira Singh (Supra).”
47. With respect to issue of estoppel in R. v. Humphrys (1976) 2 AER 497,
Humphrys had previously been acquitted on a charge of driving a motorcycle
whilst being disqualified to do so. During his trial he testified that he
hadn’t at all driven a motorcycle during that year and he was acquitted.
Later, it was found that he had lied leading to a charge of perjury. Their
Lordships were then faced with two broad issues: first, whether issue
estoppel operated in criminal proceedings; second, even if issue estoppel
was not recognised by the criminal law, was the bringing of a charge of
perjury prevented by the generality of the double jeopardy doctrine? On the
first issue, the one that was being addressed there, the House was
unequivocal in its view that issue estoppel had no place in criminal
proceedings.
48. In Ravinder Singh v. Sukhbir Singh (2013) 9 SCC 245, the appellant
had come up in appeal against the High Court order dismissing his
application for quashing of criminal proceedings initiated by R-1 under SC,
ST (Prevention of Atrocities) Act, 1989. The dispute was over some
agricultural land in Delhi over which multiple FIRs. and writs were filed.
Counsel for the appellant pleaded on the grounds of issue estoppel stating
that the issue had already been settled by the High Court. While allowing
the appeal, this Court then drew a distinction between ‘issue-estoppel’ and
‘double jeopardy’ holding the former not to be a bar on a second proceeding
but merely acting as estoppel qua prior findings.
49. Thus, it is apparent that it is premature to raise the plea of issue
of estoppel before evidence is recorded for different sets of accusations
of different offences for different periods. Then it is difficult to say
that prosecution would be bound by the finding in a previous trial on a
similar issue of fact and there may not be any contradiction if the periods
are different and with respect to culpability for different periods and
without fear of contradiction, separate findings can be recorded. In what
manner the duty has been carried on for different periods would be the
question of fact in each case and there is no question of double jeopardy
in such a case.
50. We are constrained to observe that the same learned Judge had taken a
different view in Dr. R.K. Rana’s case on the basis of same facts, and same
question of law in the same cases. Judicial discipline requires that such a
blatant contradiction in such an important matter should have been avoided.
The order passed in the case of Dr. R.K. Rana was on sound basis and though
the court had noted that there was some overlapping of facts but the
offences were different, it, however, has taken a different view in the
impugned order for the reasons which are not understandable. The court
ought to have been careful while dealing with such matters and consistency
is the hallmark of the court due to which people have faith in the system
and it is not open to the court to take a different view in the same matter
with reference to different accused persons in the same facts and same
case. Such inconsistent decision-making ought to have been avoided at all
costs so as to ensure credibility of the system. The impugned orders are
palpably illegal, faulty and contrary to the basic principles of law and
Judge has ignored large number of binding decisions of this Court while
giving impermissible benefit to the accused persons and delayed the case
for several years. Interference had been made at the advanced stage of the
case which was wholly unwarranted and uncalled for. Let now amends be made
by expediting the trial without any further hindrance from any quarter.
51. Coming to the question of delay, we find that there is a delay of
113, 157 and 222 days in filing the respective appeals by the CBI.
Applications have been filed for condonation of delay on account of the
departmental, administrative procedures involved in for filing the special
leave petition. It is submitted that unlike the private litigant the
matters relating to the Government are required to be considered at various
levels and then only a decision is taken to file special leave petition.
The process of referring the particular file from one department to another
is a time consuming process and decisions have to be taken collectively.
52. It was submitted by Shri Ram Jethmalani, learned senior counsel
appearing on behalf of the respondents that delay of 157 days has not been
satisfactorily explained. The averments made in the applications seeking
condonation of delay are based upon earlier authorities which no longer can
be said to be good law. He has relied upon the decisions in Postmaster
General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC 503 and State
of U.P. thr. Exe. Engineer v. Amar Nath Yadav (2014) 2 SCC 422. His
submission is that Law of Limitation binds everybody equally including the
Government and defense by the Government of impersonal machinery and
inherited bureaucratic methodology cannot be accepted in view of the modern
technology being used and available; more so in the light of the aforesaid
decisions. Delay in moving files from one department to another is not
sufficient explanation for condoning abnormal delay. Condonation of delay
is an exception and should not be used as an anticipated benefit for the
Government department. The case was investigated by CBI from beginning to
end and the CBI Manual provides mechanism for filing appeal expeditiously.
The CBI was bound by its Manual and in violation of the provisions
contained in Manual without sufficient explanation, the delay cannot be
condoned.
