Andhra HC (Pre-Telangana)
Vadlamani Srinivas @ Srinivas vs Union Of India, Ministry Of Finance, New ... on 12 February, 2013
Equivalent citations: AIRONLINE 2013 AP 142, (2013) 5 ANDHLD 746, (2014) 1 ALD(CRL) 513, (2014) 3 ALLCRILR 729
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.685; 691 of 2013 12-02-2013 Vadlamani Srinivas @ Srinivas Union of India, Ministry of Finance, New Delhi and two others. Counsel for the petitioner: Sri B. Nalin Kumar Counsel for respondents : Sri PSB Suresh Kumar; Sri T. Niranjan Reddy, Spl. Standing Counsel for CBI Sri Ponnam Ashok Goud, Asst. Sol. General. <GIST: >HEAD NOTE: ?Citations: 1) (2004) 3 SCC 553 2) (1997) 3 SCC 261 3) (1999) 4 SCC 526 4) 1995 Supp (3) SCC 643 5) (2006) 8 SCC 161 6) (1989) 1 SCC 204 7) (2003) 3 SCC 186 8) (2002) 4 SCC 638 9) AIR 1964 SC 1419 10) 2004(5) ALD 180 (DB) 11) AIR 1987 SC 2235 12) (1989) 4 SCC 635 13) (2006) 5 SCC 716 14) AIR 1966 SC 334 15) AIR 1962 SC 1210 16) AIR 1973 SC 964 17) (1977) 4 SCC 145 18) AIR 1962 SC 1183 19) (1974) 3 SCC 220 20) (1976)1 SCC 671 21) (1977) 1 SCC 486 22) (1998) 9 SCC 412 23) (1997) 5 SCC 536 24) AIR 1978 SC 597 25) AIR 1986 SC 733 26) (1991) 1 SCC 212 27) (2011) 1 SCC 534 28) AIR 1953 SC 325 29) (2011) 1 SCC 284 30) (1988) 4 SCC 655 31) 76 L Ed 306 32) AIR 1961 SC 578 33) AIR 1958 SC 119 34) (2012) 7 SCC 621 35) AIR 1954 SC 375 36) (2011) 2 SCC 703 37) (1999) 5 SCC 253 38) (1975) 3 SCC 742 39) 77 CLR 511 40) (1965) 1 Cri.LJ 120 41) AIR 1990 SC 334 42) AIR 2001 Rajastan 51 43) (2012) 10 SCC 1 44) (1984) 2 SCC 324 45) (1972) 1 All ER 801 46) (1995) 1 SCC 259 47) (1993) 3 SCC 29 48) (2001) 2 SCC 186 49. (2008) 12 SCC 481 WRIT PETITION Nos.685 and 691 of 2013 ORDER:
The petitioner in W.P. No.685 of 2013 is accused No.3, and the petitioner in W.P. No.691 of 2013 is accused No.7, in C.C. Nos.1, 2 and 3 of 2010 (hereinafter called "CBI cases") on the file of the Court of the XXI Addl. Chief Metropolitan Magistrate, Hyderabad (hereinafter called the "XXI ACMM Court"). They have invoked the jurisdiction of this Court seeking a mandamus to declare the proceedings in the CBI cases on the file of the XXI ACMM as arbitrary, discriminatory, violative of Articles 14 and 21 of the Constitution of India, and in violation of the provisions of the Prevention of Money Laundering Act, 2002 (PMLA). They seek a consequential direction from this Court to declare the whole proceedings in the C.B.I. cases as null and void.
The facts, to the extent necessary for adjudication of the rival submissions in these writ proceedings, are that a complaint was submitted to the CB-CID on 9.1.2009 alleging that the complainant had purchased shares in Satyam Computer Services Limited (SCSL) believing that the share prices would go up having regard to the figures reflected in the books of accounts but, subsequently, it was found that the records were manipulated as a result of which the share value of the shares of SCSL fell down. Crime No.2 of 2009 was registered by the CB-CID. The matter was, thereafter, transferred to the Central Bureau of Investigation (CBI). Along with several other accused, both the petitioners were arrested on 5.4.2009. While they were in judicial remand, the CBI completed investigation and filed the three charge sheets in C.C.Nos.1, 2 and 3 of 2010 for offences under Sections 120-B, 406, 409, 419, 420, 467, 468, 471 and 477-A IPC. The first charge sheet was filed on 7.4.2009, the second on 22.11.2009 and the third on 7.1.2010. The CBI cases were taken on file on 26.3.2010. In the meanwhile the Directorate of Enforcement (hereinafter called the "ED") registered ECIR/1/W20/2009 on 23.1.2009. It initiated investigation and, in the exercise of its powers under PMLA, passed five orders for provisional attachment of certain properties, which orders were subsequently confirmed by the adjudicating authority.
Both the petitioners were granted bail, in the CBI cases, by this Court in Crl.P. Nos.6181 and 6182 of 2010 dated 20.7.2010. On the matter being carried in appeal by the CBI, the Supreme Court, by its order in Criminal Appeal Nos.2068-2072 of 2010 dated 26.10.2010, cancelled the bail granted, among others, to the petitioners herein. In its order dated 26.10.2010, the Supreme Court noted the allegations of the CBI that the accused therein (which included the petitioners in these two Writ Petitions) were involved in one of the greatest corporate scams of the commercial world; it had caused a financial storm throughout the country, and the world over; lakhs of shareholders and others were duped; and the corporate credibility of the nation had received a serious set back. The Supreme Court, however, refrained from making detailed observations regarding the conduct of the accused as the trial was still pending, and should not be prejudiced in any manner. While observing that it would be slow in cancelling the bail already granted by the High Court, the Supreme Court, in the extra-ordinary circumstances of the case, was of the considered view that the order passed by the High Court granting bail to the accused could not be sustained in law and, accordingly, set aside the order. The accused (including the petitioners herein) were directed to surrender on or before 10.11.2010.
As the dispute in these writ proceedings revolves around the consequences of the directions of the Supreme Court, in its order dated 26.10.2010, the said order is extracted hereunder:
"........We are informed that charges have been framed on 25th October, 2010 and trial is scheduled to commence with effect from 2nd November, 2010. In these circumstances, we deem it appropriate to direct the Trial Court to take up the case on day-to-day basis and conclude the trial of this case as expeditiously as possible, in any event, on or before 31st July, 2011.
The Trial Court would avoid granting any undue adjournments, unless it becomes absolutely imperative.
The Trial Court is directed to decide the case without being influenced by any observations made by the High Court or by this Court in this order. The parties are directed to examine only material and most essential witnesses and fully cooperate with the Trial Court.
The accused shall be produced before the Trial Court on time, on every date of hearing, unless exempted by the orders of the Court.
The High Court of Andhra Pradesh is requested not to transfer the notified judicial officer until the trial is concluded.
In case, the trial is not concluded for any reason before 31st July, 2011, the respondents would be at liberty to approach the Trial Court for grant of bail. We have no doubt that the concerned Court would decide the bail application, if filed, expeditiously in accordance with law.
With these observations and directions these appeals are disposed of."
The trial in the CBI cases commenced and the examination in chief of 211 witnesses, (except the investigating officers), was completed during the period 8.11.2010 to 29.4.2011. Cross-examination of these 211 witnesses, by the defence counsel, was completed during the period 8.11.2010 to 2.5.2011. Thereafter 15 investigating officers were examined by the prosecution during the period 11.7.2011 to 29.7.2011.
In the meanwhile, the ED filed an application on 11.5.2011 requesting the Supreme Court to permit the Central Government, at the request of the ED, to approach the High Court of A.P, and request it to designate the learned XXI ACMM, who is of the rank of Additional Sessions Judge, to exercise jurisdiction as such within the meaning of Section 9(3) of Cr.P.C; and thereafter notify, in consultation with the Hon'ble Chief Justice of the A.P. High Court, the same as a "Court of Sessions" to be a "Special Court" within the meaning of Section 43(1) of PMLA for the purpose of conducting the trial arising out of the proposed complaint which would be filed within 15 days of passing of the orders or such other time as may be directed by the Supreme Court; and to pass orders that, notwithstanding such a designation as prayed for, the trial underway at the instance of the CBI shall continue uninterrupted in conformity with the orders of the Supreme Court dated 26.10.2010, and shall be completed on or before 31.7.2011 as directed by this Court. The ED prayed for an order wherein, upon the disposal/conclusion of the charge arising by the CBI charge-sheet, it would be open to the learned XXI ACMM, in the capacity of Special Court notified under Section 43(1) of PMLA, to take cognizance and proceed to hear and complete the trial of the complaint proposed to be filed by the ED. A counter affidavit was filed thereto (by one of the accused in the C.B.I. cases) on 12.10.2011 seeking dismissal of the said application contending that the High Court had no power to designate the XXI ACMM as a Special Court under PMLA; and the XXI ACMM, being inferior to the Special Sessions Judge, could not be notified as a Special Court under the provisions of PMLA.
