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Madhya Pradesh High Court · body

2012 DIGILAW 275 (MP)

B. K. Sahoo v. Central Bureau of Investigation

2012-03-06

M.A.SIDDIQUI, RAKESH SAKSENA

body2012
JUDGMENT : Asper Rakesh Saksena , J.:- Applicanthas filed this revision against the order dated 1-4-2011 passed by Special Judge, CBI, Bhopal in SpecialCase No. 1/2011 , whereby the application filed by him under Section 300(1) read with Section 245 of the Code of Criminal Procedure, dated 14-3-2011 has been dismissed. 2.Briefly stated the facts of the case are that applicant was posted as ChiefMedical Officer in Composite Hospital , BSF Academy , Takenpur , Gwalior (M.P.). On the basis of a complaint dated 9-3-2002 submitted by Mr. Jagir Singh Shran , Commandant,BSF Academy Takenpur , Camp at New Delhi about therecovery of a huge cash by the Board of Officers of BSF, amounting to Rs . 49 ,35,500 /- from Quarter No.383, Sector VII, Pushp Vihar ,New Delhi, kept in two suits cases, which were concealed by the applicant, acase was registered by CBI/ACB/New Delhi. It is alleged that accused Dr. Sahoo disclosed that he had concealed the ill-gotten moneyin two suit cases in the residential premises of Shri Ramesh Sharma, Assistant Commandant, BSF and on thebasis of above disclosure at the instance of Dr. Sahoo ,it was recovered. On opening of the suit cases by Dr. Sahoo in presence of Board Members and Officers of BSF, an amount of Rs . 49 ,35,500 /- was recovered. Itwas seized and sealed by BSF officials. On an enquiry by the BSF Authorities Takenpur , it was revealed that Dr. B.K. Sahoo had been taking illegal gratification from various candidates desirous ofrecruitment in BSF as Constables and that he had concealed the said money inthe aforesaid suit cases at the residence of Shri Ramesh Sharma, Assistant Commandant. In thesecircumstances, SP/CBI/ACB registered the case and arrested the applicant Dr. Sahoo . During investigation, various documents relating tothe assets acquired by Dr. Sahoo , his wife and familymembers were seized. Since, the assets found in the possession of Dr. Sahoo were disproportionate to the known sources of hisincome, the offence punishable under Section 13 (1) (e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity 'the Act') wasregistered. After obtaining the sanction, charge sheet has been filed. 3.Since, Dr. Since, the assets found in the possession of Dr. Sahoo were disproportionate to the known sources of hisincome, the offence punishable under Section 13 (1) (e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity 'the Act') wasregistered. After obtaining the sanction, charge sheet has been filed. 3.Since, Dr. Sahoo , under a conspiracy with otheraccused persons was found to have dishonesty issued forged medical fitnesscertificates for grant of fake admit cards for the selection of desirouscandidates in BSF after obtaining the illegal gratification and other pecuniaryadvantage, cases under Sections 420, 468, 471 read with Section 120-B of theIndian Penal Code and Section 13 (1) (d) read with Section 13 (2) of the Actwere also registered. 4.Learned Counsel for the applicant contended that in view of the provision ofSection 300 (1) of the Code of Criminal Procedure read with Article 20 (2) ofthe Constitution of India applicant could not have been prosecuted in respectof the recovery of Rs . 49,35,500/- twice. Since thecharge-sheets for the offences under Indian Penal Code and the offence underSection 13 (1) (d) read with Section 13 (2) of the Act have already been filed,the prosecution of applicant under Section 13 (1) (e) read with Section 13 (2)of the Act was not possible and the applicant ought to have been discharged. 5.We have heard the learned Senior Counsel and perused the record. 6.Provision of Section 300 (1) of the Code of Criminal Procedure reads as under : - "300.Person once convicted or acquitted not to be tried for same offence. - (1) Aperson who has once been tried by a Court of competent jurisdiction for anoffence and convicted or acquitted of such offence shall, while such convictionor acquittal remains in force, not be liable to be tried again for the sameoffence, nor on the same facts for any other offence for which a different chargefrom the one made against him might have been made under sub-section (1) ofSection 221, or for which he might have been convicted under subsection (2)thereof." 7.A bare perusal of the above provision reveals that once a person has been triedand convicted by the Court of Competent jurisdiction, he shall not be liable tobe tried again. This provision is clearly not applicable in the circumstancesof the case, since the trial of any of the case has not been completed. This provision is clearly not applicable in the circumstancesof the case, since the trial of any of the case has not been completed. 8.Article 20 (2) of the Constitution of India provides as under: - "20.Protection in respect of conviction for offences.- (2)No person shall be prosecuted and punished for the same offence more than once. *** 9.On perusal of the provisions of the Act and the accusations made against theapplicant in the aforesaid two cases, it is apparent that by their nature theoffences under Sections 13 (1) (d) and 13 (1) (e) of the Act are differenthaving altogether different ingredients. The offence under Section 13 (1) (d)postulates that a public servant commits a misconduct if he,- ( i ) by corrupt or illegal means,obtains for himself or for any other person any valuable thing or pecuniaryadvantage; or (ii) by abusing his position as a public servant, obtainsfor himself or for any other person any valuable thing or pecuniary advantage;or (iii) while holding office as a public servant, obtains forany person any valuable thing or pecuniary advantage without any public interest. Whereas,when a public servant or any other person on his behalf is found in or has, atany time during the period of his office, been in possession of pecuniaryresources or property disproportionate to his known sources of income, which hecannot satisfactorily account for, he is said to have committed the offence ofcriminal misconduct under Section 13 (1) (e) of the Act. 10.Though, the offences remain criminal misconduct by the public servant, yet theconstituent ingredients of both the offences are entirely different. Since, theacts alleged against the applicant constitute offences falling in two separate categories, he can be prosecuted for both of them. Theprosecution of applicant for the charge under Section 13 (1) (e) of the Act,therefore, in our opinion, cannot be said to be the prosecution for the sameoffence. 11.For the aforesaid reasons, we find no error in the impugned order passed by theCourt below. 12.Revision is, accordingly, dismissed.