Madhya Pradesh High Court
Lt. Col. R. S. Yadav vs The State Of Madhya Pradesh on 10 February, 2011
HIGH COURT OF MADHYA PRADESH : JABALPUR
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Present : Hon. Shri Justice R.C. Mishra
Hon. Smt. Justice Vimla Jain
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M.Cr.C. No.1155/2011.
Lt. Col. R.S.Yadav, son of Balbir Singh Yadav,
aged about 51 years, ADST, 55(1),
Merchanized Brigade, C/o 56 APO ...Petitioner
vs.
State of Madhya Pradesh, through CBI
Branch C.B.I. ACB, Jabalpur ... Respondent
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Shri G.S. Ahluwalia, Advocate for the petitioner.
Shri Vikram Singh, Standing Counsel for the respondent-CBI.
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ORDER
(10/2/11) This is a successive petition, under Section 482 of the Code of Criminal Procedure, for quashing the criminal proceedings pending as Special Case No.3/2006 before the Special Judge (under the Prevention of Corruption Act, 1988 for CBI Cases) at Jabalpur on the ground of lack of jurisdiction as well as that of double jeopardy.
2. The previous one was dismissed vide order dated 14/12/2010 passed in MCrC No.9352/10, as withdrawn with liberty to raise the pleas before the trial Court. Accordingly, by way of application dated 15.12.2010, the petitioner questioned maintainability of his prosecution, contending that -
(i) It is barred by the principle of double jeopardy.
(ii) The Special Court had proceeded with the trial without being moved by the competent authority and without following the prescribed procedure as contemplated in Section 126 of the Army Act, 1950.
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However, learned trial Judge, for the reasons recorded in the order-dated 17.01.2011, proceeded to reject the objections.
3. In that case, the petitioner is being tried for the offence of having been in possession of pecuniary resources and property disproportionate to his known sources of income to the extent of Rs.23,77,628/-, punishable under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). The trial has already reached the stage of defence. Cognizance of the offence was taken upon charge sheet filed by CBI, after due investigation into the case registered on 27.11.2003 as FIR No.RC0092003A0009 at its office in Jabalpur.
4. As indicated already, the first contention raised by learned counsel in support of the petition is that the petitioner's trial by the Special Court is violative of fundamental right guaranteed by Article 20(2) of the Constitution of India, forbidding prosecution and punishment of a person for the same offence more than once. For this, he has invited attention to the following background facts -
(i) In the year 2003, the petitioner was posted as Lieutenant Colonel and Officer Commanding of 54 Company Supply Depot, Army Service Corps, Jabalpur. Upon a complaint made by one Prabhu Dayal Kodwani to the effect that he was demanding a sum of Rs.10,000/- as illegal gratification, a trap was laid by the CBI but it was unsuccessful and failed. However, in the light of the findings of the investigation conducted by CBI, Officiating Commandant (JAK Rifles), Regimental Centre, nearly two years prior to filing of the charge sheet before the Special Court, issued a charge sheet to the petitioner. It contained the following charges -
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"FIRST CHARGE Army Act COMMITTING A CIVIL OFFENCE THAT IS TO SAY Section 69 DEMANDING ILLEGAL GRATIFICATION CONTRARY TO SECTIONS 7 AND 13(2) READ WITH 13(1)(d) OF THE PREVENTION OF CORRUPTION ACT, 1988 in that he, at Jabalpur, on 12 June 2003, at about 2100 hours, demanded Rs.10,000/- (Rupees ten thousand only) as illegal gratification from Shri Prabhu Dayal Kodwani son of Shri Meghrajmal Kodwai, Managing Partner, M/s Chaman Ice Factory, ITI, Damoh Road, Jabalpur.
SECOND CHARGE Army Act EXACTING WITHOUT PROPER AUTHORITY Section 53(b) MONEY FROM A PERSON in that he, at Jabalpur, on 12 June 2003, at about 2100 hours, exacted without proper authority Rs.10,000/- (Rupees ten thousand only) from Shri Prabhu Dayal Kodwani son of Shri Meghrajmal Kodwai, Managing Partner, M/s Chaman Ice Factory, ITI, Damoh Road, Jabalpur.
THIRD CHARGE Army Act COMMITTING A CIVIL OFFENCE THAT IS TO SAY Section 69 CAUSING DISAPPEARANCE OF EVIDENCE OF OFFENCE, CONTRARY TO SECTION 201 OF THE INDIAN PENAL CODE in that he, at Jabalpur, on 12 June 2003, at about 2100 hours, caused to disappear the currency notes amounting to Rs.10,000/- (Rupees ten thousand only) offered to him by Shri Prabhu Dayal Kodwani son of Shri Meghrajmal Kodwai, Managing Partner, M/s Chaman Ice Factory, ITI, Damoh Road, Jabalpur, as illegal gratification.
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FOURTH CHARGE Army Act COMMITTING A CIVIL OFFENCE THAT IS TO SAY Section 69 CRIMINAL MISCONDUCT BY A PUBLIC SERVANT CONTRARY TO SECTION 13(1)(e) READ WITH 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988 in that he, at Jabalpur, on 12 June 2003, was in possession of property disproportionate to his known sources of income."
