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R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.394 OF 2017

STATE OF JHARKHAND THROUGH SP, CBI   …APPELLANT

VERSUS

LALU PRASAD @ LALU PRASAD YADAV   …RESPONDENT

WITH

CRIMINAL APPEAL NO.393 OF 2017

STATE OF JHARKHAND THROUGH S.P., CBI  …APPELLANT

VERSUS

SAJAL CHAKRABORTY   …RESPONDENT

WITH

CRIMINAL APPEAL NO.395 OF 2017

STATE OF JHARKHAND THROUGH SP, CBI   …APPELLANT

VERSUS

DR. JAGANNATH MISHRA                            …RESPONDENT

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J U D G M E N T

ARUN MISHRA, J.

1. The appeals arise out of three separate judgments and orders of

learned Single Judge of High Court of Jharkhand at Ranchi discharging

three accused persons namely;  Lalu Prasad Yadav,  Sajal  Chakraborty

and Dr. Jagannath Mishra on the ground of their conviction in one of the

criminal  cases arising out of  fodder scam of  erstwhile  State of  Bihar.

Applying the provision under Article 20(2) of the Constitution of India

and  Section  300  of  Code  of  Criminal  Procedure,  1973 (for  short  ‘the

Cr.PC’), the 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 the ground that they have been

convicted in one of the cases for offences involving the same ingredients

with respect to Chaibasa treasury.

2. In the wake of large scale defalcation of public funds, fraudulent

transactions  and  fabrication  of  accounts  in  Animal  Husbandry

Department of State of Bihar popularly known as fodder scam, Central

Bureau  of  Investigation  (for  short,  ‘the  CBI’)  investigation  had  been

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ordered by this Court in State of Bihar & Anr. v. Ranchi Zila Samta Party

&  Anr.  (1996)  3  SCC  682  to  investigate  corruption  in  public

administration,  misconduct  by  the  bureaucracy,  fabrication  of  official

records,  misappropriation  of  public  funds  by an  independent  agency.

This Court directed CBI to do investigation and inform the Chief Justice

of Patna High Court. On the re-orgnisation of the State of Bihar by virtue

of Bihar Re-organisation Act, 2000, States of Bihar and Jharkhand were

formed.  Question arose with respect to the place of  trial  of  cases i.e.

whether in State of Bihar or State of Jharkhand. A Full Bench of High

Court of Patna took the view that none of the 36 cases which were of

Jharkhand to be transferred to Jharkhand. CBI preferred appeals before

this Court as well as Dr. R.K. Rana. Total 64 cases had been registered

relating to  Bihar Fodder Scam. 52 cases involved withdrawal  of  huge

sums of  money from Government treasuries  falling within  Jharkhand

State and in 36 out of 52 cases charge-sheet had been filed by CBI before

the appointed day. This Court opined that the only court which has the

jurisdiction to  try  offences  under  Prevention of  Corruption Act  is  the

Court of Special Judge appointed for areas within which such offences

were committed. This Court in CBI, AHD, Patna v. Braj Bhushan Prasad

& Ors. (2001) 9 SCC 432 has laid down thus :

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“33. For that purpose it is useful to look at Section 3(1) of the PC Act. It empowers the Government to appoint a Special Judge  to  try  two categories  of  offences.  The  first  is,  “any offence punishable under this Act” and the second is,  “any conspiracy  to  commit  or  any  attempt  to  commit  or  any abetment  of  any  of  the  offences  specified”  in  the  first category. So when a court has jurisdiction to try the offence punishable under the PC Act on the basis of the place where such  offence  was  committed,  the  allied  offences  such  as conspiracy, attempt or abetment to commit that offence are only  to  be  linked  with  the  main  offence.  When  the  main offence is committed and is required to be tried, it is rather inconceivable that jurisdiction of the court will be determined on the basis of where the conspiracy or attempt or abetment of such main offence was committed. It is only when the main offence  was  not  committed,  but  only  the  conspiracy  to commit that offence or the attempt or the abetment of it alone was  committed,  then  the  question  would  arise  whether  the Court of the Special Judge within whose area such conspiracy etc. was committed could try the case. For our purpose it is unnecessary  to  consider  that  aspect  because  the  charges proceed  on  the  assumption  that  the  main  offence  was committed.”                                            (Emphasis Supplied)

