Jharkhand High Court
Dr Jagannath Mishra vs The State Of Jharkhand Through The ... on 21 July, 2014
Author: R.R.Prasad
Bench: R.R.Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 305 of 2013
Dr. Jagannath Mishra........................ Petitioner
Versus
State of Jharkhand through
Superintendent of Police, CBI, Ranchi....... Opp. Party
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Coram: The Hon'ble Mr. Justice R.R.Prasad
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For the petitioner : Mr. Indrajeet Sinha, Advocate
For the Vigilance : Md. Mokhtar Khan, ASGI
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ORDER
C.A.V. On 11/07/2014 Delivered on 21/07/2014
14/21.07.2014By invoking extraordinary jurisdiction of this Court, entire criminal proceedings of four cases, R.C. Case No. 64(A)/1996, R.C. Case No. 47(A)/1996, R.C. Case No. 68(A)/1996 and R.C. Case No. 38(A)/ 1996, have been sought to be quashed on the ground that the prosecution in these cases would be barred by Section 300 of the Code of Criminal Procedure as the petitioner has already been convicted for the same offence in R.C. Case No. 20(A)/1996.
2. The facts leading to the filing of this case are that in the year 1996, when it was detected that the Officials and Staff of Animal Husbandry Department in connivance with other accused persons including high ups in the administration, have been facilitating withdrawal of money from different Treasuries of the erstwhile State of Bihar fraudulently putting the State exchequer to a great loss, 64 cases known as Fodder Scam Cases were instituted at different places of the State of Bihar. After bifurcation of the State, most of the cases including the aforesaid four cases were transferred to the State of Jharkhand. The aforesaid four cases and also R.C. Case No. 20(A)/1996, relating to fraudulent withdrawal from Chaibasa, Deoghar, Doranda and Dumka Treasuries, have been registered under Sections 409, 420, 467, 468, 471, 477, 477A, 201, 511 read with Section 120B of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act. The period for which the aforesaid four cases and also R.C. Case No. 20(A)/1996, were registered is being shown herein below:-
(a) R.C. Case No. 20(A)/1996- for the period from 01/04/ 1994 to 31/01/1995, relates to Chaibasa Treasury.
(b) R.C. Case No. 64(A)/1996- for the period from 1990- 1994 relates to Deoghar Treasury.
(c) R.C. Case No. 47(A)/1996- for the period from 1990-91 to 1995-96, relates to Doranda Treasury.
(d) R.C. Case No. 68(A)/1996- for the period from 10/04/ 1992 to 31/03/1993, relates to Chaibasa Treasury.
(e) R.C. Case No. 38(A)/1996- for the period from 1995 to January, 1996, related to Dumka Treasure.
3. All the aforesaid cases were lodged on the allegation that the accused persons-officials and staff of the the Department of Anumal Husbandry, Bihar, in connivance with the suppliers did illegal acts and created forged allotment letters, false supply orders and the bills, upon which false certificate of receiving the materials were given, on the basis of which false contingent bills were submitted and to justify fraudulent purchase, the falsification of the documents were made and on the basis of which huge money was withdrawn from different Treasuries, which was beyond allocation of the fund, knowledge of which was there to high officials but they did not do anything purposely to facilitate the other co-accused to withdraw the money fraudulently and not only that they did such acts to protect them so that they may not be prosecuted.
After investigation, charge sheets were submitted in all the aforesaid four cases including R.C. Case No. 20(A)/1996, against the accused persons including the petitioner, who was not the FIR named accused. Upon cognizance being taken, charges were framed in the aforesaid four cases including R.C. Case No. 20(A)/1996, under Sections 409, 420, 467, 468, 471, 477, 477A, 201, 511 read with Section 120B of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act.