As the trial in the CBI cases did not conclude by 31st July, 2011 the accused in the CBI cases, including the petitioners herein, again applied for bail. Their bail applications were dismissed both by the trial court and this Court. Against the orders passed by this Court, refusing to grant bail, the accused in the CBI cases, including the petitioners herein, approached the Supreme Court.
The petitioner in W.P. No.685 of 2013 filed Criminal Appeal No.2013 of 2011 against the order of this Court in Criminal Petition No.7458 of 2011 dated 30.8.2011. He was granted bail by the Supreme Court on 4.11.2011, on his giving an undertaking that he would not examine any of the given up prosecution witnesses as defence witnesses, in the trial pending before the Court of the XXI ACMM, in the CBI cases. The order of the Supreme Court dated 4.11.2011 has also been referred to extensively by counsel on either side. It is necessary, therefore, to extract the said order:
"4. ......the accused appellants have already undergone actual sentence of two years and eight months.
5. In pursuance to the directions of this Court, the appellants have filed affidavits before this Court stating therein that they would not examine the witnesses given up by the prosecution. Learned counsel appearing for the parties submitted that the parties have cooperated with the Trial Court and they would continue to do so. They have further undertaken to strictly adhere to the time schedule fixed by the Trial Court.
6. We once again request the Trial Court to ensure that the trial of these cases is completed as expeditiously as possible.
7. We have carefully considered totality of the facts and circumstances of these cases. The accused-appellants have already undergone actual sentence of two years and eight months. In this view of the matter, we deem it appropriate to release the accused-appellants on bail on their furnishing personal bonds for Rs.2.00 lakhs each with two solvent sureties each in the like amount, to the satisfaction of the Trial Court subject to the following conditions:
(i) The accused-appellants shall deposit their passports before the Trial Court if not already seized or deposited.
(ii) The accused-appellants shall not influence the trial either directly or indirectly and further investigation in any manner.
(iii) In case the indulgence granted by this Court is abused by the accused-
appellants, the prosecution would be at liberty to approach this Court for cancellation of the bail granted to them.
8. With the aforementioned observations and directions, these appeals and the criminal miscellaneous petitions are disposed of."
The investigation officers, who were examined earlier in the CBI cases, were cross-examined by the defence counsel during the period 19.7.2011 to 11.5.2012. Examination of prosecution witnesses was completed on 11.5.2012. The first accused recalled three witnesses during the period 19.6.2012 to 4.7.2012. Thereafter, the accused were examined under Section 313 Cr.P.C. by the XXI ACMM during the period 13.7.2012 to 30.7.2012. Section 313 Cr.P.C. questionnaire was given to them, which was answered by the accused during the period 4.9.2012 to 24.9.2012. Several witnesses were examined on behalf of the defence. Thereafter, written defence statements were filed during the period 25.9.2012 to 3.10.2012. In the course of trial of the CBI cases, the CBI examined 226 witnesses and marked 3137 exhibits. The defence filed about 75 exhibits and examined several witnesses. The oral evidence and documents filed by the CBI is said to run into voluminous pages.
In its order dated 10.12.2012, passed on the above referred application of the ED, the Supreme Court noted the contents of the application, the counter affidavit filed by the respondent, as also the apprehension expressed by the Learned Additional Solicitor General, appearing on behalf of the applicant - ED, that the order passed on 26.10.2010 may give an impression that only the Additional Chief Metropolitan Magistrate, who was trying the offences against the respondent, could hear and decide the matters also under PMLA. The Supreme Court clarified that the orders passed by it, on 26.10.2010 in Criminal Appeal Nos.2068-2072 of 2010, would not stand in the way of the High Court taking up the petition of the ED for designating a competent Court for passing appropriate orders under PMLA, keeping in mind the provisions of the relevant law. The Supreme Court made it clear that it had not expressed any opinion in the order as to which was the Court that was to hear the proceedings under PMLA, and that the High Court may consider the issue in accordance with law. The case of the petitioners, in short, is that in view of categorical statement made by the ED before the Supreme Court, that they were contemplating to file a criminal complaint to prosecute the accused for committing the offence of money laundering as defined under Section 3 and punishable under Section 4 in the Special Court notified under Section 43 (1) of PMLA, continuance of the CBI cases on the file of XXI ACMM would be illegal, without jurisdiction and contrary to the provisions of PMLA; a special Court is designated under Section 43(1) and 44 of PMLA, which would have jurisdiction to try such offences to the exclusion of the normal courts of jurisdiction; any further continuance of proceedings in the CBI cases, and compelling the accused to advance their arguments, would result in disclosure of their defence which would give the ED an opportunity to fill up the defects and lacunae in the prosecution, causing prejudice to the accused; this would be in violation of Article 21 of the Constitution of India; the procedure adopted by the ED and the CBI, in filing one prosecution after another, is arbitrary, discriminatory, and unreasonable; having regard to the stand taken by the ED before the Supreme Court, in Crl.M.P. No.11277-11281/2011 in Crl.A. Nos.2068-2072/2010, there was no warrant for proceeding further in the CBI cases; it would be an abuse of process of Court to permit continuance of the proceedings in the CBI cases; and it would result in miscarriage of justice.
In the counter-affidavit filed on behalf of the 3rd respondent - CBI, it is stated that any stay of proceedings in the CBI cases before the XXI ACMM would be in disregard to the directions, with respect to the trial, contained in the order of the Supreme Court dated 26.10.2010; pursuant to the said directions, the trial in the CBI cases is at an advanced stage, and only defence arguments are required to be advanced; the present writ petition has been filed solely to delay conclusion of the trial and frustrate the course of law; it is the admitted position that no complaint has been filed till date by the ED before the Special Court under Section 45 of PMLA; on mere apprehension that such a complaint may be filed, and on the further erroneous basis that if such a complaint is filed only the Special Court would have jurisdiction to try the CBI cases, the present Writ Petitions have been filed; the offence under Section 3 of PMLA is separate and distinct from the offences under Sections 120-B IPC read with Sections 420, 419, 467, 468, 471, 477-A, 201 and 409 of IPC with which the accused have been charged in the CBI cases; the contention that, if the petitioner is required to put forward its defence at this stage, there is every likelihood of the E.D. filling up the gaps in the subsequent trial in incorrect; resultantly, no question of prejudice can arise either to the accused or to the prosecution if the trial in the CBI cases is continued and concluded; the Special Court under PMLA will not have jurisdiction to try offences which are the subject matter of trial in the CBI cases; the Writ Petition as filed is speculative and premature; it is incorrect to state that, even according to the E.D, the cases, which are now being tried by the XXI ACMM, must be transferred to the Special Court whenever designated; the prayer of the ED before the Supreme Court shows that the trial, in the offence of money laundering under PMLA may be taken up by the same Court after conclusion of the CBI trial; the E.D. did not take the stand that the CBI cases should be transferred to the Special Court whenever designated; it is only speculative to state that if the CBI cases are decided, even before a Special Court is designated under the PMLA, prejudice may be caused to the petitioner; the Special Court, designated under the PMLA, does not have exclusive jurisdiction to try all scheduled offences, besides the offence under Section 3 of the Act; the offence of money laundering is a distinct and separate offence from the scheduled offences defined in Section 2(1)(y) of the Act; the process or activity connected with the proceeds of a crime, and projecting it as untainted property, is the offence of money laundering, and is punishable under Section 4; the offences, which the petitioners and other accused are charged, are under the IPC which are not scheduled offences; the offence of money laundering is a distinct offence which may also involve altogether different accused; and Section 44 of PMLA relates only to the territorial jurisdiction of the Special Court, and does not confer jurisdiction on such Court to try all scheduled offences.