3. This Court in  Braj Bhushan Prasad (supra) has laid down that so

far  as  offences under section 13(1)(c)  and 13(1)(d)  are  concerned,  the

place where the offences were committed could easily be identified as the

place where the treasury concerned was situate and laid down thus :

“37. Thus,  when it  is  certain where exactly the offence under  Section  13  of  the  PC  Act  was committed it  is  an unnecessary exercise to ponder over the other areas wherein certain allied activities, such as conspiracy or preparation, or even the prefatory or incidental acts were done, including the consequences that ensued.” (Emphasis Supplied)

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“42. Thus, if the PC Act has stipulated any place for trial of  the  offence  under  that  Act  the  provisions  of  the  Code would stand displaced to that extent in regard to the place of trial.  We have, therefore, no doubt that when the offence is under Section 13(1)(  c  ) or Section 13(1)(  d  ) of the PC Act the sole  determinative  factor  regarding  the  court  having jurisdiction is the place where the offence was committed.” (Emphasis Supplied)

4. With respect to adoption of evidence in various cases as evidence

with respect to conspiracy was to be common, this Court has observed in

Braj Bhushan Prasad (supra) thus :

“50. To avoid the confusion and repetition of the exercise, we make it clear that the evidence already recorded in any of the  36  cases  will  be  treated  as  evidence  recorded  by  the proper court having jurisdiction. In other words, the Special Judge  need  not  call  the  witnesses  already  examined  over again for repetition of what has already come on record.”

This Court has clearly observed that the place of trial has to be on

the basis of commission of offence where the defalcation has been made

and not on the basis of place of conspiracy. Submission to the contrary

had been negatived.

5. Subsequently,  prayer  was  made  for  amalgamation  of  six  cases

which were pending before Special  Courts in the State  of  Jharkhand.

Matter was considered by this Court with respect to joint trial of cases

including RC Nos.20A/96 and 64A/96 which were pending before the

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Special Judge at Patna. This Court considered the matter in Lalu Prasad

alias Lalu Prasad Yadav v. State through CBI (A.H.D.), Ranchi, Jharkhand

(2003) 11 SCC 786. It was urged on behalf of Lalu Prasad Yadav, Dr.

Jagannath  Mishra  and  others  that  it  was  a  case  of  only  a  single

conspiracy and therefore there should be amalgamation of trials as per

the provisions contained in section 223 Cr.PC. This Court opined that

charges were not framed at that stage. It is for trial court to decide the

prayer for joint trial. There were large number of accused persons. It was

also observed that main offence was under the PC Act and conspiracy

was an allied offence. This Court laid down thus :

“11.  ….Thus it  has already been held, by a three-Judge Bench of this Court, that the main offences were under the Prevention  of  Corruption  Act. It  has  been  held  that  the offence of conspiracy is an allied offence to the main offence under the Prevention of Corruption Act. The cases are before the Special Judges because the main offences are under the Prevention  of  Corruption  Act.  The  main offence  under  the Prevention of Corruption Act in each case is in respect of the alleged  transaction  in  that  case.  As  conspiracy  is  only  an allied offence, it cannot be said that the alleged overt acts are in the course of the same transaction. We are bound by this decision.  In  any case  we see no reason to take a different view. As it has already been held that the charge of conspiracy is only an allied charge and that the main charges (under the Prevention of Corruption Act) are in respect of separate and distinct acts i.e. monies siphoned out of different treasuries at different times, we fail to see as to how these cases could be amalgamated.”

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“14. Before we part it must be mentioned that it had been complained that the appellants would be forced to hear the same evidence 5/6 times. If the appellants or any of them feel aggrieved by this and if they so desire, they may apply to the Special  Judges  that  evidence  recorded  in  one  case  and documents  marked  as  an  exhibit  in  one  case  be  used  as evidence in other cases also. This would obviate their having to hear the same evidence in 5/6 different cases. We are sure that  if  such  an  application  is  made,  the  same  will  be considered by the Special Judge on its merit, after hearing all the other accused”. (Emphasis Supplied)

This Court had noted the grievance that accused persons would be

forced to hear the same evidence 5-6 times, but ordered that they may

apply to the Special Judges that evidence recorded in one case and the

document marked as an exhibit in one case be used as evidence in other

cases also.