The charges, which were framed in R.C. Case No. 20(A)/1996, against the petitioner and other accused persons are that all the accused persons in conspiracy with each other, did act illegally whereby false allotment letters, false supply orders, bills upon which false certificate of receiving the materials were given and then false contingent bills were prepared upon which a sum of Rs. 37,70,39743/- were drawn illegally from Chaibasa Treasury and that the accused persons did that after getting protection from the high ups including petitioner, who was the Chief Minister of the State of Bihar from 06/12/1989 to 10/03/1990, Leader of Opposition, Bihar Legislative Assembly during 30/03/1990 to 16/03/1994 and Member of Rajya Sabha during the period from 01/04/1994 to 02/04/2000.
Further the petitioner was charged with the accusation that while holding the aforesaid posts, the petitioner, who had knowledge of illegal withdrawal, did write letter to the then Chief Minister Laloo Prasad by abusing his office for confining the inquiry, which was being made by the Vigilance Bureau to the Members of the Central Purchase Committee only and not against the officials of AHD and others and then he made recommendation for extending the services of Dr. S.B.sinha, the prime accuse in all the fodder scam cases for two years and the he had had close nexus with the other co- accused, who, in conspiracy with other accused persons, did draw the money illegally from the Treasuries.
4. Similar kind of charges were framed in all other cases e.g. R.C. Case No. 64(A)/1996, R.C. Case No. 47(A)/1996, R.C. Case No. 68(A)/1996 and R.C. Case No. 38(A)/1996, with only difference with respect to period during which amount was drawn fraudulently from different Treasuries and also the extent of amount fraudulently withdrawn.
After the charges were framed in all those cases, the petitioner and other accused persons were put on trial. Amongst them, the first case which was concluded was R.C. Case No. 20 (A)/1996, the petitioner was convicted after it was found by the trial court that when the then Deputy Accountant General [DAG (I & W)] did report on 05/04/1990 to the Regional Development Commissioner, Ranchi about the fraudulent withdrawal upon false showing of transportation of livestock through vehicles which were found to be Cars, Scooters, Tempo, Taxi, Jeeps etc. the petitioner did write to the then Chief Minister Laloo Prasad to the effect that inquiry be entrusted to the Regional Development Commissioner, Ranchi in stead of police as one K.N.Jha, a co- conspirator happens to be his close relative. Subsequently, the petitioner while was Leader of Opposition, wrote a letter to Laloo Prasad to the effect that investigation, which is being made by the Vigilance, should confine to the Members of the Purchase Committee only and not to other officials of AHD. On account of which the investigation did not proceed in the right direction and, thereby, the accused persons could not be booked in time.
It was further found by the Court that the petitioner had also made recommendation for giving promotion to Dr. Ram Raj Ram a con- conspirator. Further the petitioner did make recommendation for extension of services for two years of the prime accused Dr. S.B.Sinha and that he had also helped daughter-in-law of Dr. S.B.Sinha in getting telephone connection and further it was found that in lieu of protecting those accused persons involving in the cases, he received illegal gratification of Rs. 50.00 lakhs by a supplier M.S.Bedi and further a sum of Rs. 25.00 lakhs from another supplier Ganesh Dubey and again Rs. 5.00 lakhs. The Court having found the charges being proved, did convict the petitioner for the offence under Section 120B read with Sections 409, 420, 467, 468, 471, 477A of the Indian Penal Code and also under Section 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for 4 years and to pay a fine of Rs. 1.00 lakh for the offence under the Indian Penal Code read with Section 120 B and further R.I. for 4 years and to pay a fine of Rs. 1.00 lakh for the offence under Section 13(2) of the Prevention of Corruption Act vide judgment/order dated 30.09.2013/03.10.2012. Being aggrieved with the judgment of conviction and order of sentence a criminal appeal being Cr. Appeal (SJ) No. 838 of 2013, has been preferred before this Court, which is pending consideration.
5. Since, the petitioner has been convicted in one of the cases, this application has been filed for quashing of the entire criminal proceeding of other four cases on the ground that any prosecution for the same offence, is barred under Section 300 of the Code of Criminal Procedure.
