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Jharkhand High Court · body

2011 DIGILAW 222 (JHR)

Sripati Narayan Dubey v. State of Jharkhand

2011-03-18

R.R.PRASAD

body2011
Order Extraordinary jurisdiction of this Court has been invoked by the petitioner for quashing the entire criminal proceeding of R.C. Case No. 38A of 1996-PAT and R.C. Case No. 45A of 1996-PAT so far it relates to the petitioner on the ground of aforesaid two cases being hit by Section 300 of the Code of Criminal Procedure for the reason that the petitioner who has already been convicted in R.C. No. 39A of 1996-PAT on certain charges is being prosecuted for the same charges. 2. The facts leading to filing of this case are that in the year 1996, when it was detected that officials and staffs of Animal Husbandry Department in connivance with other accused persons including high-ups in the administration of the State have been withdrawing money through different treasuries of the State of Bihar fraudulently putting State exchequer to a great loss, 64 cases known as Fodder Scam Cases were instituted in different places of the then State of Bihar. 3. Out of those cases, three cases, namely, Dumka Town P.S Case Mo. 16 of 1996, Dumka Town P.S. Case No. 21 of 1996 and Dumka Town P.S. Case No. 22 of 1996 to which we are concerned with were registered at Dumka. Dumka Town P.S. Case No. 16 of 1996 4. The aforesaid case was registered on the allegation that during the period from December, 1995 to January, 1996, allotment was given to the Regional Director, Animal Husbandry Department, Dumka of Rs. 1.50 lakhs but purchase of medicines, instruments and payment towards transportation of fodder were shown to have been made to the extent of Rs. 3,76,38,853/- on the basis of forged allotment letters, forged bills/vouchers and thereby it was alleged that the Regional Deputy Director in connivance with other staffs, suppliers misappropriated the said amount by committing act of forgery. Dumka Town P.S. Case No. 21 of 1996 5. The said case was lodged by Rajiv Arun Ekka, I.A.S. the then (probationer) wherein it has been alleged that during the period from 1991 to 1996, District Animal Husbandry Officers in connivance with other persons including suppliers of the medicines and fodder drew huge money fraudulently on the basis of forged allotment letters from Dumka Treasury by committing act of forgery, that is to say on the basis of forged bills/vouchers etc. Dumka Town P.S. Case No. 22 of 1996 6. Dumka Town P.S. Case No. 22 of 1996 6. The case was lodged on the allegation that during the period from 1991 to 1996, the then Regional Director, Animal Husbandry Department, Dumka in connivance with others including suppliers of medicines and fodders drew huge money by forging bills/vouchers etc. 7. In course of time, investigation of the aforesaid three cases as also of other cases were taken over by the C.B.I. under order of the Hon'ble Supreme Court and also of the Patna High Court and accordingly, aforesaid Dumka P.S. Case No. 16 of 1996, Dumka P.S. Case No. 21 of 1996 and Dumka P.S. Case No. 22 of 1996 were registered by the C.B.I. as R.C. Nos. 38A of 1996-PAT, 39A of 1996-PAT and 45A of 1996-PAT respectively. 8. In course of investigation of those cases by the C.B.I. complicity and connivance of this petitioner with other accused persons came to light wherein it was found by the C.B.I. that while the petitioner was posted as Divisional Commissioner, Dumka during the period from January, 1994 to June, 1995, he was quite aware of the facts from several sources that excess drawal is being made by Regional Director, Animal Husbandry Department, Dumka but he did not take any action to check the fraudulent withdrawal of the money, rather the petitioner lifted the restriction put on by the then Deputy Commissioner, Dumka that all bills above Rs.1 lakh should be referred to him for scrutinize and payment by making an endorsement on a representation of Dr. Shesh Muni Ram permitting the Treasury Officer, Dumka to make payment of bills even drawn for above Rs. 1 lakh and this was done in connivance with the then Regional Deputy Director and other accused persons and in lieu of that, 5% of the total value of the false allotment order issued in favour of Animal Husbandry Department, Dumka was paid to the petitioner. 9. On being found allegation of receiving money to the extent of Rs. 17.50 lakh as illegal gratification to be true, charge-sheets were submitted against the petitioner in all the three cases. 10. 9. On being found allegation of receiving money to the extent of Rs. 17.50 lakh as illegal gratification to be true, charge-sheets were submitted against the petitioner in all the three cases. 