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20. Mr. Umesh Sinha, learned counsel for the Appellant, first referred to the fact the case registered by the CBI on the basis of the complaint dated 9th March 2002 of PW-17 was in fact a continuation of a complaint dated 4th March 2002 which had resulted in the registration of another case, namely, RC NO ACI-2002-A-0002/ACUI New Delhi in which nothing incriminating had been found against the Appellant. Since the very basis of the present case was the case registered under Section 13 (1) (d) of the PC Act, the entire prosecution of the Appellant in the present Disproportionate Assets (DA) case stood vitiated.

21. In reply it was pointed out by Mr. Manoj Ohri, learned Special Public Prosecutor (SPP) for the CBI, that while in the case under Section 13 (1) (d) of the PC Act nothing incriminating had been found against the Appellant, the DA case stood entirely on a different footing. Mr. Ohri pointed out that one of the accused in the case under Section 13 (1) (d) of the PC Act, Dr. B.K. Sahoo had protested his being prosecuted separately for the offence under Section 13 (1) (e) of the PC Act by filing Criminal Revision Petition No. 771 of 2011. The said petition was dismissed by the High Court of Madhya Pradesh at Jabalpur in B.K. Sahoo (Dr.) v. Central Bureau of Investigation ILR (2012) MP 1077 holding that though the offences remain criminal misconduct by the public servant, yet the constituent ingredients of both the offences are entirely different and therefore, he can be prosecuted against for both offences.

23. The above letter was followed by a letter dated 9th March 2002 by Mr. Jagir Singh Sran, PW-17 to the CBI/ACB, New Delhi on the basis of the disclosures made by the Appellant during the enquiry ordered by the Director, BSF Academy, Tekanpur. The charge sheet for the same was filed on 30th June 2003.

24. Sometime in 2006, BSF Academy, Tekanpur, Gwalior had enquired from the CBI, the status of the case and in response thereto, the Superintendent of Police, CBI had sent a communication on 7 th January 2006 stating that in the case under Section 13 (1) (d) of the PC Act involving 14 candidates, 11 charge sheets had been filed; Dr. B.K Sahoo along with co-accused had been prosecuted; Mr. Amar Nath Gupta, the then ASI, BSF Academy had also been prosecuted under Section 13 (1) (d) of the PC Act and that "due to want of evidence Dr. S.K. Jha has not been prosecuted" by the CBI. Importantly, this reply was sent by ACU-I of the CBI and not the wing of the CBI which had registered a DA case against the Appellant.

25. On the basis of the above letter dated 7th January 2006, Adjutant, BSF Academy, Tekanpur, Gwalior wrote to the Force Headquarters (Pers Dte) requesting to intimate the next course of action and to consider revocation of suspension of the Appellant. However, what was perhaps overlooked was the fact that the DA case against the Appellant was a separate proceeding in accordance with law. The legal position in this regard is fairly well settled and has been reiterated by the High Court of Madhya Pradesh in B.K. Sahoo (supra). Although the Appellant was not prosecuted for the offence under Section 13 (1) (d) of the PC Act, he could validly be prosecuted for the offence under Section 13 (2) read with Section 13 (1) (e) of the PC Act, which was a separate offence. Consequently, this Court is unable to find any illegality committed by the CBI in instituting separate proceedings against the Appellant in the DA case.