In its counter-affidavit, the 2nd respondent-ED would submit that the present writ petition is filed only to further delay the process of filing of the complaint by them; investigation by the ED has reached the final stages; they were on the verge of concluding investigation; they have already attached 355 properties valued at Rs.1075 crores; assets worth Rs.822 crores were attached recently during the month of October, 2012; the ED had approached the Supreme Court, by way of its application dated 11.5.2011, requesting that the XXI ACMM be designated as a Court of Session to be a "Special Court" within the meaning of Section 43(1) of the PMLA; in view of the earlier order of the Supreme Court dated 26.10.2010, wherein certain observations were made while cancelling bail to the accused, any complaint filed under PMLA by the ED in the already designated 'Special Court' would have resulted in transfer of the trial of scheduled offence to the Special Court under PMLA, which would have been contrary to the directions of the Supreme Court; it would have also disrupted the trial of the scheduled offences in the CBI cases which is already at an advanced stage; the application filed by the ED on 11.05.2011 was disposed of by the Supreme Court on 10.12.2012; during this period the complaint, for the offence of money laundering, could not have been filed; now that the matter has been disposed of, the Central Government has addressed a letter to the Registrar-General of the High Court with regards designation of XXI ACMM as a Special Court in terms of Section 43(1) of PMLA, and the matter stands at that stage; once the XXI ACMM court is so designated, the complaint for the offence of money laundering (Section 3 of PMLA) would be filed under Section 45; the prayer of the ED, before the Supreme Court, clearly reflected that the trial for the offence of money laundering under PMLA may be taken up by the same Court; the petitioner's contentions that their defence would be known to the ED; any lacunae in such defence would be addressed by them in their complaint; and this would cause prejudice to their interests, apart from being violative of Article 21 of the Constitution of India; are not tenable; the defence of the petitioner before the XXI ACMM Court would be relevant only for the offences charged in the CBI cases; the offence of money laundering, under Section 3 of PMLA, is distinct from the scheduled offences, as the evidence to be adduced in the complaint would be specific to the offence of money laundering; they have passed five orders of provisional attachment of properties after initiation of investigation and registration of ECIR No.01/HZO/2009; in its order, in Crl.M.P. No.11277 - 11281 in Crl.Appeal No.2068 - 2072/2010 on 11.05.2011, the Supreme Court has not expressed any view as to which Court should hear proceedings under PMLA, and has left it to the High Court to consider the issue in accordance with law; the Joint Secretary (Revenue), Ministry of Finance, Government of India, New Delhi, vide letter dated 21.12.2012, requested the High Court to designate the XXI ACMM Court as a Special Court for conducting trial of the complaint under PMLA; as the issue of designating the XXI ACMM Court as a designated Court is pending, the present Writ Petition is not maintainable; the speculative litigation indulged in by the petitioners should not be entertained; the ED would file the complaint under PMLA, after receiving appropriate directions from this Court in response to their letters dated 21.12.2012, 09.01.2013 and 10.01.2013 addressed by the Joint Secretary (Revenue), Ministry of Finance, New Delhi to the Registrar - General of the High Court; the speculative grounds urged by the petitioner, projecting that the complaint would be filed before the Special Court and the same would contravene the procedure contemplated in the PMLA, are imaginary and baseless; and the Writ Petition is misconceived, premature and vexatious in nature.
In the affidavit filed in reply to the counter affidavits of both respondents 2 and 3, it is stated that the CBI was twisting facts to proceed with the trial in the CBI cases; ED had taken a specific stand before the Supreme Court, in Crl.M.P. No.11277 - 11281 in Crl.Appeal No.2068 - 2072/2010, that, on conclusion of the investigation conducted by it, it is now ready to file a criminal complaint to prosecute the accused, including the petitioners, for committing the offence of money laundering as defined under Section 3 and punishable under Section 4, in the Special Court notified under Section 43(1) of PMLA; the petitioners are only seeking to protect their legal rights, and are not desirous of unnecessarily postponing trial in the criminal cases; having regard to the stand taken by the ED before the Supreme Court, that it is now contemplating to file a complaint within fifteen days of passing orders in the matter of designation of the XXI ACMM Court as a Special Court under PMLA, the present Writ Petition came to be filed; it is incorrect to state that as the CBI cases have reached the stage of defence arguments, the petitioners were disentitled from filing these Writ Petitions; the stand of the ED is clear that, on filing a complaint, the trial in the present CBI cases will have to be transferred to the PMLA Court, and be tried along with the complaint filed by the ED; the contention that the offence under Section 3 of PMLA is separate and distinct from the offences under IPC is not valid in view of the specific provisions contained in Section 43(2) of PMLA; the filing of a complaint by the ED is imminent; the petition filed by them before the Supreme Court goes to show that they are ready to file the complaint; in its counter-affidavit the ED has admitted that they are ready to file the complaint before the Special Court; the contention of the CBI that the Special Court would not have jurisdiction to try the offences, which are the subject matter of the CBI cases, would run counter to the stand of the ED; the orders of the Supreme Court dated 26.10.2010 required trial to conclude on or before 31.07.2011, which has not concluded so far; the Supreme Court subsequently passed an order dated 04.11.2011 under which bail was granted to the petitioner; this apart, the ED filed Crl.M.P. No.11277 - 11281 of 2011 which introduced an altogether a new dimension to the case on hand; this apart the Supreme Court, in its order dated 10.12.2012, left it open to the ED to approach this Court; thus the whole issue is open and at large; having regard to the subsequent developments, the petitioners are constrained to file the Writ Petition; any order passed in the Writ Petitions granting them relief would not be in disregard of the order of the Supreme Court dated 26.10.2010; the Writ Petitions have not been filed to delay and frustrate conclusion of the trial in the CBI cases; the contention, that the offences of which the petitioners are charged in the CBI cases are distinct and separate from the offence under Section 3 of PMLA, is incorrect having regard to the provisions of PMLA; the contention that no prejudice can be caused to the petitioner is misconceived; the CBI cases and the PMLA compliant to be filed by the ED must co-exist; disclosing of the defence in the CBI cases would cause prejudice to the rights of the petitioner herein as the ED would then have every opportunity to fill up the lacunae in the complaint to be filed under PMLA; this would be fatal to the petitioner as the Special Court constituted under PMLA would also try the schedule offences at the same trial; the offence may be different, but the factual position is interlinked; it cannot be said that the offence under PMLA is a distinct offence; while the CBI and the ED may be complacent about their case, they cannot undermine the serious lapses fatal to the prosecution in the CBI cases which, if brought out in the defence arguments, would prejudice the petitioner in the complaint which the ED claims is ready for filing; the averment in the counter-affidavit of the ED that they were on the verge of concluding investigation is contrary to their assertion, in Crl.M.P. No.11277 - 11281 of 2011, that, on conclusion of investigation, it is now contemplating to file a criminal complaint under Section 4 of PMLA; their averment regarding attachment or properties lends credence to the fact that the ED would file the complaint; the present Writ Petition is not premature as the trial in the CBI cases are, presently, at the stage of defence arguments; since the trial contemplated under PMLA and Cr.P.C. must happen together on a complaint being filed by the ED, divulging the defence arguments before the prosecution case is closed before the Special Court under PMLA, would cause grave prejudice to the accused; the averments in the counter-affidavit of the ED shows that they are planning to file a complaint to be heard in the same trial, along with the trial in the CBI cases, as contemplated under PMLA; from the counter-affidavit of ED, it is clear that a complaint being filed by them under PMLA would result in transfer of the trial of the scheduled offences to the Special Court under PMLA; this strengthens the case of the petitioner that trial in the CBI cases is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India and PMLA; offences in the CBI cases can be tried only by the Special Court, and not by the XXI ACMM; the assumption of the ED that the trial, of the complaint to be filed by them, can be taken up after disposal of the CBI cases, is erroneous since the offence under Section 3 of PMLA and the scheduled offences must sbe taken up in the same trial; the basis of the offence of money laundering is the presumption regarding proceeds of a crime which can only be proved by the scheduled offences for which the defence arguments in the CBI cases will be crucial; this apart, the fact that the subject matter of investigation by the CBI and the ED involve alleged gains made by the accused, and alleged laundering of the said gains by purchase of properties, would be common in both the CBI cases and the complaint to be filed by the ED, as that is the basis on which the properties of the accused have been attached by the ED; there is certainty of the ED filing the complaint in the Special Court, in view of its letters addressed to the High Court on 09.01.2013 and 10.01.2013; the ED's contention that the High Court would make the XXI ACMM Court as a Special Court under PMLA is a matter of speculation; as there is a designated Sessions Court under PMLA that, by itself, entitles the petitioner for a stay of proceedings in the CBI cases as prejudice would be caused to the petitioners if their defence arguments are heard; even if the XXI ACMM Court is designated as a Special Court under PMLA, it is still a fit case to stay the proceedings in the CBI cases as prejudice would be caused to the petitioners if the defence arguments are heard.
