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Judgment
Dinesh Kumar Singh, J
Since the common question of law and facts are involved in these petitions, therefore, they are being heard and decided by a common judgement.
These two petitions under Section 482 Cr.P.C. have been filed for quashing the summoning order dated 11.10.2018 and the proceedings arising out of F.I.R. No.RC 0062010A0026 and registered as Criminal Case No.1616 of 2018 on the basis of charge sheet dated 27.8.2018 filed by the Central Bureau of Investigation (for short 'the CBI'), pending before the Special Judge, CBI, Court No.3, District Lucknow, under Sections 120(B), 420, 467, 468, 471 IPC and Section 13(2) read with Section 13(1)(c)&(d) of the Prevention of Corruption Act (for short 'the Act').
The aforesaid case has been registered on the order of this Court passed in Writ Petition No.10503 (MB) of 2009. The case was also being investigated by the Special Investigation team of Uttar Pradesh Police. However, later on, it was transferred to the CBI on the directions of this Court.
The allegations in the FIR are that during the period 2004-2006 several persons with criminal conspiracy with each other and in pursuance thereof misappropriated and diverted food grains meant for Below Poverty Line (BPL) persons, Mid Day Meal and Antyoday Schemes of Varanasi district in abuse of their official positions.
The CBI conducted the investigation and submitted charge sheet on 10.7.2013 against eight accused, including the petitioners, under Sections 120-B, 218, 409, 420, 467,468, 471 IPC and Section 13(1)(c)&(d) of the Act. It was further said that supplementary charge sheet would be filed against other accused on conclusion of the investigation against them. It was also said that the investigation in respect of other blocks of Varanasi district was in progress and supplementary reports in accordance with law in respect of the same would be filed after completion of the investigation. Allegation against the petitioners is that petitioners and other accused namely, Subhash Chandra Srivastava, Awadhesh Singh etc. were the financers, who conspire with the Godown In-charge Sri Prakash Mishra and financed pay orders against which the food grains were falsely shown as issued to the Kotedars and were diverted by the Godown In-charge Sri Prakash Mishra in conspiracy with the said financers. The CBI has filed separate charge sheets for each block of Varanasi district where this scam was carried out by the accused in similar manner. The second charge sheet was filed on 27.8.2018 on which the Magistrate has taken cognizance and registered a fresh case No.1616 of 2018 in which the summoning order had been issued against the petitioners.
Heard Sri Santosh Kumar Bhatt, learned counsel representing the petitioners and Sri Shekhar Srivastava, Advocate holding brief of Mr. S.B. Pandey for the CBI.
Learned counsel for the petitioners submits that on a single FIR, separate charge sheets cannot be filed. The investigating agency can file supplementary charge sheet under the provisions of Section 173(8) Cr.P.C. Therefore, the trial court was wrong to register the afresh Case No.1616 of 2018 on the second charge sheet against the petitioners, which is liable to be quashed as it is an abuse of process of the Court and illegal and violative of the provisions of Section 173 Cr.P.C.
On the other hand, Sri Shekhar Srivastva Advocate holding brief of Sri S.B. Pandey, learned counsel representing the CBI submits that he does not possess with the file and, therefore, no argument has been advanced on behalf of the CBI.
From the facts stated above, it is clear that the accused had entered into separate conspiracies having similar purpose. Modus operandi of the commission of the offence would not make it a single offence when the offences have been committed for separate block by same or different group of people. If in pursuance of the conspiracy, the accused have committed distinct offences, there have to be separate trials. The CBI after investigation of the one FIR, has found that the accused have committed series of offences in furtherance of the conspiracy and, therefore, it has filed separate charge sheets on which the trial court has taken cognizance.
The Supreme Court in the case of State of Jharkhand through S.P., CBI vs. Lalu Prasad Yadav alias Lalu Prasad, (2017) 8 SCC 1 in paragraphs 40, 41, 42, 49 and 50 which summarising the law on the point has held as under :-
"40. In the instant case, offences are not the same offence. There can be different trials for the same offence if tried under two different enactments altogether and comprised of two different offences under different Acts/statutes without violation of the provisions of Article 20(2) or Section 300 CrPC. This Court has decided the issue in various cases:
40.1. In Kharkan v. State of U.P. [Kharkan v. State of U.P., (1964) 4 SCR 673 : AIR 1965 SC 83 : (1965) 1 Cri LJ 116] this Court has laid down thus: (AIR p. 86, para 10)
"10. ... Even if the two incidents could be viewed as connected so as to form parts of one transaction it is obvious that the offences were distinct and required different charges. The assault on Tikam in fulfilment of the common object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it. The new common object to beat Puran was formed at a time when the common object in respect of Tikam had been fully worked out and even if the two incidents could be taken to be connected by unity of time and place (which they were not), the offences were distinct and required separate charges. The learned Sessions Judge was right in breaking up the single charge framed by the Magistrate and ordering separate trials. In this view the prior acquittal cannot create a bar in respect of the conviction herein reached."