6. Mr. Sinha, learned counsel appearing for the petitioner submits that the charges, upon which the petitioner has been convicted in R.C. Case No. 20(A)/1996, are that when the then Deputy Accountant General (DAG) reported to the Regional Development Commissioner about the illegal withdrawal of the huge amount from the Department of Animal Husbandry, the then Minister, AHD, put a note for entrusting the matter to CBI, but this petitioner wrote a letter on 15/11/1990 to the Chief Minister that the inquiry be entrusted to the Regional Development Commissioner and not to the police as the police may harass AHD Officials including K.NJha a close relative of this petitioner and that when the matter was referred to the Vigilance, this petitioner, by writing a letter to the Chief Minister, made request to pass order to the effect that the Vigilance may confine its inquiry only to the Members of the Purchase Committee and that the petitioner had also written a letter to the then Chief Minister for posting of Dr. Ram Raj Ram as Additional Director, a co-conspirator and that the petitioner also made recommendation for extension of the services of Dr. S.B.Sinha, the prime accused in the case and that the petitioner had received illegal gratification of Rs. 80.00 lakhs and, thereby, it is said that the petitioner acted like that a facilitator to facilitate the other accused to draw money fraudulently from the Treasuries. On such accusation, once the petitioner has been convicted in R.C. Case No. 20(A)/1996, he cannot be prosecuted again on the same set of allegations as the subsequent prosecution of the petitioner is under the teeth of Section 300 sub-clause (1) of the Code of Criminal Procedure, which postulates the theory of 'autrefois convict and autrefois acquit' under which one cannot be prosecuted on the same set of facts if he has already convicted or acquitted by the Court of competent jurisdiction. Therefore, the entire criminal prosecution of the petitioner in aforesaid four cases is fit to be quashed.
Learned counsel by referring to the charge sheet submitted in other cases and also order framing charges, did point out that exactly the similar is the charges in all other four cases and that the prosecution has not come forward with any other single charge so that it can be held that the ingredients of the charges are different from the ingredients of the charges upon which the petitioner has already been convicted in R.C. Case No. 20(A)/1996 and, therefore, the prosecution of the petitioner in other four cases is hit by the provision as contained in Section 300 of the Code of Criminal Procedure.
Learned counsel in this regard submits that this Court in the cases of "Sajal Chakraborty- versus- The State of Jharkhand through S.P., CBI, Ranchi [W.P.(Cr.) No. 152 of 2011]" and also in a case of "Sripati Narayan Dubey-versus- State of Jharkhand through S.P., CBI [W.P.(Cr.) No. 183 of 2008], has quashed the proceedings of other cases when on the same charges the petitioners of those cases had been convicted in one of the cases.
8. On the other hand, learned counsel appearing for the CBI submits that notwithstanding the fact that the charges are the same but since the period, during which illegal withdrawal was made, is different and even the Treasuries are different and also the amount of defalcation the parties and suppliers are different, question of prosecution of the petitioner in other four cases being hit by Section 300 of the Code of Criminal Procedure, does not arise. Further it was submitted that the offences alleged are with respect to different financial year for different transaction, for different fake allotment letters, different fake supply orders, different falsification of books, it cannot be said that the charges are the same and similar and, thereby, the principle of 'autrefois convict and autrefois acquit' as enshrined under Section 300 (1) of the Code of Criminal Procedure would not applicable. Further it was submitted that said principle would also not be applicable particularly in this case as the cases have been lodged as per the order of the Hon'ble Supreme Court passed in a case reported in "[(2003) 1 SCC 786]" at different places from where money had been withdrawn from the Treasuries. Here the cases relate to Dumka, Chaibasa, Doranda and Deoghar Treasuries from where huge amount had been withdrawn and, as such, the petitioner is not entitled to any relief. It was also submitted that in one of the similar type of cases, i.e. "R.K.Rana @ Rabindra Kumar Rana-versus- State of Jharkhand through CBI [W.P.(Cr.) No. 226 of 2011]", this Court had rejected the prayer of quashing of the other cases.