After the prosecution advanced final arguments, the matter was posted to 10.1.2013 for arguments of the defence. Both these Writ Petitions were filed on 7.1.2013 and this Court by its order dated 10.1.2013, while ordering notice before admission and directing that the cases be listed on 24.1.2013, granted interim stay of further proceedings in the CBI cases for a period of four weeks. When the cases came up on 24.1.2013 both the standing counsel for the CBI, and the standing counsel for the ED, expressed urgency and requested that the matter be taken up at the earliest. However, at the request of the petitioner's counsel, both the Writ Petitions were directed to be listed on 31.01.2013 on which date the CBI filed its counter affidavit. As the counsel for the petitioners sought time to file a reply thereto, the Writ Petitions were directed to be listed on 6.2.2013. At the request of counsel on either side, that the Writ Petitions could be finally disposed of at the stage of admission, the matter was heard in detail on 6th, 7th and 8th February, 2013. Elaborate arguments were advanced by Sri D. Prakash Reddy, Learned Senior Counsel appearing on behalf of the petitioners and Sri T. Niranjan Reddy, Learned Standing Counsel for the CBI. Sri Gopalakrishna Gokhale, Learned Counsel for the ED, made brief submissions. Written submissions were invited by this Court, and were filed by the counsel for the petitioners, and the Standing counsel for both the CBI and the ED, on 8.2.2013.
The rival submissions of Counsel on either side can, conveniently, be examined under different sub-heads.
I. ARE THESE WRIT PETITIONS MAINTAINABLE?
Sri T. Niranjan Reddy, Learned Standing Counsel for the CBI, would submit that in view of the directions of the Supreme Court in its orders dated 26.10.2010 and 04.11.2011, and the undertaking given by the petitioners and their counsel to the Supreme Court, the remedy which the petitioners may have is only to approach the Supreme Court, and the Writ Petitions as filed are not maintainable. While entertaining an objection as to the maintainability of a writ petition, the Court should bear in mind that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature, and is not limited by any other provisions of the Constitution. (ABL International Ltd v. Export Credit Guarantee Corporation of India Ltd1). The power of judicial review, vested in the High Courts under Article 226, is an integral and essential feature of the Constitution, constituting a part of its basic structure. (L. Chandra Kumar v. Union of India2). Article 226 of the Constitution is couched in the widest possible terms. The power of the High Court thereunder can be exercised when any action is against any provision of law. (K. Venkatachalam v. A. Swamickan3). There are no unreviewable discretions under the constitutional dispensation. The overall constitutional function, to ensure that constitutional/statutory authorities function within the sphere of their respective constitutional/statutory authority, is that of the Courts, including the High Court. (Election Commission of India v. Union of India4). The function of determining whether the act of a statutory functionary falls within the legislative conferment of power is a matter for the Court. (Epuru Sudhakar v. Govt. of A.P.5; Kehar Singh v. Union of India6). If exercise of the power of Judicial review under Article 226 cannot be barred even by a Constitutional provision, as it forms part of the basic structure of the Constitution, it does not stand to reason that the power of judicial review can be barred by Legislation - plenary or subordinate. It would, therefore, be difficult to hold that this Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, should not even entertain a Writ Petition of this nature or that the Writ Petitions as filed are not maintainable.
II. EXERCISE OF JURISDICTION UNDER ARTICLE 226 IS DISCRETIONARY:
While the jurisdiction of this Court to entertain the Writ Petitions cannot be, and is not, barred, it is nonetheless a matter in the discretion of this Court, while exercising jurisdiction under Article 226 of the Constitution of India, to grant or refuse the relief sought for. In this context it is necessary to bear in mind that unlike the jurisdiction conferred upon a statutory tribunal, which must be construed in terms of the Statute under which it was created, the power of judicial review of the High Court is of wide amplitude. It is subject to certain restrictions which the High Court imposes on itself as a measure of self-discipline. The scope of judicial review may vary from case to case depending upon the nature of the matter, as also the statute to be dealt with by the Court. (Cellular Operators Assn. of India v. Union of India7). While the discretionary powers of the High Courts under Article 226 cannot be fettered, such powers must be exercised along recognised lines, and is subject to certain self-imposed limitations. The expression "for any other purpose" in Article 226 makes the jurisdiction of the High Courts more extensive, but yet its exercise is with certain restraints and within certain parameters. The High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition, and has imposed upon itself certain restrictions in the exercise of this power. (ABL International Ltd.1; Director of Settlements, A.P. v. M.R. Apparao8).
As the exercise of jurisdiction under Article 226 is discretionary, it is not to be exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will, ordinarily, be exercised subject to certain self-imposed limitations, (Thansingh Nathmal v. Supdt. of Taxes9), and is not to be issued as a matter of course. A writ of mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. (C.R. Reddy Law College Employees' Association, Eluru, W.G. District v. Bar Council of India, New Delhi10). Even if a legal flaw might be electronically detected, this Court would not interfere save manifest injustice or unless a substantial question of public importance is involved. (Rashpal Malhotra v. Mrs. Saya Rajput11; Council of Scientific and Industrial Research v. K.G.S. Bhatt12). III. RIVAL SUBMISSIONS ON WHETHER OR NOT PROCEEDINGS IN THE CBI CASES SHOULD BE DEFERRED:
Before examining the submissions of Sri T. Niranjan Reddy, Learned Standing Counsel for the CBI, that this Court should not exercise discretion to grant the relief sought for in these Writ Petitions, it is convenient to examine, in the first instance, the submissions of Sri D. Prakash Reddy, Learned Senior Counsel appearing on behalf of the petitioners. Learned Senior Counsel would submit that continuance of the CBI cases, on the file of the XXI ACMM, was illegal as the ED had stated, in Crl.M.P. Nos. 11277 and 11281 of 2011 in CrI.M.P. No.2068- 2072/2010 filed before the Supreme Court, that, on conclusion of its investigation, it is now contemplating filing a criminal complaint for the offences under Section 4 of PMLA. Learned Senior Counsel would submit that several grounds were raised in the Writ Petitions including that PMLA is a special enactment which deals with the offence of money laundering; the offence of money laundering is triable only by a Special Court constituted under Section 43 of PMLA; while trying the offence of money laundering, the Special Court alone would have jurisdiction to try the scheduled offences, and also any other offence with which an accused may be charged under Cr.P.C. [Section 43 (2) and 44 (1)a of the Act]; and the stand of the ED before the Supreme Court in the Crl.M.Ps is also that, since PMLA contemplates that the offence under Section 4 of the Act and the scheduled offences shall be tried by the Special Court, a separate trial for the scheduled offence in other courts and a separate trial of offences under PMLA before the Special Court may contravene the procedure established by law violating Articles 14 and 21 of the Constitution of India.
Learned Senior Counsel would, however, restrict his submissions before this Court to the validity of continuance of proceedings in the CBI cases before the XXI ACMM, contending that they were at the stage of defence arguments; and, if the defence arguments were advanced including pointing out the contradictions and omissions in the prosecution's case, it would enable the ED to fill up such gaps while filing its complaint, and in the consequent trial, before the designated Special Court under PMLA; the records, in the present case, are voluminous; a bulk of it contains electronic data and copies thereof; from out of 3137 documents, the admissibility of nearly half the documents are under dispute; these documents were marked subject to the objections on their admissibility being decided at the time of final judgment; there were several technical aspects relating to electronic data, and copies thereof, which would be pointed out during the course of defence arguments; if these were exposed, even before the complaint was filed by the E.D before the Special Court, it would give them ample opportunity to fill and cover up the gaps in the complaint, and in the consequent trial; this would not only be contrary to fair procedure, but would also be arbitrary and violative of Articles 14 and 21 of the Constitution of India; and would cause grave prejudice to the petitioners.
On the other hand, Sri T. Niranjan Reddy, Learned Standing Counsel for C.B.I, would submit that the trial has been conducted as per the procedure prescribed to try warrant cases on a police report; under Section 243 Cr.P.C, the accused has the right to produce defence witnesses, and to file defence statements; the petitioners have already divulged their defence in their Section 313 Cr.P.C. examination; even under Section 242 Cr.P.C, they have divulged their defence by producing several defence witnesses before the trial Court; the petitioners have already filed their defence statements after the Section 313 Cr.P.C. examination; once the procedure contemplated under Section 242 Cr.P.C. is completed, wherein the accused have already divulged their defence, there can be no further disclosure of their defence by the accused; and the petitioners' contention that the arguments to be made by them, under Section 314 Cr.P.C, would result in disclosure of their defence is baseless, and contrary to the provisions of Cr.P.C, as the accused have already divulged their defence before and during the Section 313 CrPC examination. Learned counsel would rely on State of Karnataka v. Annegowda13 in this regard. According to the Learned Counsel, the petitioners cannot contend that they have not so far disclosed their defence and, while submitting their arguments, they may have to disclose their defence, thereby causing the accused prejudice; the petitioners have already divulged their defence under the provisions of Cr.P.C, and nothing is left for them to further disclose; and the loopholes, pitfalls, omissions and contradictions, if any, in the CBI cases are already part of the record.
