Madhya Pradesh High Court
Dr. B. K. Sahoo vs Central Bureau Of Investigation on 6 March, 2012
Author: M.A.Siddiqui
Bench: M.A.Siddiqui
(1) Cr.Rev..No. 771/2011
AFR
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE M.A.SIDDIQUI
CRIMINAL REVISION NO. 771/2011
APPLICANT: Dr. B.K.Sahoo S/o Late Shri B.B.Sahoo aged
about 55 years R/o 32 Type-4 Officers
Enclave B.S.F. Academy Takenpur District
Gwalior (M.P.)
Versus
RESPONDENT: Central Bureau of Investigation through its
Director A.C. Unit C.G.O. Complex Lodhi
Road, New Delhi.
---------------------------------------------------------------------------------------------------
For the Applicant : Shri P.R.Bhave, Senior Advocate with Shri Bhanu Pratap Yadav, Advocate.
For the Respondent/C.B.I. : Shri Vikram Singh, Standing Counsel. Date of hearing : 02/03/2012 Date of order : 06/03/2012 (O R D E R ) Per: Rakesh Saksena; J, Applicant has filed this revision against the order dated 1.4.2011 passed by Special Judge C.B.I., Bhopal in Special Case No. 1/2011, whereby the application filed by him under Section 300 (1) read with Section 245 of the Code of Criminal Procedure dated 14.3.2011 has been dismissed.
2. Briefly stated the facts of the case are that applicant was posted as Chief Medical Officer in Composite Hospital, BSF Academy, Takenpur, Gwalior (M.P.). On the basis of a complaint dated 9.3.2002 submitted by Mr. Jagir Singh Shran, Commandant, BSF Academy Takenpur, Camp at New Delhi about the recovery of (2) Cr.Rev..No. 771/2011 a huge cash by the Board of Officers of BSF, amounting to Rs. 49, 35, 500/- from Quarter no. 383, Sector-VII, Pushp Vihar, New Delhi, kept in two suit cases which were concealed by the applicant, a case was registered by C.B.I./A.C.B/ New Delhi. It is alleged that accused Dr. Sahoo disclosed that he had concealed the ill-gotten money in two suit cases in the residential premises of Sh. Ramesh Sharma, Assistant Commandant, BSF and on the basis of above disclosure at the instance of Dr. Sahoo, it was recovered. On opening of the suit cases by Dr. Sahoo in presence of Board Members and Officers of BSF, an amount of Rs. 49, 35, 500/- was recovered. It was seized and sealed by BSF Officials. On an enquiry by the BSF Authorities Takenpur, it was revealed that Dr. B.K.Sahoo had been taking illegal gratification from various candidates desirous of recruitment in BSF as Constables and that he had concealed the said money in the aforesaid suit cases at the residence of Sh. Ramesh Sharma, Assistant Commandant. In these circumstances, SP/CBI/ACB registered the case and arrested the applicant Dr. Sahoo. During investigation, various documents relating to the assets acquired by Dr. Sahoo, his wife and family members were seized. Since, the assets found in the possession of Dr. Sahoo were disproportionate to the known sources of his income, the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity `the Act') was registered. After obtaining the sanction, charge sheet has been filed.
3. Since, Dr. Sahoo, under a conspiracy with other accused persons was found to have dishonestly issued forged medical fitness certificates for grant of fake admit cards for the selection of desirous candidates in BSF after obtaining the illegal gratification and other pecuniary advantage, cases under Sections 420, (3) Cr.Rev..No. 771/2011 468, 471 read with Section 120-B of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the Act were also registered.
4. Learned counsel for the applicant contended that in view of the provision of Section 300 (1) of the Code of Criminal Procedure read with Article 20(2) of the Constitution of India applicant could not have been prosecuted in respect of the recovery of Rs. 49,35,500/- twice. Since the charge sheets for the offences under Indian Penal Code and the offence under Section 13(1)(d) read with Section 13(2) of the Act have already been filed, the prosecution of applicant under Section 13(1)(e) read with Section 13(2) of the Act was not possible and the applicant ought to have been discharged.
5. We have heard the learned senior counsel and perused the record.
6. Provision of Section 300(1) of the Code of Criminal Procedure reads as under:
"300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof."
7. A bare perusal of the above provision reveals that once a person has been tried and convicted by the Court of Competent jurisdiction, he shall not be liable to be tried again. This provision is clearly not applicable in the circumstances of the case, since the trial of any of the case has not been completed. (4) Cr.Rev..No. 771/2011
8. Article 20(2) of the Constitution of India provides as under:
20. Protection in respect of conviction for offences.-
(1) ................
(2) No person shall be prosecuted and punished for the same
offence more than once.
(3) ..............
9. On perusal of the provisions of the Act and the accusations made against the applicant in the aforesaid two cases, it is apparent that by their nature the offences under Section 13(1)(d) and 13(1)(e) of the Act are different having altogether different ingredients. The offence under Section 13(1)(d) postulates that a public servant commits a misconduct if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
Whereas, when a public servant or any other person on his behalf is found in or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income, which he cannot satisfactorily account for, he is said to have committed the offence of criminal misconduct under Section 13(1)(e) of the Act.
10. Though, the offences remain criminal misconduct by the public servant, yet the constituent ingredients of both the offences are entirely different. Since, the (5) Cr.Rev..No. 771/2011 acts alleged against the applicant constitute offences falling in two separate categories, he can be prosecuted for both of them. The prosecution of applicant for the charge under Section 13(1)(e) of the Act, therefore, in our opinion, cannot be said to be the prosecution for the same offence.
11. For the aforesaid reasons, we find no error in the impugned order passed by the Court below.
12. Revision is, accordingly, dismissed.
(RAKESH SAKSENA) (M.A.SIDDIQUI)
JUDGE JUDGE
AD/