(ii) The Commanding Officer, while following the procedure prescribed in Rule 22 of the Army Rules, 1954 that deals with hearing of charge, decided to adjourn the case as per sub-rule (3)(c) thereof for the purpose of having the evidence reduced in writing and summoned the investigating officer of the CBI as witness in the proceedings.
(iii) Ultimately, after issuing a show cause notice (Annexure P-5) in respect of first three charges, the General Officer Commanding, vide order-dated 19.05.2006 (Annexure P-4), imposed the punishment of censure.
5. According to learned counsel, non-mentioning of the fourth charge in the show cause notice clearly suggested that the petitioner was not found guilty thereof and, therefore, his subsequent prosecution for the same charge is illegal as it hits the principle underlying Article 20(2) of the Constitution.
6. As explained by the Supreme Court in S. A. Venkataraman v. Union of India AIR 1954 SC 375 -
"The ambit and contents of the guarantee of the fundamental right given in Art. 20(2) are much narrower than those of the Common Law rule in England or the doctrine of "Double Jeopardy" in the :: 5 ::
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American Constitution, Article 20(2) of the Constitution of India does not contain the principle of "autrefpios acquit". In order to enable a citizen to invoke the protection of cl. (2) of Art. 20 of the Constitution there must have been both prosecution and punishment in respect of the same offence. 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."
7. However, fact of the matter is that there is nothing on record to indicate that the petitioner was tried and convicted by a Court Marital for the offence of being in possession of pecuniary resources or property disproportionate to known sources of income. On the contrary, a bare perusal of the order-dated 10.04.2010 passed by the General Officer Commanding and exhibited before the trial Court as P-59, would reveal that he had taken a decision not to initiate any action against the petitioner in respect of the fourth charge in view of the fact that the same was under investigation by the CBI. Moreover, on 26.07.2006, the officer gave a categorical direction that the prosecution of the petitioner for the offences punishable under Sections 13(1)(e) and 13(2) of the Act shall be carried out by the CBI.
8. Against this contextual backdrop, the first contention of the petitioner fails and is rejected.
9. Coming to the second contention, which has been set out earlier, we may observe that the following facts are not in dispute :-
(a) On 15/5/2006, sanction under Section 19(1)(a) of the Act for prosecution of the petitioner was granted in the name of the President by the Government of India, Ministry of Defence.
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(b) On 31/5/06, charge-sheet in respect of the offence under Section 13(1)(e) read with 13(2) of the Act was submitted before the Special Court.
(c) The offence can be tried both by an ordinary criminal Court as well as by a Court Martial.
(d) The trial Judge without complying with the procedure laid down in Rules 3 and 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1978 (for brevity "the Rules"), proceeded to try the accused in accordance with the procedure prescribed under the Code.
(e) On 26/7/2006, the General Officer Commanding, who was otherwise the competent authority to exercise the discretion as contemplated under Section 125 of the Army Act made the recommendation to the Army Headquarter that prosecution of the petitioner for the aforesaid offence shall be carried out by the CBI.
10. Learned counsel for the petitioner, however, pointed out that the direction dated 26/7/2006 did not reflect as to whether the General Officer Commanding was aware of grant of sanction or filing of charge sheet. Attention has also been invited to the fact that the recommendation for prosecution of the petitioner before the Civil Court was based upon the report dated 30/11/2005 forwarded by S.P. (CBI) Bhopal in respect of the case registered as R.C.No.0092003A009 against the petitioner and not upon a notice given by the trial Judge under Rule 4 of the Rules. According to him, in any case, failure on the part of the Special Judge to comply with the mandatory procedure as contemplated under Rules 3 to 7 had :: 7 ::
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resulted in an initial lack of jurisdiction to try the case. In his opinion, the mere fact that the plea of jurisdiction has been raised at a belated stage of trial would not be sufficient to overrule it as the same relates to the subject-matter and not to territory. To buttress the contention that the proceedings before the trial Court deserve to be quashed as being nullity in law, implicit reliance has been placed on decision of a Division Bench of the Bombay High Court in Kanwardeepsingh Harbansingh Bedi v. State of Maharashtra 2010 Cri.L.J. 315.
11. While opposing the prayer, learned counsel for the CBI has urged that once sanction for prosecution has been granted by the President of India, there was no legal hurdle in proceeding with the trial. He is further of the view that since the investigation was entrusted to the CBI by the Army authorities only, it was not incumbent upon the Special Judge to issue a written notice to the Commanding Officer as contemplated under Rule 4 of the Rules and to await concurrence before proceeding against the petitioner.
12. In response, learned counsel for the petitioner has submitted that similar arguments advanced on behalf of the State in the case of Captain P.K. Rekwal v. State of M.P. (2001 (1) MPHT 72) were rejected by a single Bench of this Court in the light of the well settled position of law on the subject as explained by three Judge Bench of the Supreme Court in Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya (1972) 2 SCC 692). Further, while making reference to pronouncement of Apex Court in Supdt. and Legal Rememberencer v. Usha Ranjan 1986 (Supp) SCC 190, he has re-canvassed the point that the entire trial is vitiated due to non compliance with the :: 8 ::
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mandatory provisions of Rules 3 and 4 of the Rules which are applicable to the Special Court also.