6. Lalu  Prasad  Yadav  was  prosecuted  and  convicted  in  RC

No.20(A)/96  with  respect  to  aforesaid  period  1.4.1994  to  31.1.1995

relating  to  Chaibasa  treasury.  The  charges  had  been  framed  for

commission of offence of criminal conspiracy punishable under section

120B read with  sections  409,  420,  467,  468,  471,  477,  477A of  the

Indian Penal Code, 1860 (for short, ‘the IPC’) and section 13(1)(c) read

with section 13(2) of the Prevention of Corruption Act, 1988 (for short

‘the PC Act’) where defalcation/general conspiracy was alleged between

1988 and  1996 and  included various  treasuries  of  erstwhile  State  of

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Bihar. However, in RC No.20(A)/96 with respect to Chaibasa treasury,

the specific charge was with respect to the period 1.4.1994 to 31.1.1995

for facilitating dishonest and fraudulent withdrawal of Government funds

to  the  tune  of  Rs.37,70,39,743/-.  The  case  RC No.64(A)/96 which is

quashed  relates  to  Deoghar  whereas  the  amount  misappropriated  is

Rs.85  lakhs  as  against  actual  allotment  of  funds  for  district  of

Rs.4,73,400/-  with  the  help  of  250  vouchers  and  17  fake  allotment

letters. Misappropriation is alleged for the period 1991 to 1994. There are

38 accused persons and one of them is Lalu Prasad Yadav.  

7. In the case against Dr. Jagannath Mishra he has been convicted in

RC  No.20(A)/96  with  respect  to  Chaibasa  treasury  in  respect  of

misappropriation of Rs.37.70 crores for the period 1994-95 whereas the

prosecution has been quashed with respect to RC No.38(A)/96 relating to

misappropriation  of  Rs.3.76  crores  from  Dumka  treasury  as  against

actual allotment of Rs.1.5 lakhs with the help of 96 fake vouchers in the

financial year 1995-96. In case RC No.47(A)/96 misappropriation alleged

is that of Rs.139.35 crores against actual allotment of Rs.1,97,90,000 by

fake vouchers numbering 4845,502 fake allotment orders and 2367 fake

supply orders in financial years 1991 to 1995. RC No.68(A)/96 relates to

Chaibasa treasury regarding misappropriation of Rs.37.62 crores against

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actual allotment of Rs.7.10 lakhs with the help of 495 fake vouchers, 67

fake allotment letters and 3870 fake supply orders during the financial

year 1992-93.

8. Sajal  Chakraborty  had  been  convicted  by  Trial  Court  in  RC

No.51(A)/96  relating  to  Chaibasa  treasury  regarding  Rs.39.92  crores

misappropriation against actual allotment of Rs.4,09,750/- with the help

of 580 vouchers, 4789 fake supply orders for the financial year 1993-94

on  14.7.2008  but  acquitted  by  the  High  Court  in  appeal.   The

prosecution  has  been  quashed  vis  a  vis Sajal  Chakraborty  in  RC

No.20(A)/96 relating to Chaibasa Treasury and RC No.68(A)/96 relating

to Chaibasa Treasury for misappropriation of Rs.37.62 crores during the

financial year 1992-93.

9. It was submitted on behalf of CBI that though the same learned

Judge of the High Court has quashed the proceedings in the aforesaid

cases  with  respect  to  Lalu  Prasad Yadav,  Dr.  Jagannath  Mishra  and

Sajal Chakraborty owing to their conviction in one of the cases, however,

with respect to accused Dr. R.K. Rana, the same Judge in criminal W.P.

No.226/2011 has declined to quash the criminal prosecution in pending

six  other  cases  owing  to  his  conviction  in  RC No.22A/96.  Prayer  for

quashing of criminal prosecution in RC Nos.20A/96, 33A/96, 38A/96,

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47A/96, 64A/96 and 68A/96 had been declined but the same very cases

have been quashed by taking a contrary view in the impugned judgment

and order.

