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Madhya Pradesh High Court · body

2007 DIGILAW 1141 (MP)

Ajay Rai v. State of M. P.

2007-10-26

S.C.SINHO

body2007
ORDER 1. This revision petition under section 397/401 of the Code of Criminal Procedure, 1913 (hereinafter it shall be referred as 'Code' for short) has been filed by the petitioner against the order dated 31.3.2006 passed by Additional Sessions Judge-cum-Special Judge (Lokayukta), Jabalpur in Special Case No. 2/06 whereby the objection filed on behalf of the petitioner in filing of second charge-sheet has been rejected. 2. No exhaustive statement of facts is for disposal of this revision petition. Suffice it to State that a Special Criminal Case No. 3/2000 against the petitioner was filed under sections 7 and 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988. After completion of the trial the learned Special Judge, (Lakayukta) vide judgment dated 13.3.2002 in Special Case No. 3/2000 has acquitted the petitioner. It was held that the sanction granted in the aforesaid case was not valid and applicant was acquitted in view of apex Court judgment in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh [ AIR 1979 SC 677 ] on the basis that the prosecution cannot be given an opportunity to filling up of lacuna by producing fresh evidence. It will be appropriate to re-produce last portion of para 4, which reads as under: "Lastly, it was submitted by Mr. Rao that he should be given a chance to produce the materials before the Court to satisfy that the Sanctioning Authority had duly applied its mind to the facts constituting the offence. We are, however, unable to accede to this prayer which has been made a very stage. The prosecution had been afforded a full and complete opportunity at the trial stage to produce whatever material it liked and it had chosen to examine two witnesses but for reason best known to it did not produce the note which formed the subject-matter of the resolution of the sanctioning authority -Exh. P-16. It is well settled that in a criminal case this Court or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it." 3. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it." 3. Learned Advocate of the applicant Shri Anil Khare has stated that applicant was acquitted in view of the case of Mohd. Iqbal Ahmed (supra), therefore a fresh challan cannot be filed by non-applicant against applicant and it will amount to review of original judgment. 4. Learned counsel for the non-applicant has stated that in Mohd. Iqbal case (supra), an opportunity was sought in the Supreme Court for filling up the lacuna, whereas in this case second challan is filed only after two years before Special Court and this point is fully covered in State of Karnataka v. S. Nagraj Swami in [2006 (1) SCC (Cri.) 47]. Therefore this revision should be dismissed. 5. I have heard both the counsel and perused the record. 6. It will be profitable to reproduce sub-section (1) of section 300 of "300. Persons once convicted or acquitted not to be tried for same offence. -- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof." The essential conditions for invoking the bar under the said section are : (i) the Court had requisite jurisdiction to take cognizance and tried the accused, and (ii) the Court has recorded an order of conviction or acquittal, and such conviction/acquittal remains in force. 7. Thus it is clear that if a proceeding is initiated without sanction, the same would be null and void. This position is also not challenged by learned Advocate for the applicant but his main objection was that applicant was acquitted while placing reliance on the case of Mohd. Iqbal Ahmed (supra), therefore this will amount to be a retrial. 8. Hon'ble Apex Court in State of Kamataka (supra), has held in para 25 reads as under : "25. This position is also not challenged by learned Advocate for the applicant but his main objection was that applicant was acquitted while placing reliance on the case of Mohd. Iqbal Ahmed (supra), therefore this will amount to be a retrial. 8. Hon'ble Apex Court in State of Kamataka (supra), has held in para 25 reads as under : "25. In view of the aforementioned authoritative pronouncements, it is not possible to agree with the decision of the High Court that the trial Court was bound to record either a judgment of conviction or acquittal, even after holding that the sanction was not valid. We have noticed herein before that even if a judgment of conviction or acquittal was recorded, the same would not make any distinction for the purpose of invoking the provisions of section 300 of the Code as, even then, it would be held to have been rendered illegally and without jurisdiction." 9. Thus it makes clear that any person once convicted, acquitted or discharged on the ground of invalid sanction for prosecution initiation of filing of new charge-sheet is not barred by section 300 of the Code. It cannot be said that because learned Special Judge has also placed reliance on Mohd. Iqbal Ahmad (supra), second challan cannot be filed. Therefore, impugned order is neither illegal nor perverse. 10. As the impugned order is reasonable in accordance with law, it is not a fit case where interference in the matter in a revision petition is called for. 11. It is further observed that the learned trial Judge will not be affected by the judgment dated 13.3.2002 passed in Special Case No. 312000 while deciding this case. This petition being devoid of any merit is hereby dismissed.