53. Reliance was also placed on Ajit Singh Thakur & Anr. v. State of
Gujarat 1981 (1) SCC 495, which has been approved in Pundlik Jalam Patil
(D) by Lrs. v. Exe. Engg. Jalgaon Medium Project & Anr. (2008) 17 SCC 448
that as per the conduct of the appellants they are not entitled for
condonation of delay, more so, in view of the decision in Binod Bihari
Singh v. Union of India (1993) 1 SCC 572 as t*here was suppression as to
when the judgment was applied or received. CBI Manual has a statutory
force as held in Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC
226 and the guidelines as to time frame should have been strictly adhered
to as observed by this Court.
54. On the other hand, learned Solicitor General has submitted that delay
deserves to be condoned. He has relied upon the decision of this Court in
Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394 in which it has
been observed that in serious offences, prosecution is done by the State
and the court of law should not throw away prosecution solely on the ground
of delay. Mere delay in approaching a court of law would not by itself
afford a ground for dismissing the case. He has also referred to Sajjan
Kumar v. Union of India (2010) 9 SCC 368 to contend that a prosecution
should not be quashed merely on the ground of the delay. The aforesaid
decisions cited of Japani Sahoo and Sajjan Kumar (supra) are with respect
to the delay in institution of the case not with respect to sufficient
cause in filing of appeals. However, reliance on the State of Tamil Nadu
v. M. Suresh Rajan (2014) 11 SCC 709 is apt in which the time consumed in
taking opinion on change of Government was held to be sufficient cause so
as to condone the delay. Reliance has also been placed on Indian Oil
Corporation Ltd. & Ors. v. Subrata Borah Chowlek, etc. (2010) 14 SCC 419 in
which there was a delay in filing the appeals in which this Court has
observed that Section 5 owes no distinction between State and citizen. The
Court has to ensure that owing to some delay on part of the machinery,
miscarriage of justice should not take place. It is also contended that
the power under Section 5 of the Limitation Act should be exercised to
advance substantial justice by placing reliance on State of Nagaland v.
Lipok AO & Ors. (2005) 3 SCC 752.
55. In view of the averments made in the applications we are satisfied
that delay has been sufficiently explained and considering the facts and
circumstances of the case, gravamen of matter and also the divergent views
taken by the same Judge of the High Court in the same case vis a vis
different accused persons on same question, we consider it our duty not to
throw away petition on the ground of delay. The explanation offered by the
CBI of movement of file so as to condone the delay so as to subserve the
ends of justice, deserves to be accepted. No doubt about it that the CBI
ought to have acted with more circumspection and ought to have followed the
CBI Manual. It is regrettable that we are receiving majority of the special
leave petitions filed in this Court barred by limitation not only on behalf
of the Government but also by the other private litigants. Not only that
the special leave petitions are preferred with the delay but in refiling
also enormous time is consumed and this Court in order to advance
substantial justice is not throwing away cases only on limitation.
56. Sufficiency of cause has to be judged in a pragmatic manner so as to
advance cause of justice. No doubt about it that litigants are supposed to
act with circumspection within limitation and that there should not be
delay and laches and State machinery should not be differentiated vis a vis
with the private individual in the matter of filing the appeals, petitions
etc., however, in the facts and circumstances of the case and considering
the averments in the applications, we deem it appropriate to condone the
delay in filing the appeals in this court.
57. In this case, we are surprised at the conduct of the CBI in such
important matters how such delay could take place. The CBI ought to have
been careful in filing the Special Leave Petitions within limitation
considering the factual matrix of the case. The criticism made by the
senior counsel for respondent is not wholly unjustified. CBI ought to be
guided by its Manual. It is expected of it to be more vigilant. It has
failed to live up to its reputation. In the instant case, lethargy on its
part is intolerable. If CBI fails to act timely, peoples’ faith will be
shaken in its effectiveness. Let the Director of CBI look into the matter
and saddle the responsibility on a concerned person. In important cases
Director, CBI should devise methodology which should not be cumbersome as
reflected in these cases, otherwise in future, Director, CBI cannot escape
the responsibility for delay in such cases to be termed as deliberate one,
which is intolerable. Being the head of the institution it was the
responsibility of the Director, CBI to ensure that appeals were filed
within limitation. There should not have been delay in filing special leave
petitions at all.
58. Resultantly, we set aside the impugned judgments and orders passed by
the High Court, allow the appeals and direct the trial court concerned to
expedite the trial and to conclude the same as far as possible within a
period of nine months from today.
………………………..J.
(Arun Mishra)
............................J.
(AMITAVA ROY)
NEW DELHI;
MAY 08, 2017.