10. After submission of the charge sheet in R.C. No. 39A of 1996-PAT, the petitioner was put on trial alongwith other accused persons on the following charges: "Firstly, that you are during the period from January 1994 to June 1995 at Dumka and other places cheated State Public Exchequer through Dumka Treasury, by dishonestly and fraudulently inducting them to deliver to you a sum of Rs. 1,47,60,294/- which was the property of Government of Bihar Being Commissioner, Santhal Pargana Division, Dumka, you were fully aware of the fact that there was serious allegations regarding fraudulent withdrawals at Dumka Treasury Office Dumka by Regional Director, A.H.D., Dumka and the Treasury Office. Dumka, on the basis of forged allotment letters and false bills which was also communicated to him through the complaint from Bihar State Non-Gazetted Employees Federation dated 18.4.1994. You were also aware of the reports in the newspaper through the press clippings related to the excess withdrawals of Rs. 50 lakhs by Regional Director, A.H.D., Dumka which was communicated to you by Public Relation Department on 2.4.1994. Apart from this you were also aware the reasonable financial restrictions imposed by Shri Anjani Kumar Singh, the then D.C. Dumka on 17.8.1993 instructing that all bills above Rs. 1 lakh should be referred to him for scrutiny and payment in pursuance of the said criminal conspiracy, you alongwith Dr. Shesh Muni Ram, fraudulently and dishonestly issued an order dated 31.5.1994 to the Treasury Officer, Dumka, permitting him to make payment of bills for above Rs.1 lakh and thereby bypassed the D.C. Dumka, Shri Anjani Kumar Singh who was the Controlling Authority of District Treasury, Dumka. The result of the said order was that DAHO Bills even above Rs. 1 lakh was being paid at the Treasury Office. You were also paid a consideration of 5% of the total value of' false allotment orders issued in favour of A.H.D. Dumka and that you thereby committed an offence punishable under Section 420 of the Indian Penal Code and within my cognizance. 1 lakh was being paid at the Treasury Office. You were also paid a consideration of 5% of the total value of' false allotment orders issued in favour of A.H.D. Dumka and that you thereby committed an offence punishable under Section 420 of the Indian Penal Code and within my cognizance. Secondly, that you during the aforesaid period and at aforesaid places being a public servant, by corrupt and illegal means or by otherwise abusing your official position as such public servant, obtained for yourself and for other co-accused persons pecuniary advantage from the co-accused suppliers and others to the extent of Rs.26,32,440/- during the aforesaid period from the Government of Bihar through Dumka Treasury and you thereby committed criminal misconduct and offence specified in Section 13(1)(d) of the Prevention of Corruption Act, 1988 punishable under Section 13(2) of that Act and within my cognizance. And I hereby direct that you be tried on the said charge." 11. On being found guilty for various offence, the petitioner was convicted under Sections 120B, 420, 467, 468, 471, 477A of the Indian Penal Code and also under Section 420 of the Indian Penal Code simplicitor as well as under Section 13(1)(d) of the Prevention of Corruption Act, 1988 and was awarded maximum sentence for four years for one of the offences. Against the said judgment of conviction and order of sentence, Cr. App. No. 790 of 2008 has been preferred before this Court. 12. On being convicted and sentenced in one of the cases bearing R.C. No. 39A of 1996-PAT, the petitioner has filed this application for quashing the entire criminal proceedings of R.C. No. 38A of 1996-PAT and R.C. No. 45A of 1996-PAT. 13. Mr. B.P. Pandey, learned Sr. Counsel appearing for the petitioner submitted that the petitioner who held office of Divisional Commissioner, Dumka from 24.1.1994 to 30.6.1995 only was made accused in all the three cases e.g. R.C. No. 39A of 1996-PAT, period of offence relates to 1991-92 to 1995-96, R.C. No. 45A of 1996-PAT relating to the offence for the period 1991 to 1996 and lastly, R.C. No. 38A of 1996-PAT for the period December, 1995 to January, 1996. 14. It was further pointed out that on same and similar allegations that the petitioner by putting an endorsement on 31.5.1994 on an application of one Dr. 14. It was further pointed out that on same and similar allegations that the petitioner by putting an endorsement on 31.5.1994 on an application of one Dr. Shesh Muni Ram lifted the ban imposed by the then D.C., Dumka that all bills above Rs.1 lakh should be referred to him for scrutinizing and its passing and thereby the petitioner facilitated other accused including officials and staff of Animal Husbandry Department and the suppliers of the medicines/fodders to draw the amount fraudulently and in lieu of that, the petitioner accepted a sum of Rs.17.50 lakhs as illegal gratification, charge-sheets were submitted against the petitioner in all the three cases. 15. In this respect it was further submitted that once the petitioner was convicted on the charge as aforesaid in one of the cases (R.C No. 39A of 1996-PAT), the petitioner now cannot be prosecuted on the same charge in another two cases (R.C. No. 38A of 1996-PAT and R.C. No. 45A of 1996-PAT) but it is irony that the petitioner is being prosecuted in those two cases on the same charge, in spite of the fact that the petitioner does have constitutional protection for being not prosecuted for the same offence more than once as enshrined under Article 20(2) of the Constitution of India. 