The submissions made before this Court, by the learned counsel who appeared on behalf of the ED, were, to put it mildly, garbled and incoherent. The only aspect which this Court understood from his submissions is that the E.D. was also supporting the stand of the C.B.I. that the trial in the CBI cases should proceed, and not be stalled. In the written submissions filed on behalf of the ED, it is contended that the E.D. has concluded its investigations, and is ready to file a complaint under Section 45 of PMLA; an I.A was filed by them before the Supreme Court on 11.5.2011, in Crl.A. No.2068- 2072/2010, stating that on conclusion of its investigations the E.D. was contemplating filing a criminal complaint under Section 45 of PMLA to prosecute the accused for committing the offence of money laundering; the said I.A. was filed in view of the order of the Supreme Court, in Crl.A. No.2068-2072/2010 dated 26.10.2010, directing the trial court to take up the case on a day to day basis, and conclude the trial expeditiously before 31.7.2011, and in requesting the High Court of Andhra Pradesh not to transfer the notified judicial officer of the XXI ACMM Court until the trial was concluded; any complaint filed by the E.D, in the already designated 'Special Court' under PMLA, would have resulted in transfer of the trial of the scheduled offences to the Special Court under PMLA, in view of the provisions contained under Section 44 of the PMLA; this would have been contrary to the directions of the Supreme Court; and it would have also disrupted the trial of the scheduled offences which is already at an advanced stage.
IV: WRIT OF MANDAMUS: ITS SCOPE:
As noted hereinabove, the petitioners seek a mandamus from this Court to declare the proceedings in the CBI cases, on the file of the XXI ACMM Court, as arbitrary, discriminatory, violative of Articles 14 and 21 of the Constitution of India, and in violation of PMLA. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. (M.R. Appa Rao8). The chief function of a writ of mandamus is to compel performance of the public duties prescribed by a statute and to keep subordinate Courts/tribunals, and officers exercising public functions, within the limits of their jurisdiction. (Lekhraj Satramdas Lalvani v. N.M. Shah, Deputy Custodian-cum-Managing Officer14; Rai Shivendra Bahadur (Dr) v. Nalanda College15 and Umakant Saran Dr v. State of Bihar16; Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh17).
One of the conditions for exercising power under Article 226, for issuance of a mandamus, is that the Court must come to the conclusion that the aggrieved person has a legal right, and that such a right has been infringed. The applicant has to satisfy the Court that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought. The duty that may be enjoined by a mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. (M.R. Apparao8; Kalyan Singh v. State of U.P.18). No one can seek a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one, suffering a legal grievance, can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (Halsbury's Laws of England, 4th Edn., Vol. I, para 122; State of Haryana v. Subash Chander Marwah19; Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed20; Ferris: Extraordinary Legal Remedies, para 198; and Mani Subrat Jain v. State of Haryana21). In order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority, and the aggrieved party has a legal right under the statute to enforce its performance. (Subash Chander Marwaha19; Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College15). If there is no statutory basis for the claim, and there is no provision in the statute imposing an obligation, it would not furnish a ground for issuance of a writ of mandamus. (Union of India v. E. Merck (India22).
V. CAN A MANDAMUS BE ISSUED TO THE XXI ACMM COURT TO DEFER PROCEEDINGS IN THE CBI CASES?
Let us now examine whether there is any constitutional or statutory violation requiring this Court to exercise its discretion to issue a mandamus to the XXI ACMM Court to defer proceedings in the CBI cases, or to declare continuance of such proceedings as null and void. It is not even the petitioners' case that any provision of the Cr.P.C. has been violated by the XXI ACMM while conducting trial in the CBI cases. Their grievance is that, if they are called upon to put forth their defence arguments during which they would be required to point out the pitfalls and loopholes in the prosecution's case, it would enable the E.D. to fill up such gaps while filing their complaint before the Special Court under the PMLA. As noted hereinabove, not only has the CBI already examined 226 witnesses and 15 investigating officers, these witnesses were elaborately cross-examined by the defence. Around 75 exhibits were marked, and several witnesses were examined, on behalf of the defence. Examination of the accused under Section 313 Cr.P.C is also complete, and the accused are also said to have filed their defence statements thereafter.
While Sri T. Niranjan Reddy, Learned Standing Counsel for CBI, would assert that the petitioners had also filed their defence statements, Sri D. Prakash Reddy, Learned Senior Counsel appearing on behalf of the petitioners, initially disputed this assertion. However, when Sri T. Niranjan Reddy requested this Court to summon the records from the trial Court to verify his assertion, Sri D. Prakash Reddy, Learned Senior Counsel, fairly agreed that the fact, whether or not the petitioners had also filed their defence statements, was irrelevant as the submissions made before this Court on their behalf related only to their Counsel putting forth defence arguments which may result in the E.D. taking undue advantage thereby to fill up the pitfalls and loopholes in the prosecution's case as pointed out by the defence counsel while presenting their arguments in the CBI cases. Section 242 Cr.P.C. relates to the evidence of the prosecution. In the present case the evidence of the prosecution is complete, and all the prosecution witnesses have already been elaborately cross-examined by the defence. Section 243 relates to the evidence for the defence. Several defence witnesses have already been examined, and 75 documents have been marked as exhibits on behalf of the defence. All the accused, including the petitioners herein, have also been examined under Section 313 Cr.P.C. They are also said to have filed their defence statements before the XXI ACMM under Section 243(1) Cr.P.C. The submission of Sri T. Niranjan Reddy that the evidence of the defence has already been disclosed cannot, therefore, be said to be without merit.
VI: HAS ANY STATUTORY PROVISION BEEN VIOLATED BY THE XXI ACMM IN NOT DEFERRING/POSTPONING THE DEFENCE ARGUMENTS IN THE CBI CASES?
Even otherwise, no provision in the Cr.P.C. which confers power on the XXI ACMM to defer/postpone defence arguments, either for a limited duration or indefinitely, has been brought to the notice of this Court. In this context it is useful to note that, in Annegowda13, the Supreme Court held : -
".......... There is no provision in the Code of Criminal Procedure which enables the court to postpone the examination of the accused under Section 313 CrPC till the completion of the trial in other cases. Merely because certain other charge-sheets have been filed against the same accused for similar offences cannot be a ground to postpone the examination of the accused under Section 313 CrPC. The apprehension of the accused-respondent that if his statement is recorded under Section 313 CrPC he would be required to divulge his defence and in that event he would be prejudiced in the trial of other cases filed against him is without any basis and foundation. It may be taken note of that as many as 25 witnesses have already been examined and the witnesses have already been cross-examined by the advocate for the accused. It is reasonable to infer that during the course of his cross-examination the accused-respondent must have disclosed his defence. The statement on behalf of the accused that he is required to divulge his defence only during his examination under Section 313 CrPC cannot be accepted. The charges in other cases against the accused may be under the same provisions of the Penal Code and may also be similar, but documentary or oral evidence may be different which ultimately has to be appreciated and evaluated by the court separately in each case. It can be taken judicial note of and kept in mind that completion of trial in other ten charge- sheets may take some more time. The High Court has materially erred in coming to the conclusion that under the provisions of Section 242 CrPC recording of statement of the accused-respondent under Section 313 could be deferred till the trial in other cases involving similar transactions against the accused is completed.........." (emphasis supplied) Unlike in Anne Gowda13 where the postponement sought was of the examination of the accused under Section 313 Cr.P.C, in the present case even that stage has already been crossed; the defence statements, under Section 243(1) Cr.P.C, were filed thereafter; and the prosecution has completed its arguments. It is only for the defence arguments that the matter is pending before the XXI ACMM who is required only to pronounce judgment, in the CBI cases, thereafter. It is not even the case of the petitioners, in the Writ Petitions filed before this Court, that any provision of the Cr.P.C. has been violated by the XXI ACMM in not deferring defence arguments. No provision under the PMLA, which debars offences under the IPC from being tried by the XXI ACMM till a complaint is lodged under PMLA, has also been brought to the notice of this Court. It is evident, therefore, that no statutory provision has been violated necessitating issuance of a writ of mandamus. It is necessary to bear in mind that while the jurisdiction of the High Courts, under Article 226 of the Constitution, remains unaffected by legislative provisions, such power is to be exercised to effectuate the regime of law, and not for abrogating it. Even while acting in exercise of the said Constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them. (Mafatlal Industries Ltd. v. Union of India23).
