Ashwani Kumar Jain and Another vs C.B.I.

Poonam Srivastav, J.—Heard learned Counsel for revisionists and learned A.G.A. for the State.

The order impugned is dated 24.9.2009 whereby Special Judge Prevention of Corruption Act, Ghaziabad has rejected application of accused/revisionists.

Prayer of revisionists is to quash order dated 24.9.2009, passed by Special Judge Prevention of Corruption Act, Ghaziabad in Case No. 60 of 2005 and also to club Complaint Case No. 1597 of 2000 under Sections 132, 135 and 136 of Customs Act with police case pending before C.B.I. Court at Ghaziabad.

Submission is that initially revisionists were detained under C.O.F.E.P.O.S.A. Detention order was challenged in Habeas Corpus Writ Petition No. 12746 of 2002, Ashwani Kumar Jain v. Union of India and Ors. which was quashed by a Division Bench of this Court vide judgment and order dated 14.5.2002. Copy of which is annexed as Annexure-5 to the writ petition. Subsequently, custom department preferred a Complaint Case No. 1597 of 2000, which is still pending before the Court of Special Chief Judicial Magistrate at Meerut.

Learned Counsel for revisionists has emphatically argued that C.B.I., on the same set of facts lodged first information report against revisionists under Sections 120B and 420, I.P.C. and Section 13(2) read with Section 13(1)(d), Prevention of Corruption Act, 1988.

An application u/s 482, Code of Criminal Procedure was preferred by revisionists raising grievance that C.B.I. case may be clubbed alongwith case initiated by custom department. Application u/s 482, Code of Criminal Procedure was disposed of by this Court vide order dated 27.8.2007 directing applicant to invoke Section 210, Code of Criminal Procedure Copy of which is annexed as Annexure-1 to the affidavit filed in support of the instant revision.

Submission is that for the same set of facts, revisionists cannot be subjected to double penalty and it is in violation of Article 20(2) of the Constitution of India, Section 26 of General Laws as well as Section 300, Code of Criminal Procedure.

Learned Counsel for revisionists has laid great stress on the doctrine of double jeopardy and also the order dated 27.8.2007, passed by this Court in Criminal Misc. Application No. 17987 of 2007 u/s 482, Code of Criminal Procedure.

On perusal of the aforesaid order, it transpires that argument made before the Court concerned was that applicant is facing prosecution in two forums. Previously, this Court disposed of the said application when it was filed as afresh itself to invoke Section 210, Code of Criminal Procedure. It is evident that details of two proceedings were not explained at the relevant time. Proceeding under Sections 132, 135 and 136 of Customs Act was an adjudication proceeding in accordance with the Customs Act. Customs, Excise & Service Tax Appellate Tribunal passed an order on 18.6.2004 for recovery of short payment of customs duty under discrepancy proceedings. Final order was passed, which is now challenged before the Apex Court. SLP was preferred by Custom Department as well as revisionists. Present proceeding initiated by C.B.I. is for offences under Indian Penal Code and Anti Corruption Act. Contention raised by the counsel appearing for revisionists is apparently misconceived.

An application was given u/s 210, Code of Criminal Procedure subsequent to the order passed in Criminal Misc. Application No. 17987 of 2007 which was dismissed and the order is impugned. It is only if the same offences are being tried in two different proceeding, i.e., as police case and as a complaint case simultaneously. This is not a situation in the instant case.

The impugned order was passed rejecting two prayers; first one being u/s 210, Code of Criminal Procedure, I do not find any illegality for the reason that no case is pending in any Court and revisionists are not being prejudiced. Doctrine of double jeopardy is far-fetched argument, offences under Sections 120B and 420, I.P.C. and Section 13(2) read with Section 13(1)(d), Prevention of Corruption Act, 1988 are distinct offences and different from adjudication proceedings as per Customs Act for short payment of customs duty.

So far offences under Indian Penal Code and Prevention of Corruption Act are concerned, charge was already framed by Special Judge, Prevention of Corruption Act on 24.9.2009, which is challenged in the instant revision.

On perusal of the impugned order, it transpires that once charge was framed after hearing arguments of the counsels for respective parties as far back as on 21.5.2007, there was no occasion to review the said order framing charge. It appears that revisionists failed to make any mention before this Court in Criminal Misc. Application No. 17987 of 2007 regarding the fact that charge has already been framed under Sections 120B and 420, I.P.C. and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. So far quashing of the detention order in Habeas Corpus Writ Petition No. 12746 of 2002 is concerned, it was absolutely on technical ground for non-explanation of delay in execution of detention order. There was no explanation in the counter-affidavit filed on behalf of Respondents in between 16.2.2001 and 10.4.2001, second period of delay was from 15.1.2002 when Hon''ble Supreme Court vacated stay order passed by this Court till 19.3.2002.

In view of facts and circumstances of the case and on a close scrutiny of documents and consideration of arguments of Sri. M.P. Srivastava, prayer made in the instant revision appears to be misconceived. I do not find any illegality whatsoever in the impugned order dated 24.9.2009, passed by Special Judge, Prevention of Corruption Act, Ghaziabad. The instant revision lacks merits and is, accordingly, dismissed.