Supreme Court
State of Jharkhand through S.P., CBI v. Lalu Prasad and Ors.
MANU/SC/0586/2017
08.05.2017
Criminal
Separate charges for distinct offences must be framed separately and cannot be clubbed together for more than one year
Present appeals arise out of three separate judgments of learned Single Judge of High Court discharging three Accused persons namely; Lalu Prasad Yadav, Sajal Chakraborty and Dr. Jagannath Mishra on ground of their conviction in one of criminal cases arising out of fodder scam of erstwhile State of Bihar. Applying provision under Article 20(2) of Constitution of India and Section 300 of Code of Criminal Procedure, 1973 (Cr. PC), High Court has quashed RC No. 64A/96 against Lalu Prasad Yadav, four cases against Dr. Jagannath Mishra being RC Nos. 64A/96, 47A/96, 68A/96 and 38A/96 and two cases against Sajal Chakraborty being RC Nos. 20A/96 and 68A/96 on ground that they have been convicted in one of cases for offences involving same ingredients with respect to Chaibasa treasury. Issue to be considered is whether legal requirement is for one trial or more than one in facts of present case.
General conspiracy had been hatched as alleged for period 1988 to 1996 but defalcations are from different treasuries for different financial years by exceeding amount of each year which was allocated for Animal Husbandry Department for each of district for purpose of animal husbandry. Amount involved is different, fake vouchers, fake allotment letters, fake supply orders had been prepared with help of different sets of Accused persons. Though, there is one general conspiracy, offences are distinct for different periods.
Article 20(2) of Constitution says that, no person shall be prosecuted and punished for same offence more than once. This is called the doctrine of double jeopardy. There are two aspects of doctrine of jeopardy viz. Autrefois convict and Autrefois acquit. Autrefois convict means that, person has been previously convicted in respect of same offence. Autrefois acquit means that, person has been acquitted on a same charge on which he is being prosecuted. Constitution bars double punishment for same offence. Conviction for such offence does not bar for subsequent trial and conviction for another offence and it does not matter, even if some ingredients of these two offences are common.
Section 300 of Cr. PC refers to Sections 220 and 221 of Cr. PC. No doubt it appears that, a person who has been convicted or acquitted of "same offence" cannot be tried again considering aforesaid provisions. Section 220(1) of Cr. PC provides that, if one series of acts is so connected together as to form same transaction, more offences than one are committed by same person, he may be charged with and tried at one trial for every such offence. Section 221(1) of Cr. PC is applicable where it is doubtful what offence has been committed. When a single act or series of acts is of such a nature that, it is doubtful which of several offences the facts which can be proved would constitute, Accused may be charged with having committed all or any of such offences and such charges can be tried together.
When Accused is charged with criminal breach of trust or dishonest appropriation of money or other immovable property, it shall be sufficient to specify gross sum or describe moveable property in respect of which offence is alleged to have been committed, and dates between which the offence is alleged to have been committed, without specifying particular items of exact dates, and charge so framed shall be deemed to be a charge of one offence within meaning of Section 219 of Cr. PC provided that, time included between first and last of such dates shall not exceed one year. A charge shall contain such particulars as to time and place of alleged offence and time period shall not exceed one year. Time period and place of offence is material in such cases. Section 219 Cr. PC provides that, three offences of same kind within a year may be charged together. When a person is accused of more offences than one of the same kind committed within a period of one year, he may be charged with, and tried at one trial for, any number of them not exceeding three for same kind of offence under Section 219(1) of Cr. PC.
It is apparent from Section 212 read with Section 219 of Cr. PC that, there have to be separate trials for different years covering period of more than one year. Same kind of offence is a different thing than "same offence" for purpose of Sections 219, 220 or 300 of Cr. PC. Scheme of law is clear that, separate charges for distinct offences must be framed separately and they cannot be clubbed together for more than one year.
In instant case, offences are not same offence. There can be different trials for same offence, if tried under two different enactments altogether and comprised of two different offences under different Acts/statutes without violation of provisions of Article 20(2) of Constitution or Section 300 of Cr. PC. Though there was one general charge of conspiracy, which was allied in nature, charge was qualified with substantive charge of defalcation of a particular sum from a particular treasury in particular time period. Charge has to be taken in substance for purpose of defalcation from a particular treasury in a particular financial year exceeding allocation made for purpose of animal husbandry on basis of fake vouchers, fake supply orders etc. Sanctions made in Budget were separate for each and every year. Each defalcation would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of Constitution or Section 300 of Cr. PC, Separate trials in such cases is very intendment of law. There was conspiracy hatched which was continuing one and has resulted into various offences. It was joined from time to time by different Accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in Section 212(2) of Cr. PC, there have to be separate trials. Thus, it cannot be said to be a case of double jeopardy.
Modus operandi being same would not make it a single offence, when offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences, there have to be separate trials. There may be a situation where in furtherance of general conspiracy, offences take place in various parts of India and several persons are killed at different times. Each trial has to be separately held and Accused to be punished separately for offence committed in furtherance of conspiracy. Concept is of 'same offence' under Article 20(2) of Constitution and Section 300 of Cr. PC. In case distinct offences are being committed, there has to be independent trial for each of such offence based on such conspiracy and in case of misappropriation as statutorily mandated, there should not be joinder of charges in one trial for more than one year except as provided in Section 219 of Cr. PC. One general conspiracy from 1988 to 1996 has led to various offences as such, there have to be different trials for each of such offence based upon conspiracy in which different persons have participated at different times at different places for completion of offence.
Thus, it is apparent that, it is premature to raise plea of issue of estoppel before evidence is recorded for different sets of accusations of different offences for different periods. In what manner the duty has been carried on for different periods would be question of fact in each case and there is no question of double jeopardy in such a case. There is a delay of 113, 157 and 222 days in filing respective appeals by the CBI. Applications have been filed for condonation of delay on account of departmental, administrative procedures involved in for filing special leave petition. Delay has been sufficiently explained and in view of facts and circumstances of case, gravamen of matter and also divergent views taken by same Judge of High Court in same case vis a vis different Accused persons on same question, its duty of Supreme Court not to throw away petition on ground of delay. Explanation offered by CBI of movement of file so as to condone delay so as to subserve ends of justice, deserves to be accepted. CBI ought to have acted with more circumspection and ought to have followed CBI Manual. Impugned judgments passed by High Court are set aside and trial Court concerned directed to expedite trial.
Tags : Trial Discharge Validity
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