VII. DOES FAILURE TO DEFER DEFENCE ARGUMENTS IN THE CBI CASES VIOLATE ARTICLES 14 AND 21 OF THE CONSTITUTION OF INDIA:
Let us now examine the petitioners contention that, failure to defer defence arguments in the CBI cases, would violate their fundamental rights under Articles 14 and 21 of the Constitution of India. All that Article 21 stipulates is that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It is no doubt true that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; the principle of reasonableness is an essential element of equality or non-arbitrariness which pervades Article 14; the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14; it must be "right, just and fair", and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all; and the requirement of Article 21 would not be satisfied. (Maneka Gandhi v. Union of India24). While the procedure established by law, before depriving a person of his life or personal liberty, must no doubt be fair and reasonable, it is not even contended before this Court that the procedure being followed by XXI ACMM in trying the CBI cases is not fair and reasonable. Except to state that failure to defer the defence arguments is arbitrary, discriminatory and in violation of Article 14 of the Constitution of India, the petitioners have not been able to point out any provision of law which obligates the XXI ACMM to defer defence arguments indefinitely or even till a complaint is filed by the E.D. before the Special Court. When violation of Article 14 is alleged, the burden rests on the petitioner to establish by clear and cogent evidence that the State has been guilty of arbitrary discrimination. There is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 to prove the assertion. The person who alleges arbitrariness must alone prove it. (Soosai v. Union of India25; Shrilekha Vidyarthi (Kumari) v. State of U.P.,26). The petitioners have miserably failed to discharge this burden. VIII: SCOPE OF ARTICLES 20(2) OF THE CONSTITUTION OF INDIA AND SECTION 300 Cr.P.C.
It is not as if the petitioners are without remedy, even if they adduce arguments in their defence in the CBI cases, for, on pronouncement of judgment by the XXI ACMM, they would be entitled not only for protection under Article 20(2) of the Constitution of India, but also to the protection of Section 26 of the General Clauses Act and Section 300 Cr.P.C. including the defence of issue- estoppel. The fundamental right, guaranteed in Article 20(2) of the Constitution of India, enunciates the principle of autrefois convict or 'double jeopardy'. The roots of that principle are to be found in the well-established rule of the common law of England 'that where a person has been convicted for an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence'. To the same effect is the ancient maxim Nemo bis debet puniri pro uno delicto, that is to say that no one ought to be twice punished for one offence or as it is sometimes written pro eadem causa that is, for the same cause. (Institute of Chartered Accountants of India v. Vimal Kumar Surana27; Maqbool Hussain v. State of Bombay28). Article 20(2) has its roots also in the common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. (Monica Bedi v. State of Andhra Pradesh29).
'The plea of autrefois convict or autrefois acquit avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter. To operate as a bar the second prosecution, and the consequential punishment thereunder, must be for 'the same offence'. If, however, the two offences are distinct, then, notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
Broadly speaking a protection against a second or multiple punishment for the same offence includes a protection against re-prosecution after acquittal, a protection against re-prosecution after conviction and a protection against double or multiple punishment for the same offence. Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if "each provision requires proof of an additional fact which the other does not". In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. (Vimal Kumar Surana27; Maqbool Hussain28; Halsbury's Laws of England, Hailsham Edn., Vol. 9, pp. 152-53, para 212.; State of Bihar v Murad Ali Khan30; Blockburger v. United States31; State of Bombay v. S.L. Apte32; Leo Roy Frey v. Supdt., District Jail33).
In order to invoke the protection of Article 20(2), there must have been a prosecution as well as a punishment in respect of the same offence before a court of law of competent jurisdiction or a tribunal required by law to decide the matters in controversy judicially on evidence. The words "prosecuted" and "punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. The proceedings contemplated therein are in the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution, in this context, would mean an initiation or starting of the proceedings of a criminal nature in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. (Monica Bedi29; Maqbool Hussain28; Sangeetaben Mahendrabhai Patel v. State of Gujarat34; S.A. Venkataraman v. Union of India35).
Section 300(1) CrPC is wider than Article 20(2) of the Constitution. While Article 20(2) of the Constitution only states that "no person shall be prosecuted and punished for the same offence more than once", Section 300(1) CrPC states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. (Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao36). While Article 20(2) embodies the principle of autrefois convict, Section 300 Cr.P.C. combines both autrefois convict and autrefois acquit. Section 300 Cr.P.C. has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Section 221(1) Cr.P.C, or he could have been convicted for such other offence under Section 221(2) Cr.P.C. (State v. Nalini37) The well- known maxim "nemo debet bis vexari pro eadem causa" (no person should be twice vexed for the same offence) embodies the well-established common law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 Cr.P.C. is that no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts. (Nalini37) .
There is an issue-estoppel if it appears by the record of itself, or as explained by proper evidence, that the same point was determined in favour of a person in a previous criminal trial which is to be brought in issue on a second criminal trial of the same person. There must be a prior proceeding determined against the prosecution necessarily involving an issue which again arises in a subsequent proceeding by the prosecution against the person. In order to invoke the rule of issue-estoppel not only the parties in the two trials must be the same but also the fact-in-issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial. (Ravinder Singh v. State of Haryana38; King v. Wilkes39). Issue-estoppel does not prevent the trial of an offence as does autre fois acquit but only precludes evidence being led to prove a fact-in-issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. (Manipur Administration v. Thokchom, Bira Singh40).
Sri D. Prakash Reddy, Learned Senior Counsel, would fairly state that, while such protection would no doubt be available after judgment is delivered by the XXI ACMM in the CBI cases, the petitioners apprehension is that, in view of the voluminous evidence - both oral and documentary - adduced both by the prosecution and the defence, it would be fairly long before judgment, in the CBI cases, is delivered by the XXI ACMM; and if, in the meanwhile, the E.D, relying on the pitfalls, loopholes and omissions pointed out in the prosecution case during defence arguments, were to fill up such gaps in the complaint to be filed by them before the Special Court under PMLA, the petitioners would suffer grave prejudice thereby.
This submission of the Learned Senior Counsel is based on the premise that the High Court would decline to accede to the request of the E.D. that the XXI ACMM be upgraded as a Sessions Court, and be designated as a Special Court under PMLA; the E.D. would then file its complaint before the presently designated Special Court under PMLA filling up the gaps and loopholes pointed out during defence arguments; trial in the said designated Special Court under PMLA would be expedited; and judgment would be delivered by the Special Court, even before the XXI ACMM delivers judgment in the CBI cases. This premise is too far fetched, outrageous, and extremely remote, to even merit consideration. Even if hypothetically, such a far fetched eventuality were to arise in future, it would always be open to the petitioners to avail their legal remedies at that stage. They cannot as at present, when the High Court has not even communicated its decision on the ED's request for designating the XXI ACMM Court as the Special Court under the PMLA, seek a mandamus from this Court directing the XXI ACMM to defer defence arguments, in the CBI cases, indefinitely.
IX. SHOULD THIS COURT EXAMINE THE QUESTION WHETHER OR NOT THE XXI ACMM COURT CAN BE DESIGNATED AS THE SPECIAL COURT UNDER PMLA?