10. It was submitted by Shri Ranjit Kumar, learned Solicitor General

appearing for CBI that as the offences relate to different treasuries for

different  financial  years,  for  different  amounts  running  into  several

crores with the help of  different fake allotment letters,  supply orders,

different  falsification  of  books  of  accounts,  different  suppliers,  Article

20(2) of Constitution of India is not attracted as the offences cannot be

said to be the same. Similarly the provisions of section 300 Cr.PC are not

attracted. They are different offences and transactions. Reliance has been

placed upon section 212(2) of the Cr.PC so as to contend that the period

of charge for offence of misappropriation shall not exceed one year. There

has to be different trials for different periods. Reference has also been

made to sections 219, 220 and 221 of Cr.PC. There is difference between

the  same kind  and  the  same offence.  In  different  treasuries,  distinct

offences have been committed though of same kind by different sets of

accused persons. There have to be separate charges for distinct offences

and, therefore separate trials are required to be held. Principle of issue

estoppel would not arise as parties are different, duties were different for

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different times. Judgment of conviction has also been placed on record

by CBI.

11. Prayer  has  also  been  made  to  condone  the  delay  in  filing  the

appeals  in  this  Court  for  which  reliance  has  been  placed  upon  the

affidavits/explanation which has been offered. Thus, it was urged that

sufficient ground has been made out so as to condone the delay.

12. It was submitted by Shri Ram Jethmalani, learned senior counsel

appearing on behalf of respondent Lalu Prasad Yadav that the delay has

not been satisfactorily explained. There is no sufficient cause so as to

condone the delay. CBI has acted in flagrant violation of the provisions

contained in CBI Manual. Thus, no case is made out so as to condone

the delay.

13. It was contended by Shri Surendra Singh, learned senior counsel

on behalf of Lalu Prasad Yadav that the charge for conspiracy against

Lalu Prasad Yadav with respect  to cases at  Chaibasa,  Patna,  Ranchi,

Bhagalpur  and  other  places  of  Bihar,  Calcutta  and  Delhi,  was  not

specific to the period of  defalcation. The charges were general  for the

period from 1988 to 1996. Thus, it was submitted that evidence has been

adduced with respect to the general conspiracy between 1988 and 1996

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which  included  the  Treasuries  in  question  in  the  cases  where

prosecution has been quashed. It was not the case put up under section

313 Cr.PC that there was separate conspiracy for the period 1.4.1994 to

30.1.1995.  In  RC  No.64(A)/96  similar  charges  for  conspiracy  for  the

years 1988 to 1996 at Deoghar, Dumka, Ranchi, Patna and other places

had been framed. In pursuance thereof an amount of Rs.89,27,164.15/-

has  been  withdrawn  from  Deogarh  Treasury.  As  the  conspiracy  for

Chaibasa  and  Deogarh  is  the  same  the  evidence  has  already  been

adduced in the case relating to Chaibasa treasury. Thus for one and the

same conspiracy  respondent  Lalu  Prasad  Yadav  cannot  be  tried  over

again  in  view  of  Article  20(2)  and  section  300  Cr.PC.  It  was  further

contended that the respondent is being prosecuted in two separate cases

arising out of the Chaibasa Treasury namely R.C. No.68 (A)/1996 and

R.C. No.20 (A)/1996. The first is when the money was siphoned out of

the Treasury in 1992-93 and the second is for the period from 1.4.1994

to 30.1.1995 when the money was withdrawn from the Treasury. In other

words, it is the prosecution case itself that between 1992-1995 money

was being regularly siphoned out of the Chaibasa Treasury. The charge

for conspiracy also states that the conspiracy was from 1990-1997. This

is  further  proof  of  the  fact  that  the  conspiracy  referred  to  by  the

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prosecution for the Treasuries of Chaibasa and Deogarh is one and the

same conspiracy and not different or distinct conspiracies.  Counsel has

also attracted our attention to the charges pertaining to the Treasuries of

Dumka (R.C. 38 (A)/1996) and Doranda (R.S. 47A)/1996.  The charges

framed  for  withdrawal  of  money  from  these  two  treasuries  is  from

1988-1996 and 1990-1996 respectively and the period of conspiracy has

been shown from 1990-1997 and 1991-1996 respectively.

