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2005 DIGILAW 1014 (PNJ)

Sewak Singh v. State of Punjab

2005-09-21

ADARSH KUMAR GOEL

body2005
ORDER Adarsh Kumar Goel, J. - This order will dispose of Criminal Revision Nos. 2087 and 2167 and 2167 of 2002 and Criminal M. No. 43463-M of 2002, as a common question is involved in these petitions. The facts are taken from Criminal Revision No. 2167 of 2002. 2. The petitioner was challaned on 11.11.1993 to face trial under Section 13(2) of the Prevention of Corruption Act, 1988. Charge was framed against him on 10.12.1993. Four witnesses were examined. However, proceedings were dropped on 4.2.1993 in view of judgment of this Court taking the view that Inspector, Vigilance Department was not competent to investigate the offence. The said judgment was reversed by the Honble Supreme Court in State of Punjab v. Harnek Singh, AIR 2002 Supreme Court 1074 :. Thereafter, a supplementary challan was filed on which a charge was framed and case was fixed for evidence 23.8.2002. Hence these petitions. 3. Learned counsel for the petitioners in all the petitions submitted that once proceedings were dropped, supplementary challan could not be filed as this course will amount to review of the orders which was not permissible, as held in Maj. General A.S. Gauraya and another v. S.N. Thakur and another, (1986)2 SCC 709; Hari Singh Mann v. Harbhajan Singh Bajwa, 2000(4) RCR(Criminal) 650; Sohan Lal and others v. State of Rajasthan, AIR 1990 Supreme Court 2158 and judgments of Delhi High Court in Mohd. Hashim Masood v. State, 2004(3) RCR(Criminal) 298 and Durga Prasad v. State of Delhi, 2000(3) RCR(Criminal) 102. 4. Learned counsel for the State supports the impugned orders and submits that since proceedings were dropped on the ground that the investigating officer was not competent to investigate the matter, filling of a fresh challan was not barred. The challan could be filed by a competent investigating officer and that will be a charge of situation and will not be the review of order of dropping proceedings which were vitiated by some defect. 5. I have considered the rival submissions and perused the record. 6. The question is whether proceedings could be initiated against the petitioners after the same were dropped earlier. In Yusofalli Mulla Noorbhoy v. The King, AIR 1949 Privy Council 264, identical question was considered. The accused was charged with the offence of hoarding under the provisions of the Hoarding and Profiteering Prevention Ordinance, 1943. Evidence was taken after framing the charges. The question is whether proceedings could be initiated against the petitioners after the same were dropped earlier. In Yusofalli Mulla Noorbhoy v. The King, AIR 1949 Privy Council 264, identical question was considered. The accused was charged with the offence of hoarding under the provisions of the Hoarding and Profiteering Prevention Ordinance, 1943. Evidence was taken after framing the charges. Meanwhile, a decision was rendered by the High Court that in absence of proper sanction, charge could not proceed. On that ground, the accused was acquitted. No appeal was filed against acquittal but fresh sanction was obtained and fresh prosecution was instituted. The trial Court acquitted the appellant by applying the bar under Section 403 of the Code of Criminal Procedure, 1898 (parallel to Section 300 of the present Code). The High Court set aside the order of acquittal and the Privy Council approved the said view. It was held that since earlier prosecution was held to be null and void, there was no trial by a competent Court. Inter-alia, following arguments were considered and rejected :- (i) The Court was competent to try cases. (Para 14) (ii) No appeal was filed. (Para 17) (iii) Principle of double jeopardy was applicable. (Para 18) 7. Again, the matter was considered by Honble the Supreme Court by a Bench of five Judges in Baij Nath Prasad Tripahi v. The State of Bhopal and another, AIR 1957 Supreme Court 494. The accused was tried under the provisions of Corruption Act and convicted but conviction was quashed in appeal for want of sanction and order for fresh trial was passed by the Government after fresh sanction. The said sanction was challenged before Honble the Supreme Court in writ jurisdiction. Dismissing the writ petition, the Honble Supreme Court held that the matter was covered by judgment of the Privy Council in Yusofalli (supra). It was observed :- "...The petitioners are not being prosecuted and punished for the same offence more than once, the earlier proceedings have been held to be null and void. With regard to Section 403, Code of Criminal Procedure, it is enough to state that the petitioners were not tried, in the earlier proceedings, by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of Section 403(1) of the Code to stand as a bar against their trial for the same offences". (Para 6). (Para 6). 8. In view of the above case-law, proceedings against the petitioners are not liable to be quashed. The decisions relied upon on behalf of the petitioners are on exercise of review jurisdiction and not initiation of fresh proceedings after earlier proceedings were held to be incompetent as a result of which, the Court was of the view that if had no jurisdiction to proceed further. 9. Accordingly, these petitions are dismissed. Petitions dismissed.