Sri T. Niranjan Reddy, Learned Standing counsel for the CBI, would submit that the CBI has filed a charge sheet for offences under Section 120-B, 409/406, 419, 420, 467, 468 and 477-A IPC; in the complaint to be filed by the ED the allegations would be confined to the offence of money laundering; as the petitioners have already disclosed their defence under the provisions of Cr.P.C, the complaint to be filed by the ED would not, in any way, prejudice their rights; and the charges, in the proceedings initiated by the CBI, are entirely different from the contents of the complaint to be filed by the ED under the provisions of the PMLA. In its written submissions, the E.D. would submit that, pursuant to the order of the Supreme Court dated 10.12.2012, the Central Government had addressed letters to the Registrar - General of the High Court of Andhra Pradesh to designate the XXI ACMM Court, as the 'Special Court' in terms of Section 43(1) of PMLA, and the matter stands at that stage; and once the XXI ACMM Court is designated as the Special Court, the complaint for an offence of money laundering (Section 3 of PMLA) would be immediately filed. On the other hand Sri D. Prakash Reddy, Learned Senior Counsel appearing on behalf of the petitioners, would submit that the complaint, to be filed by the E.D, is to be tried only by the Special Court along with all other offences i.e., offences under Section 4 of PMLA, the scheduled offences and any other offence; once a complaint is filed by the E.D, the CBI cases cannot be continued before the learned Magistrate; even according to the E.D, they have to be transferred to the Special Court; even if the XXI ACMM is upgraded, the Learned Magistrate cannot continue to decide the CBI cases, but will be required to try only the complaint of the E.D. in the capacity of a Special Court designated under PMLA; the ED has admitted, in their counter affidavit, that they were ready to file a complaint, and had approached the High Court for necessary orders so that the XXI ACMM can try the ED complaint; and, in such a case, the CBI cases on the file of XXI ACMM and the ED Complaint have to be tried together under PMLA.
The understanding of either the petitioners or the ED or the C.B.I. on the scope and purport of the provisions of PMLA is not conclusive, as the power to interpret the provisions of a statute is conferred on the judicial branch of the State. Since the E.D's request for constitution of a special court is still pending consideration of the High Court of A.P, the questions raised regarding the jurisdiction of the XXI ACMM (before whom the CBI cases are pending); whether those offences for which the petitioners are being tried in the CBI cases should be tried along with the offences under PMLA, only by the Special Court after a complaint is filed before it by the E.D; whether the XXI Addl. CMM court can be designated as the Special Court under PMLA etc; are merely academic issues since the applications filed by the ED have not, as at present, been disposed of by the High Court of A.P. It is not yet known whether or not the XXI ACMM would be designated as the Special Court under PMLA. It is only after a decision is taken, on the request of the ED by the High Court, can a complaint be filed by the E.D before the Special Court. It is only then that these issues may arise. These questions do not, therefore, necessitate examination in the present writ proceedings. Suffice to note that it is not the ED, but two of the accused in the CBI cases, who have invoked the jurisdiction of this Court seeking stay of trial, (which is at an advanced stage of conclusion i.e., at the stage of defence arguments), in the CBI cases. X. SHOULD THIS COURT EXERCISE ITS DISCRETION TO GRANT THE RELIEFS SOUGHT FOR IN THESE WRIT PETITIONS?
Let us now examine the submission of Sri T. Niranjan Reddy, Learned Standing Counsel for the CBI, that this Court should refrain from exercising its discretion under Article 226 of the Constitution of India, and refuse to grant the reliefs sought for in these writ petitions. Learned Counsel would submit that, in view of the binding nature of the directions of the Supreme Court and the undertaking given by the accused, the present Writ Petitions should not be entertained; while disposing of C.A. Nos. 2068 to 2072 of 2010 filed by the CBI, against the order of this Court granting bails to the accused in the CBI cases, (including the Petitioners), the Supreme Court had, by its order dated 26.10.2010, directed the trial court to take up trial of the CBI cases on a day to day basis, and to conclude the trial as expeditiously as possible on or before 31.07.2011; as the Supreme Court had directed the CBI to examine only material and most essential witnesses the CBI had examined only 226 witnesses giving up 440 witnesses during the course of trial; the directions issued by the Supreme Court are binding; subsequently when bail was granted, the accused in the CBI cases gave an undertaking before the Supreme Court that they would continue to co-operate with the trial; the counsel for the petitioners herein had also stated that the accused would strictly adhere to the time schedule fixed by the trial Court; on an application filed by the ED, seeking clarification of the order in Crl.A. Nos.2068 to 2072 of 2010 dated 26.10.2010 (order cancelling the bail of accused including the petitioners herein), the Supreme Court, by its order dated 10.12.2012, had clarified that the High Court could take up the application filed by the Enforcement Directorate for designating any one of the Courts as the designated Court to try offences under PMLA; except issuing the said clarification, no other directions were issued by the Supreme Court; there is no reference to the directions issued earlier on 26.10.2010 in the later order passed by the Supreme Court on 10.12.2012; the directions issued by the Supreme Court, in its order dated 26.10.2010, have not been disturbed or modified in the subsequent order passed on 10.12.2012; the petitioners have, therefore, no locus-standi to initiate the present proceedings; the E.D. has so far not presented the complaint to prosecute the accused under the provisions of PMLA and, as such, the present proceedings are pre-mature.
On the other hand Sri D. Prakash Reddy, Learned Senior Counsel, would submit that the contention of the CBI, that any order passed in these Writ Petitions in favour of the petitioners would run counter to the order of the Supreme Court dated 26.10.2010, is not tenable, as the said order was passed at a time when it was not clear whether the E.D. would file a complaint; the Crl.M.Ps, filed by the E.D. before the Supreme Court, have given rise to a new cause of action for filing of the present Writ Petitions; the vigour of the order dated 26-10-2010 was relaxed by the Supreme Court in its subsequent order dated 04.11.2011 whereby the petitioner was granted bail; the order passed subsequently by the Supreme Court on 10-12-2012, in Crl.M.P. No.11277-11281/2011, drastically altered the situation as it gave liberty to the E.D. to approach this Court, and seek appropriate directions for constitution of the Special Court under PMLA; and this also gave rise to a cause of action to the petitioners to file the present Writ Petitions.
Learned Senior Counsel would further submit that the petitioners' undertaking, as referred to in the order of the Supreme Court dated 04-11-2011 granting them bail, was merely not to examine any of the given up prosecution witnesses as defence witnesses in the trial pending before the XXI ACMM; the petitioners have fully co-operated with the trial; they had adhered to the time schedule fixed by the trial court; however, after the E.D. entered the picture, filed Crl. M.Ps, and obtained an order from the Supreme Court on 10-12-2012, the situation has drastically changed; in view of the imminent prejudice that would be caused to them, the petitioners were constrained to file the present Writ Petition; having regard to the aforesaid subsequent events, the present Writ Petition is maintainable; when the rights of the petitioners are put in jeopardy, the said undertaking would lose its efficacy in view of the intervention of another investigating agency namely the E.D. to prosecute the petitioners; no purpose would, therefore, be served if the CBI cases, on the file of XXI ACMM, is argued as it would give scope for the ED to know the defence of the accused, and the contradictions and omissions that may be pointed out in the prosecution's case during arguments; this would then enable the ED to fill up these gaps/lacunae in their complaint; advancing defence arguments would be prejudicial to the accused; and this Court should, therefore, stay further proceedings in the CBI cases until filing of a complaint by the E.D before the appropriate Special Court.
In its I.A dated 11.05.2011, filed before the Supreme Court, the ED sought its permission to approach the High Court of AP, requesting it to designate the learned XXI ACMM to the rank of Addl. Sessions Judge to exercise jurisdiction within the meaning of Section 9(3) Cr.P.C. and thereafter notify, in consultation with the Chief Justice of the High Court of AP, the XXI ACMM Court (as a court of Sessions) to be a Special Court within the meaning of Section 43(1) of PMLA, for conducting trial on the complaint to be filed within 15 days of passing of orders by the Supreme Court or till such other time as may be directed by it. The ED also sought an order from the Supreme Court that, upon the disposal/conclusion of the charges arising by the CBI charge sheet, it would be open to the XXI ACMM in the capacity of a Special Court, notified under Section 43(1) of the PMLA, to take cognizance, proceed to hear and complete the trial of the complaint to be filed by the E.D. One of the accused in the CBI cases filed a counter-affidavit thereto on 12.10.2011 seeking dismissal of the I.A. It is evident, therefore, that when the petitioners were granted bail by the Supreme Court on 04.11.2011, they were aware of the application filed by the E.D, and the counter-affidavit filed by one of the accused thereto, despite which they filed affidavits of undertaking before the Supreme Court that they would not examine the witnesses given up by the prosecution in the CBI cases; and the learned counsel appearing on their behalf submitted before the Supreme Court that the parties (which included the petitioners herein) had been co- operating with the trial Court, and they would continue to do so. These Counsel further undertook that the accused would strictly adhere to the time schedule fixed by the trial Court. The Supreme Court, in its order dated 04.11.2011, once again requested the trial Court to ensure that the trial of the CBI cases is completed as expeditiously as possible. If, as is now being contended before this Court, advancing defence arguments would result in the E.D. filling up the gaps relating to the omissions, pitfalls and contradictions, pointed out by the defence Counsel, in the prosecution's evidence, nothing prevented the petitioners or their counsel from refusing to give an undertaking to the Supreme Court to continue to co-operate with, and to strictly adhere to the time schedule fixed by, the trial Court.