14. It was also urged by Shri Surendra Singh, learned senior counsel

that as per prosecution itself, there was a single conspiracy that started

in the year 1988 and continued till 1996. The result of investigation in

RC 20(A)/96 and RC 64(A)/96 conclusively proves that there was a single

conspiracy  with  respect  to  defalcation  at  various  Treasuries.  Once

accused has been punished for the conspiracy for the period 1988 to

1996 he cannot be punished again for the same offence. Without much

ado and more evidence, the trial of the accused for offence under section

120B IPC is barred by Article 20(2) and section 300 Cr.PC. It was also

urged that  there  was a core  group of  20 common accused in all  the

prosecutions i.e. nine politicians and eleven senior administrative officers

who allegedly hatched the main conspiracy to siphon off the funds from

treasuries  earmarked  for  Animal  Husbandry  Department  of  erstwhile

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State of Bihar. The  modus operandi employed by the conspirators was

identical for all the treasuries and funds were siphoned off as and when

an  opportunity  occurred.  Since  there  is  no  evidence  that  separate

conspiracies  were  hatched  to  defalcate  the  funds  from  different

treasuries  at  different  points  of  time  second  prosecution  is  not

permissible. Reference has been made to  Laloo Prasad @ Laloo Prasad

Yadav v. State of  Jharkhand (2002) 9 SCC 372 so as to contend that

there was single general conspiracy, the offences of withdrawal of money

from  different  treasuries  including  the  treasuries  of  Chaibasa  and

Deogarh were merely offshoots of the main conspiracy as observed by

this  Court  while  granting  bail  to  Lalu Prasad Yadav.   Learned senior

counsel has also relied upon decision in Mohd. Hussain Umar Kochra etc.

v. K.S. Dalipsinghji & Anr. AIR 1970 SC 45, Srichand K. Khetwani v. The

State of Maharashtra AIR 1967 SC 450; and S. Swamirathnam v. State of

Madras AIR  1957 SC 340 so as  to  point  out  that  the  case  of  single

general  conspiracy  is  opposed  to  a  number  of  separate  conspiracies.

Since there was a single conspiracy in the instant case, accused cannot

be  tried  and  punished  for  defalcations  made  in  different  periods

separately. So far as treasury payment is concerned there is no evidence

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against  Lalu  Prasad  Yadav.  Besides,  it  is  a  case  where  there  is  no

evidence against the accused.

15. It was submitted by Shri Adit S. Pujari, learned counsel appearing

on behalf of Sajal Chakraborty, that the main case set up against the

respondent is that he did not take any steps to find out the cause of

heavy withdrawal of Rs.50.56 lakhs on a single day by co-accused Dr.

B.N. Sharma. He was Deputy Commissioner, Chaibasa from September,

1992  to  July,  1995.  He  did  not  exercise  control  to  prevent

misappropriation  of  Government  funds  from  Chaibasa  treasury.  The

formal charge is identical in RC Nos.51(A), 20(A) and 68(A). It was further

alleged by the prosecution that the accused had developed a nexus with

co-accused persons and had obtained from co-accused as a reward for

services rendered – a laptop and two printers for himself. The accused

Sajal Chakraborty was convicted by the trial court for certain offences

under sections 409, 420, 465, 467, 468, 471, 477A IPC. His conviction

has  been  ultimately  set  aside  by  the  High  Court  of  Jharkhand  vide

judgment and order dated 3.8.2012 in Criminal Appeal No.979 of 2009

in which it has been held that there was no mechanism with the Deputy

Commissioner  to  check  illegal  withdrawal  from  treasury.  Copy  of

allotment letter of  funds to different departments was not sent to the

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petitioner.  There  was  no  other  evidence  direct  or  circumstantial  to

establish that the accused did certain acts for facilitating other accused

to draw money illegally. There is no evidence of nexus or association vis

a  vis the  other  accused.  No  one  had  seen  installation  of  laptop  and

computer  in  the  residence  of  the  accused  and  so  the  allegation  of

receiving  the  same  was  also  discarded.  Learned  counsel  has  placed

reliance upon T.T. Anthony v. State of Kerala (2001) 6 SCC 181, Amitbhai

Anilchandra Shah v. C.B.I. (2013) 6 SCC 348.  He has also referred to

section 212 Cr.PC.  FIR relating  to  Chaibasa is  for  same transactions

though for different financial years but for the bar under section 212(2)