40.2. In Maqbool Hussain v. State of Bombay [Maqbool Hussain v. State of Bombay, 1953 SCR 730 : AIR 1953 SC 325 : 1953 Cri LJ 1432] this Court has laid down thus:"The appellant had smuggled gold into India and was booked under Section 167(8) of the Sea Customs Act, 1878 and subsequently when no one came to claim the gold, he was charged under Section 8 of FERA. He challenged this as violation of Article 20(2). The Court analysed the scope of Article 20(2) and held that the "prosecution" must be before a court of law or judicial tribunal. The plea of double jeopardy was discarded as it was held that the Customs Authorities were not a judicial tribunal or court. For double jeopardy, 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 and not that the facts relied on by the prosecution are the same in the two trials."
40.3. In State of Bombay v. S.L. Apte [State of Bombay v. S.L. Apte, (1961) 3 SCR 107 : AIR 1961 SC 578 : (1961) 1 Cri LJ 725] a Constitution Bench of this Court has laid down as to the issue regarding conviction under Section 409 IPC and Section 105 of the Insurance Act. The submission of double jeopardy was repelled with respect to offences under Section 11 IPC and Section 105 of the Insurance Act. It was held that the offences under both the Acts are distinct due to their ingredients. So as to constitute double jeopardy two offences should be identical.
40.4. In T.S. Baliah v. ITO [T.S. Baliah v. ITO, (1969) 3 SCR 65 : AIR 1969 SC 701], the appellant was sought to be prosecuted under Section 177 IPC and Section 52 of the Income Tax Act, 1922 for furnishing wrong information in his tax returns. On consideration of Section 26 of the General Clauses Act, this Court held that the provision did not provide a bar on trial and conviction for the same offence under more than one enactment in case ingredients of offences are distinct. It only barred double punishment and not double conviction.
40.5. In Collector of Customs v. Vasantraj Bhagwanji Bhatia [Collector of Customs v. Vasantraj Bhagwanji Bhatia, (1988) 3 SCC 467 : 1988 SCC (Cri) 679] the question arose whether acquittal of an accused charged with having committed the offence punishable under Section 111 read with Section 135 of the Customs Act, 1969 created a legal bar to the accused, subsequently being prosecuted under Section 85 of the Gold (Control) Act, 1968. It was held that the ingredients of the offence under each of the enactments were quite different. The Court applied the test developed in Maqbool Hussain [Maqbool Hussain v. State of Bombay, 1953 SCR 730 : AIR 1953 SC 325 : 1953 Cri LJ 1432] and held the two offences to be different in scope and contents of their ingredients. The Court also relied upon S.L. Apte [State of Bombay v. S.L. Apte, (1961) 3 SCR 107 : AIR 1961 SC 578 : (1961) 1 Cri LJ 725] decision and observed that what is necessary is to analyse the ingredients of the two offences and not the allegations made in two complaints. No doubt about it that there can be separate offences but ingredients would remain same under penal provision but that would also not make out a case of violating the provisions of Article 20(2) of the Constitution and Section 300 CrPC.
40.6. In case ingredients of the offences to be tried separately arise out of the same offence, there can be separate trials under two enactments, if the ingredients constituting two offences are different under different Acts, there is no bar for separate trials. In State of Bihar v. Murad Ali Khan [State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 : 1989 SCC (Cri) 27] it was held: (SCC pp. 665, 667 & 668, paras 24, 28 & 31)The expression "any act or omission which constitutes any offence under this Act" in Section 56 of the Wild Life (Protection) Act, 1972, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also. Further held that, if there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. The same set of facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time constitute an offence under any other law.
40.7. In State of Rajasthan v. Hat Singh [State of Rajasthan v. Hat Singh, (2003) 2 SCC 152 : 2003 SCC (Cri) 451] this Court was dealing with vires of the Rajasthan Sati (Prevention) Act, 1987. It was urged that Sections 5 and 6 of the new Sati Act were overlapping. It was held that with regard to Article 20(2) that subsequent trial or a prosecution and punishment are not barred if the ingredients of two offences are distinct. There can be separate offences from same set of facts and hence no double jeopardy.
40.8. In Monica Bedi v. State of A.P. [Monica Bedi v. State of A.P., (2011) 1 SCC 284 : (2011) 1 SCC (Cri) 22] this Court considered the meaning of the expression "same offence" employed in Article 20(2) and observed that second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. This Court has observed thus: (SCC pp. 293 & 295, paras 26 & 29)"26. What is the meaning of the expression used in Article 20(2) "for the same offence"?
What is prohibited under Article 20(2) is, that the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.
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It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20(2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence."
