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2002 DIGILAW 1202 (PNJ)

Bant Singh v. State Of Punjab

2002-11-13

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. This appeal is directed against the judgment/order passed by the Judge, Special Court, Faridkot who vide order dated 15.9.1988 convicted and sentenced the appellant to undergo RI for one year and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo RI for three moths under Section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act (hereinafter called `the Act) and to undergo RI for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo RI for 3 months under Section 161 Indian Penal Code. 2. The case of the prosecution is that the appellant was posted as Revenue Patwari, Halqua Fatehgarh on 21.2.1984 and accepted Rs. 50/- at Fatehgarh from Balaur Singh PW as illegal gratification for supplying copy of jamabandi. The charge against the appellant was framed under section 5(1)(d) read with Section 5(2) of the Act and Section 161 Indian Penal Code. After conclusion of the trial, the appellant was convicted and sentenced as mentioned in paragraph 1 of the judgment, aggrieved by which the present appeal has been preferred. Shri S.C. Chhabra, counsel for the appellant submitted that the appellant has been prosecuted on the same allegations in which after full trial the appellant was acquitted by the Judge, Special Court, Faridkot vide order dated 9.4.1985. Copy of the judgment has been brought on record as Annexure D-1. He contended that no one can be vexed twice for the same offence as it amounts to double jeopardy. 3. Shri H.S. Garewal, DAG, Punjab virtually failed to support the order of the Judge, Special Court. 4. I have considered the submissions made by the counsel for the parties and have perused the record. 5. In this very FIR in which the appellant has been convicted and sentenced was earlier prosecuted and the case was tried by the Judge, Special Court, Faridkot. The appellant was charge-sheeted under Section 5(1)(d) read with section 5(2) of the Act and also under Section 161 Indian Penal Code. The prosecution closed the evidence. Statement of appellant under Section 313 Cr.P.C. was recorded. In defence, the appellant examined Gurdev Singh, Sadar Kanungo as DW-1 and Gurmel Ram of the office of Director, Consolidation of Holdings, Punjab, Jalandhar as DW-2. The prosecution closed the evidence. Statement of appellant under Section 313 Cr.P.C. was recorded. In defence, the appellant examined Gurdev Singh, Sadar Kanungo as DW-1 and Gurmel Ram of the office of Director, Consolidation of Holdings, Punjab, Jalandhar as DW-2. After recording the evidence of the prosecution as well as of the defence, the appellant was acquitted to the charge framed against him for want of proper and valid sanction. 6. Now after getting sanction from the competent authority, again fresh challan has been presented. Entertaining the supplementary challan and taking cognizance of the offence against the appellant for the second time is against the basic principle of criminal justice, as no-one can be vexed twice for the same offence as it will be a double jeopardy. 7. Admittedly, the appellant was acquitted on dated 9.4.1985. The State has not filed any appeal/revision against acquittal and the order of acquittal has, therefore, attained finality. Once the order has attained finality, even though the appellant has been acquitted on the ground that sanction was not valid. The prosecution can not be revived by giving an opportunity to the prosecution to patch up the defect in the prosecution case. In State v. Kuldeep Singh and others, 1960 PLR 46 the Division Bench of this Court has held as under :- "that it is wholly immaterial upon what grounds the order of acquittal is made. The section does not say that the order of acquittal must be made on merits before it operates as a bar to second prosecution. Even if the order of acquittal is made on a technical ground, it will prevent further prosecution of the accused person." 8. If the prosecution is given an opportunity to file fresh challan after acquittal, then there will be no end of litigation and harassment to the accused. The appellant has raised objection before the trial Court that he has already been acquitted by the Judge, Special Court vide order dated 9.4.1985 and he can not be convicted and sentenced for the same offence. The appellant has raised objection before the trial Court that he has already been acquitted by the Judge, Special Court vide order dated 9.4.1985 and he can not be convicted and sentenced for the same offence. This plea raised by the appellant has been brushed aside by the Judge, Special Court, Faridkot by observing as under :- "The statement of Swaran Singh recorded by Shri J.C. Aggarwal, Special Judge, Faridkot, on 12.3.1985 is not admissible in evidence in the subsequent trial against the accused as he had no jurisdiction to proceed against the accused for the offence for which he had been charged, on the ground that proper and valid sanction had not been obtained by the prosecution before putting up the challan against him." 9. These observation of the learned Special Court are palpably erroneous. When appellant was earlier prosecuted, the sanction was on the record. On the basis of that sanction, the cognizance was taken by the Judge, Special Court but at the time of termination of trial, it was found that sanction is not valid and the appellant was acquitted. If the order of acquittal was erroneous and illegal then the State should have filed an appeal. The appellate court can either uphold the order or set aside the same but there is no provision in the Cr.P.C. which gives power to the prosecution to try the accused for the same offence for which he has been acquitted by removing the lacuna in the prosecution case. 10. For the reasons mentioned above, the appeal is accepted. The conviction and sentence awarded to the appellant is set aside. Fine, if already paid be returned to the appellant.