XI. JUDGMENT INTER-PARTIES ARE BINDING AND CANNOT BE RE-OPENED IN SUBSEQUENT PROCEEDINGS:
The directions of the Supreme Court, in its order dated 26.10.2010, required the trial Court to take up the case on day to day basis, and conclude the trial of the cases as expeditiously as possible in any event on or before 30.07.2011; and to avoid granting any undue adjournments, unless it became absolutely imperative. The parties (including the petitioners herein) were also directed to examine only the material and the most essential witnesses, and fully cooperate with the trial Court. The aforesaid directions of the Supreme Court dated 26.10.2010 are binding on the petitioners herein as they are also parties to the said order which has attained finality, as the petitioners did not seek any review thereof. When a particular decision has become final and binding between the parties, they will always be bound by the said decision. Either of the parties will not be permitted to reopen the issue decided by such a decision. (Supreme Court Employees Welfare Association Vs. Union of India41). Such orders bind the parties in a subsequent litigation or before the same Court in the subsequent stage of the proceedings. (Barkat Ali v. Badrinarain42).
Sri D. Prakash Reddy, Learned Senior Counsel, would contend that the subsequent orders of the Supreme Court dated 04.11.2011 and 10.12.2012 had diluted the earlier order of the Supreme Court dated 26.10.2010. Even the order of the Supreme Court dated 04.11.2011, whereby the petitioners were granted bail, records that affidavits of undertaking were filed by the petitioners, and the submission of the Learned Counsel appearing on their behalf, was pursuant to its directions. The Supreme Court, in its order dated 04.11.2011, again requested the trial Court to ensure that the trial of the CBI cases is completed as expeditiously as possible.
The clarificatory order of the Supreme Court dated 10.12.2012 does not, in any manner, dilute or negate the earlier directions of the Supreme Court in its orders dated 26.10.2010 and 04.11.2011. As noted hereinabove the E.D, in its I.A. filed before the Supreme Court, had merely requested that the XXI ACMM be designated as a Special Court under Section 43(1) of PMLA; and the trial, at the instance of the CBI, should continue uninterrupted in conformity with the earlier order of the Supreme Court dated 26.10.2010, and completed on or before 31.07.2011 as directed by the Supreme Court. It is only because the trial could not be completed by 31.07.2011, that the petitioners were entitled to seek bail, and had therefore filed applications in this regard. While granting bail, by its order dated 04.11.2011, the Supreme Court again requested the trial Court to ensure that the trial of the cases was completed expeditiously. The order of the Supreme Court dated 10.12.2012 does not nullify the earlier directions of the Supreme Court in its order dated 26.10.2010. All that the Supreme Court did was to clarify that its earlier order dated 26.10.2010 would not come in the way of the High Court examining the petition of the E.D. for designating a competent court for passing appropriate orders under PMLA keeping in mind the provisions of the relevant law. While the E.D. had requested that the XXI ACMM be designated as the Special Court, and one of the accused had filed a counter- affidavit opposing such a request, the Supreme Court chose not to express any opinion as to which Court was to hear the proceedings under PMLA, and left it open to the High Court to consider the issue in accordance with law. It is not as if the Supreme Court, while passing a clarificatory order on 10.12.2012, had recalled its earlier directions to the trial Court, in its order dated 26.10.2010, to take up the CBI cases on a day to day basis, and to conclude the case as expeditiously as possible; or its directions to the parties to fully co- operate with the trial Court.
XII. JUDICIAL DISCIPLINE REQUIRES THE HIGH COURT TO FOLLOW, AND NOT TO ACT CONTRARY TO, THE DIRECTIONS OF THE SUPREME COURT:
Granting the relief sought for, in these writ petitions, would fall foul of the order of the Supreme Court dated 26.10.2010. The order of the Supreme Court dated 26.10.2010 is a decision which the High Court is bound to follow. Black's Law Dictionary defines a "decision" as "a determination arrived at after consideration of facts and, in legal context, law"; and an "opinion" as the statement by a Judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based. A 'Decision' is not necessarily synonymous with 'opinion'. A decision of the court is its judgment; the opinion is the reasons given for that judgment, or the expression of the views of the Judge. In the case of a decision, the appellate structure is exhausted after a pronouncement by the Supreme Court. The only option left to the parties is of review or curative jurisdiction. (Natural Resources Allocation, In re, Special Reference No. 1 of 2012 43).
Judicial discipline requires, and decorum known to law warrants, that appellate directions should be followed. In the hierarchical system of courts which exists in this country, it is necessary for each lower tier to accept loyally the decisions of the higher tiers. The judicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted. (Kausalya Devi Bogra v. Land Acquisition Officer44; Cassell & Co. Ltd. v. Broome45). The singular Constitutional role of the Supreme Court under the Constitution, and correspondingly of the assisting role of all authorities - civil or judicial in the territory of India - towards it, mandate the High Court, which is one such judicial authority covered under Article 144 of the Constitution, to act in aid of the Supreme Court. The order of the Supreme Court is a judicial order, and is otherwise enforceable throughout the territory of India under Article 142 of the Constitution. The High Court is bound to come in aid of the Supreme Court in having its order worked out. While the High Court is independent, and is a co-equal institution, the Constitutional scheme and judicial discipline requires that the High Court should give due regard to the orders of the Supreme Court which are binding on all courts within the territory of India. (Spencer & Co. Ltd. v. Vishwadarshan Distributors (P) Ltd.,46; Bayer India Ltd. v. State of Maharashtra47; E.S.P. Rajaram v. Union of India48). While directions were issued to the trial Court in the order of the Supreme Court dated 26.10.2010, the Supreme Court, by its order dated 04.11.2011, requested the trial court to ensure that the trial of the CBI cases was completed as expeditiously as possible. The language of request, often employed by the Supreme Court, is to be read by the High Court as an obligation, in carrying out the Constitutional mandate, maintaining the writ of the Supreme Court running large throughout the country. (Bayer India Ltd.47; E.S.P. Rajaram48; Spencer & Co. Ltd.46).
Granting the petitioners the relief sought for, in these Writ Petitions, would negate the orders of the Supreme Court dated 26.10.2010 and 04.11.2011. In the light of the directions of the Supreme Court in its orders dated 26.10.2010 and 04.11.2011, and as these directions have not been recalled by the Supreme Court in its subsequent order dated 10.12.2012, it would be wholly inappropriate for this Court to exercise its discretionary jurisdiction under Article 226 of the Constitution of India to grant the reliefs sought for by the petitioners.
XIII. THESE WRIT PETITIONS, FILED ONLY TO DELAY PROCEEDINGS BEFORE THE XXI ACMM, ARE AN ABUSE OF PROCESS OF COURT:
It must be noted that the application filed by the E.D. on 11.05.2011, requesting that the XXI ACMM be designated as a Special Court under the PMLA, as well as the counter-affidavit filed thereto by one of the accused on 12.10.2011 opposing such a request, were filed before the Supreme Court when the petitioners were still in judicial custody. Despite being aware that the E.D. was about to file a complaint under the PMLA, the petitioners and their counsel undertook before the Supreme Court, (as is noted in the order of the Supreme Court dated 04.11.2011), to continue to co-operative with the trial Court, and to strictly adhere to the time schedule fixed by it. Having obtained bail from the Supreme Court on an undertaking having been given on their behalf by their Counsel, despite the petitioners being aware that a compliant was about to be filed by the E.D. under the PMLA, the present Writ Petitions seeking deferment of the CBI cases (which is at an advanced stage of defence arguments) is not only an undisguised attempt to delay completion of the trial, but also an abuse of process of this Court. The jurisdiction of the High Court, under Article 226 of the Constitution, is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. (K.D. Sharma v. Steel Authority of India Limited49).
XIV. CONCLUSION:
I see no reason, in these circumstances, to grant the relief sought for in both the Writ Petitions. Needless to state that the XXI ACMM shall, in compliance with the directions of the Supreme Court in its orders dated 26.10.2010 and 04.11.2011, ensure that the trial of the CBI cases is completed at the earliest. Both the Writ Petitions fail and are, accordingly, dismissed with exemplary costs of Rs.25,000/- (Rupees twenty five thousand only) each which shall be paid by both the petitioners, in these two Writ Petitions, to the A.P. State Legal Services Authority, Hyderabad within four weeks from today. _____________________________ RAMESH RANGANATHAN,J Date: 12.02.2013