40.9. In Sangeetaben Mahendrabhai Patel v. State of Gujarat [Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621 : (2012) 4 SCC (Civ) 305 : (2013) 3 SCC (Cri) 445], with respect to double jeopardy, this Court has laid down thus: (SCC pp. 633-34, para 33)
"33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. 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. Motive for committing offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge."
40.10. In State of Rajasthan v. Bhagwan Das Agrawal [State of Rajasthan v. Bhagwan Das Agrawal, (2013) 16 SCC 574 : (2014) 6 SCC (Cri) 319] there were 3 FIRs registered with respect to illegal supply of explosives. Charge was under the Explosives Act. This Court held that the nature and manner of the offences committed by the accused persons were not identical but were different, and as such FIRs were not relating to the same offence as different acts happened in different places. As such the provisions contained in Section 186 CrPC would not apply.
40.11. In State (NCT of Delhi) v. Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] this Court considered the maxim nemo debet bis vexari pro una et eadem causa i.e. no man shall be put in jeopardy twice for one and the same offence. In case ingredients are different there can be separate trial for the same offence also. This Court has laid down thus: (SCC pp. 805-06, para 52)
"52. It is well-known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offences are distinct."
In the light of the aforesaid discussion, it is appropriate to consider the submissions raised by Shri Surendra Singh, learned Senior Counsel appearing on behalf of Lalu Prasad Yadav. It was submitted by the learned Senior Counsel that since the conspiracy was between 1988 and 1996 which included the period of 1994-1995, the conviction has been made on the charge of conspiracy from 1988 to 1996 which included all the treasuries of the erstwhile State of Bihar. There was no charge of separate conspiracy. Charges being similar in the cases which have been quashed. No case is made out for trial under Section 120-B. Same and identical circumstances are being relied upon by the prosecution. There are no new or additional circumstances in the cases which have been quashed. The conspiracies referred to are one and the same and not different conspiracies. Thus, in view of the trial which had concluded, there cannot be further trial on the charge of conspiracy.
We are unable to accept the submissions raised by the learned Senior Counsel. Though there was one general charge of conspiracy, which was allied in nature, the charge was qualified with the substantive charge of defalcation of a particular sum from a particular treasury in particular time period. The charge has to be taken in substance for the purpose of defalcation from a particular treasury in a particular financial year exceeding the allocation made for the purpose of animal husbandry on the basis of fake vouchers, fake supply orders, etc. The sanctions made in Budget were separate for each and every year. This Court has already dealt with this matter when the prayers for amalgamation and joint trial had been made and in view of the position of law and various provisions discussed above, we are of the opinion that separate trials which are being made are in accordance with the provisions of law otherwise it would have prejudiced the accused persons considering the different defalcations from different treasuries at different times with different documents. Whatever could be combined has already been done. Each defalcation would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of the Constitution or Section 300 CrPC. Separate trials in such cases is the very intendment of law. There is no room to raise such a grievance. Though evidence of general conspiracy has been adduced in cases which have been concluded, it may be common to all the cases but at the same time offences are different at different places, by different accused persons. As and when a separate offence is committed, it becomes punishable and the substantive charge which has to be taken is that of the offence under the PC Act, etc. There was conspiracy hatched which was a continuing one and has resulted into various offences. It was joined from time to time by different accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in Section 212(2), obviously, there have to be separate trials. Thus it cannot be said to be a case of double jeopardy at all. It cannot be said that for the same offence the accused persons are being tried again.
x x x x
This Court has distinguished general conspiracy from a number of separate conspiracies having a similar general purpose. Where different groups of persons cooperate towards their separate ends without any privity with each other, each combination constitutes a separate conspiracy. It was held that in the case there was single general conspiracy to smuggle gold into India from foreign countries. The contention raised was that separate conspiracies were raised by the accused in the facts of the said case. The facts are quite different in the instant case. The question which has come up for consideration did not arise in the aforesaid decision and this Court has held that there was no prejudice caused to the accused persons by not making separate trials.
The modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be separate trials. There may be a situation where in furtherance of general conspiracy, offences take place in various parts of India and several persons are killed at different times. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scot-free and commit a number of offences which is not the intendment of law. The concept is of "same offence" under Article 20(2) and Section 300 CrPC. In case distinct offences are being committed there has to be independent trial for each of such offence based on such conspiracy and in the case of misappropriation as statutorily mandated, there should not be joinder of charges in one trial for more than one year except as provided in Section 219. One general conspiracy from 1988 to 1996 has led to various offences as such there have to be different trials for each of such offence based upon conspiracy in which different persons have participated at different times at different places for completion of the offence. Whatever could be combined has already been done. Thus we find no merit in the submissions made by the learned Senior Counsel appearing on behalf of the accused persons."
Thus, when the accused have entered into separate conspiracies for committing the offences in each block, the filing of separate charge sheet in pursuance of one FIR, is neither illegal nor improper and the trial court has rightly taken cognizance in each charge sheet.
Both the petitions being devoid of merit and substance, are hereby dismissed.