9. Having heard learned counsel appearing for the parties and on perusal of the charge sheet, submitted in all those cases and also from the order framing charges in all those cases, i.e. R.C. Case No. 20(A)/1996, R.C. Case No. 64(A)/1996, R.C. Case No. 47(A)/1996, R.C. Case No. 68(A)/1996 and R.C. Case No. 38(A)/1996, it appears that the petitioner has been made accused and in one of the cases, i.e. R.C. Case No. 20(A)/1996, has been convicted on the following accusations:-
1. Recommendation for inquiry by the Regional Development Commissioner- In this regard the allegation which is there in the charge sheet of R.C. Case No. 20(A)/1996 is that when Deputy Accountant General had written to Regional Development Commissioner about the illegal withdrawal by the Department of Animal Husbandry from different Treasuries, a letter was written by this petitioner on 15/11/1990 to the then Chief Minister Laloo Prasad for entrusting the inquiry to the Regional Development Commissioner but not to police as the police would be harassing the accused persons. This was done as the petitioner was intending to save one of the accused K.N.Jha, who happens to be his close relative.
2. Recommendation for inquiry only against the Members of the Purchase Committee- The petitioner while was Leader of Opposition wrote letters on 23/08/1990 and 15/11/1990 to the then Chief Minister to the effect that the Vigilance inquiry be confined only to the Members of the Purchase Committee.
3. Acted on the recommendation of Sri Laloo Prasad and promoted Dr. Ram Raj Ram- While the petitioner was holding the post of the Chief Minister of Bihar, he on the recommendation made by the then Laloo Prasad, posted one Dr. Ram Raj Ram as Additional Director, Animal Husbandry though some dispute was there with respect to seniority in between Dr. Ram Raj Ram and Dr. R.S. Sharma.
4. Recommendation for extension of services of Dr. S.B.Sinha-
In this respect the allegation is that the petitioner had written a letter dated 05/12/1993 to the then Chief Minister recommending extension of the services of Dr. S.B. Sinha for two years though he was a prime accused in the case, still extension of two years was given by the then Chief Minister.
5. Received illegal gratification- Charges, which had been levelled against the petitioner is that the petitioner since had given patronage to certain accused persons, has received Rs. 50.00 lakhs from the supplier M.S.Bedi and urther Rs. 25.00 lakhs from another supplier Ganesh Dubey.
6. Recommended for telephone connection to daughter-in-law of Dr. S.B.Sinha- While the petitioner was the Member of the Parliament, wrote a letter to the General Manager, Department of Telecom, Patna to allot a telephone connection to the daughter-in- law of Dr. S.B.Sinha vide letter dated 17/01/1995."
10. Similar is the charges in all other four cases. Not only that from the counter affidavit, filed on behalf of the CBI, it does appear that the documents, upon which the prosecution would be placing reliance for proving those charges are also the same. Thus, there remains no doubt whatsoever that the petitioner has been facing prosecution in other four cases, i.e. R.C. Case No. 64(A)/1996, R.C. Case No. 47(A)/1996, R.C. Case No. 68(A)/1996 and R.C. Case No. 38(A)/1996, on the same allegation on which he has already been convicted in R.C. Case No. 20(A)/1996. In that event, the principle as depicted under well known maxim nemo debet bis vexari pro una et eadem causa, is applicable, which postulates the well established law that no one should be put on peril twice for the same offence. The fundamental right guaranteed under Article 20(2) of the Constitution has its roots in common law maxim nemo debet bis vexari. The said Article embodies a protection against the second trial and conviction for the same offence.
11. At the same time, the provision as contained in Section 300 of the Code of Criminal Procedure does also postulate that no man should be vexed for more than one trial arising out of identical act committed by him when an offence has already been subject to judicial adjudication, whether it ended in conviction or acquittal. The said provision reads as follows:-
"300. Person once convicted or acquitted not to be tried for the same offence (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221 or for which he might have been convicted under sub-section (2) thereof."