13. We do not propose to burden this order with reproduction of the relevant provisions contained in Section 475 of the Code, Sections 125 and 126 of the Army Act, 1950, and Rules 3 to 7 of the Rules, framed in exercise of powers under Section 475. However, we have to bear in mind the special care, which these provisions and the case law grown around them take in the matter of trial of an army personnel for a civil offence. The principles that can be deduced from the plethora of precedents, including the decisions cited at the Bar, may be summed up as under -
"Section 475(1) of the Code that corresponds to Section 549(1) of the Old code, is mandatory in nature and is designed to avoid conflict of jurisdiction in re- spect of the offences. In this case it was further ex- plained that the phrase "for which he is liable to be tried either by the court to which this Code applies or by a court-martial" imports that the offence for which the accused is to be tried should be an offence of which cognizance can be taken by an ordinary criminal court as well as a court-martial. The phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide it on merits (Delhi Special Police Establish- ment, New Delhi v. Lt. Col. S.K.Loraiya (1972)2 SCC 692). There could be a variety of circumstances which may influence the decision as to whether the of- fender be tried by a Court-Martial or by an ordinary Criminal Court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military of- ficers under whom the accused be serving. Those offi- cers are to be guided by considerations of the exigen- cies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed (Ram Sarup v. Union of India, AIR 1965 SC 247). The :: 9 ::
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action of the Army authorities in calling for a detailed police report at the investigation stage would not amount to the authorities under the Act exercising the option not to try the accused by the court martial and the Army authorities could not be said to have voluntar- ily abandoned their option to try the accused in court martial. On a combined reading of Rules 3 and 4, it is evident that in case the Magistrate is of the opinion that he should proceed with the case without there be- ing any such request from the appropriate military au- thority, he is enjoined to give notice to the commanding officer in this behalf. Till the expiry of fifteen days from the date of service of such notice on the commanding officer, the Magistrate is prohibited from taking any or- der of conviction or acquittal or framing any charges or committing the accused. The Rules apply to the Court of Special Judge under the Act as for the purposes thereof, he is deemed to be a Magistrate (Superinten- dent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury AIR 1986 SC 1655). However, Rule 4 is related to cl. (a) of R. 3 and will be attracted only when the Magistrate proceeds to conduct the trial without having been moved by the competent military authority. When the competent mili- tary authorities, knowing fully well the charge against the accused and the investigation that was being con- ducted by the Police release him from military custody and hand him over to the civil authorities, the Magis- trate is justified in proceeding on the basis that the mili- tary authorities had decided that the accused need not be tried by the court-martial and that he can be tried by the ordinary criminal Court (Joginder Singh v. State of H.P. AIR 1971 SC 500). Still, the question regard- ing exercise of jurisdiction by the court-martial would arise only after the investigation was completed and the police report was available (Usha Ranjan Roy Choudhury's case (supra)"
14. Applying these principles to the facts of the case, it can easily be concluded that the competent military authority not only permitted investigation into the case by CBI but also declared that the Court Martial proceedings would not be instituted. In such a :: 10 ::
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situation, the decision in Kanwardeepsingh's case (supra), being apparently distinguishable on facts, is of no avail to the petitioner.
15. As highlighted already, the opinion that the petitioner should be tried by the ordinary criminal Court only, was formed by General Officer Commanding on 26/7/2006, whereas, the sanction for prosecution of the petitioner was granted by the competent authority on 15/5/2006 and the charge-sheet was submitted before the Special Court on 31/5/2006. It is, therefore, evident that the competent military authority exercised the discretion only after completion of the investigation. Under these circumstances, there was no occasion to follow the procedure under Section 126 or Rule 4 as the military authorities had made abundantly clear that the appellant need not be tried by the court-martial. That being so, it would have been altogether superfluous for the Special Judge to give the notice as required by the said provisions (See Joginder Singh's case (supra). Hence, there was no conflict of jurisdiction of the Criminal Court in the court martial to try the case. The conduct of military authorities in handing over the investigation to CBI and also permitting it to prosecute the petitioner before an ordinary criminal Court, was a clear indication of the exercise of the option by them that they had opted for the trial of the appellant by the ordinary criminal court (See Balbir Singh v. State of Punjab 1994 AIR SCW 4981).
16. In William Slaney v. State of M.P AIR 1956 SC 116, a Constitution Bench, though in a different context, had the occasion to examine the effect of disregard of the provisions of Code. The guiding principle was laid down in the following words:-
"Before we proceed to set out our answer and examine the provisions of the Code, we will pause to :: 11 ::
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observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then provided there is 'substantial' compliance with the outward forms; of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based."
17. Accordingly, the second contention also warrants rejection as being without merit and substance.
18. For these reasons, we are of the considered opinion that it is not a fit case for interference under the inherent powers.
19. The petition, therefore, stands dismissed.
Petition dismissed.
(R.C. MISHRA) (SMT.VIMLA JAIN)
JUDGE JUDGE
10.02.2011 10.02.2011