16. Learned counsel in this respect submitted that it is the case of the prosecution in all the three cases that the petitioner did accept a sum of Rs.17.50 lakhs as illegal gratification for facilitating other accused to draw money fraudulently from the State exchequer. Nowhere it is the case of the prosecution that the petitioner did receive gratification other than Rs. 17.50 lakhs for which he is being tried in other two cases. Once the petitioner has been convicted in R.C. No.39A of 1996-PAT on aforesaid accusation, he cannot be prosecuted again on same set of allegation as subsequent prosecution would be hit by Section 300 of the Code of Criminal Procedure which postulates the theory of autrefois convict and autrefois acquit under which one cannot be prosecuted on the same set of fact if he has already been convicted or acquitted. Thus, the prosecution of the petitioner in R.C. No. 45A of 1996-PAT and R.C. No. 38A of 1996-PAT is hit by Section 300 of the Code of Criminal Procedure and as such both the case are fit to be quashed so far as the same relate to petitioner. 17. As against this, Mr. M. Khan, learned counsel appearing for the C.B.I. submitted that all the three cases relate to different period during which fraudulent drawal was made by the accused persons in connivance with each other and the amount which was fraudulently drawn by the accused persons is also different and, therefore, it cannot be said that the petitioner in spite of being convicted in one of the cases is being prosecuted in other two cases on the same charge. Thus, this case does not have any merit and is fit to be dismissed. 18. I have already noticed that all the three cases are concerned with fraudulent drawal of public money from Dumka Treasury. When the case was lodged, the petitioner who held office of Divisional Commissioner, Dumka from January, 1994 to June, 1995 was not an accused but in course of investigation in of those cases, it got transpired that the petitioner, in order to facilitate the other accused persons to draw the money from the Treasury fraudulently by putting an endorsement on 31.5.1994 on an application of co-accused lifted the ban imposed by the then Deputy Commissioner that all bills above Rs.1 lakh should be referred to him for scrutinizing and passing and in lieu of that, the petitioner did receive a sum of Rs.17.50 lakh from the co-accused. It has never been denied on behalf of the C.B.I. that the petitioner had ever accepted money other than Rs.17.50 lakh from the accused persons so as to form an altogether different transaction. 19. It has already been noticed that the petitioner for the charge as aforesaid was put on trial in R.C. No. 39A of 1996 PAT and has been found to be guilty. On such finding, the order of conviction and sentence has been passed as aforesaid. 20. 19. It has already been noticed that the petitioner for the charge as aforesaid was put on trial in R.C. No. 39A of 1996 PAT and has been found to be guilty. On such finding, the order of conviction and sentence has been passed as aforesaid. 20. At the same 'time, the petitioner is being prosecuted in other cases (R.C. No. 38A of 1996-PAT and R.C. No. 45A of 1996-PAT) on the allegation which are the same as it were in R.C. No. 39A of 1996-PAT which would be evident from the charge-sheet submitted by the C.B.I. in all three cases which have been annexed as Annexures-2, 3 and 4 which is against the constitutional protection as enshrined under Article 20(2) of the Constitution of India which reads as follows: " No person shall be prosecuted and punished for the same offence more than once." 21. At the same time, the provision as contained in Section 300 of the Code of Criminal Procedure does also postulate that no man should be vexed for more than one trial arising out of identical act committed by him when an offence has already been subject to judicial adjudication whether it ended in conviction or acquittal. The said provision reads as follows: 300. Person once convicted or acquitted not to be tried for the 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 sub-section (2) thereof. 22. The Hon'ble Supreme Court in a case of Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao [2011 (1) PLJR (SC)159] [: 2011 (1) JLJR (SC)191] after taking notice of the provision as contained in Article 20(2) of the Constitution of India and also under Section 300(1) of the Code of Criminal Procedure was pleased to observe as follows: "Thus, it can be seen that Section 300 (1) of the Code of Criminal Procedure is wider than Article 20(2) of the Constitution of India. While, Article 20(2) of the Constitution only state that no one can be prosecuted and punished for the same offence more than once. Section 300(1) of the Code of Criminal Procedure states that no one can be tried and convicted for the same offence or even for a different offence but on the same fact." 23. As I have already stated that it is the same allegation that the petitioner in order to facilitate the other co-accused to draw the money from Dumka Treasury fraudulently and illegally relaxed the ban put by the D.C. of not allowing one to draw money through a bill excess of Rs.1 lakh without the bill being .scrutinized and passed by him and thereby he received a sum of Rs. 17.50 lakh from the co-accused, on which the petitioner was tried in one case and was found guilty. Still he is being tried in other two cases on same set of allegations which is not permissible at all. 24. Thus, when on the same fact the petitioner has been convicted, any prosecution of the petitioner in other two cases (R.C. No. 38A of 1996-PAT and R.C. No. 45A of 1996-PAT) being hit by Section 300(1) of the Code of Criminal Procedure is quite illegal and is liable to be quashed. 25. Accordingly, the entire criminal proceeding of R.C. No. 38A of 1996-PAT and R.C. No. 45A of 1996-PAT is quashed so far it relate to the petitioner. 26. In the result, this application is allowed.