12. The principle what is embodied in the aforesaid section is that no one can be tried and convicted for the same offence or even for a different offence but on the same fact. Therefore, the crucial point would be as to whether the petitioner is being tried for the same offence for which he has already been convicted in one of the cases?
13. The Hon'ble Supreme Court had occasion to examine the scope of the clause "same offence" appearing in Section 300 of the Code of Criminal Procedure in a case of "State of Bombay- versus- S.L.Apte (AIR SC 1961
578)" where the appellant had challenged his prosecution when he was sought to be prosecuted for the offence under Section 105 of the Insurance Act after the appellant was convicted under Section 409 of the Indian Penal Code. The Hon'ble Supreme Court after considering the ingredients constituting those offences was pleased to hold that they are not sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore, the bar of Article 20(2) of the Constitution or Section 26 of the General Clauses Act, 1897 was not applicable. However, the Court while coming to that conclusion was pleased to observe in paragraph 13 which is as follows:-
"13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for 'the same offence'. The crucial requirement therefore for attracting the article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit o the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out."
Again in paragraph 16 it was observed as follows:-
"16. the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged."
14. Thus, what emerges out is that to ascertain whether two offences are the same or not test would not be the identity of the allegations but the identity of the ingredients of the offences.
Subsequently, the Hon'ble Supreme Court in a case of "Monica Bedi- versus- State of Andhra Pradesh [(2011) 1 SCC 284]" was pleased to hold as under:-
"It is thus clear that same facts may give rise to different prosecution and punishment and in such an event the protection afforded by Article 20(2) is not available. It is settled law that 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."
15. Further, Their Lordships by placing reliance on a decision of the Supreme Court of the United States was pleased to hold that test of identity of offences is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offence where two are defined by the statutes.
16. Here in the instant case, the question which has cropped up is not that the same facts constitute two different offences under different statutes, rather the question is as to whether the offences for which the petitioner was tried and convicted and the offences for which he is being prosecuted in two cases are identical or not ? In other words, ingredients of the offences in all five cases are the same or are totally different and further whether the same evidence is required to sustain them.
17. It has already been noticed from the charge sheets submitted in the aforesaid cases and also from the orders framing charges that the petitioner in one of the cases has already been tried and is being tried in other four cases on the same charges, which have been narrated above in detail, which are same and similar. Not only that even the documents upon which the prosecution has been relying upon are the same which does appear from the statement made in the counter affidavit.
18. In such situation, prosecution of the petitioner in other four cases, i.e. R.C. Case No. 64(A)/1996, R.C. Case No. 47(A)/1996, R.C. Case No. 68(A)/1996 and R.C. Case No. 38(A)/1996, once he has been convicted for the same charge in R.C. Case No. 20(A)/1996, cannot be maintained as it is hit by Section 30 of the Code of Criminal Procedure.
In view of the fact that it is the ingredients of the charges, which determine the issue as to whether the charges are the same or not, any other matter such as period of charge, place where fraudulent withdrawal was made and that the parties are different, hardly matters.
So far the decision rendered in the case of "R.K.Rana @ Rabindra Kumar Rana" (supra) is concerned, the Court having come to the conclusion that though the facts of different cases were overlapping to each other but the ingredients have been found to be some what different. In that situation, it was held that the case is not hit by the provision of the Section 300 of the Code of Criminal Procedure. But, here in the instant case as I have repeatedly said that the ingredients are the same, the prosecution of the petitioner in other four cases, cannot be allowed to be proceeded as it is hit by Section 300 of the Code of Criminal Procedure.
19. Accordingly, the entire criminal proceeding of R.C. Case No. 64(A)/1996, R.C. Case No. 47(A)/1996, R.C. Case No. 68(A)/1996 and R.C. Case No. 38(A)/1996, is hereby quashed so far it relates to this petitioner.
In the result, this application stands allowed.
(R.R.Prasad, J) Mukund/cp.3