Cr.PC,  it  would  have  constituted  one  offence,  as  such section  300(1)

would apply. In similar circumstances in Emperor v. Jhabbar Mull Lakkar

1922 ILR 924, Sidh Nath Awasthi v. Emperor 1920 ILR 17, prosecution in

subsequent cases had been quashed. Section 220(1) Cr.PC would apply

to the present case. In fact series of acts formed the same transaction.

Thus there cannot be subsequent trial. Ingredients of offence in all the 3

cases are the same as such there cannot be different trials. It was also

submitted that the principle of issue estoppel is attracted. Same issues

cannot  be  agitated  afresh  in  the  cases  which  are  settled  by  prior

litigation.  The  issue  of  estoppel  stands  merged  in  the  principles  of

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Autrefois  acquit and  Autrefois  convict enshrined  in  Article  20(2)  and

section 300 Cr.PC.

16. The main question for consideration is whether in view of Article

20(2)  of  Constitution  of  India  and  section 300  Cr.PC,  it  is  a  case  of

prosecution and punishment for the “same offence” more than once. No

doubt about it that the general conspiracy had been hatched as alleged

for the period 1988 to 1996 but defalcations are from different treasuries

for different financial years by exceeding the amount of each year which

was allocated for Animal Husbandry Department for each of the district

for the purpose of animal husbandry. The amount involved is different,

fake  vouchers,  fake  allotment  letters,  fake  supply  orders  had  been

prepared with the help of different sets of accused persons. Though there

is  one  general  conspiracy,  offences  are  distinct  for  different  periods.

Question arises  whether  there  is  one  general  conspiracy  pursuant  to

which various defalcations of different amounts have been made running

into several years from different treasuries, by different sets of accused

persons. Whether there could have been only one trial or more than one.

Whether  legal  requirement  is  for  one trial  or  more than one in such

cases. Article 20(2) of the Constitution is extracted hereunder :

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“20. (2) No person shall be prosecuted and punished for the same offence more than once.”

17. Article 20(2) says that no person shall be prosecuted and punished

for the same offence more than once. This is called the doctrine of double

jeopardy. The objective of the Article is to avoid harassment, which may

be  caused  by  successive  criminal  proceedings,  where  the  person  has

committed only one crime. There is a law maxim related to this,  nemo

debet bis vexari. This means that no man shall be put twice in peril for

the  same  offence.  There  are  two  aspects  of  doctrine  of  jeopardy  viz.

Autrefois convict and  Autrefois acquit.  Autrefois convict means that the

person has been previously  convicted in  respect  of  the  same offence.

Autrefois acquit means that the person has been acquitted on a same

charge  on  which  he  is  being  prosecuted.  Constitution  bars  double

punishment for the same offence. The 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 Cr.P.C. is extracted hereunder :  

“Section 300. Person once convicted or acquitted not to be tried for same offence.--

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(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.

(2) A person acquitted  or  convicted  of  any offence  may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing  consequences  which,  together  with  such  act, constituted  a  different  offence  from  that  of  which  he  was convicted,  may be afterwards tried for such last-  mentioned offence,  if  the consequences had not happened,  or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again  for  the  same  offence  except  with  the  consent  of  the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, (10 of 1897) or of section 188 of this Code.”  

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is  clear  that  separate  charges  for  distinct  offences  must  be  framed

separately and they cannot be clubbed together for more than one year.

24. This Court in Natwar Lal Sakar Lal Mody v. The State of Bombay 26

(1984)  DLT  64  considered  the  question  of  joint  trial  of  persons  and

offences for conspiracy as per provisions contained in section 239(d) of

the old Cr.PC. This Court has laid down that separate trial is the rule

and joint trial is an exception. Joint trial would be an irregular exercise

of discretion if a court allows innumerable offences spread over a long

period of time and committed by a large number of persons to be under

the protecting wings of an all-embracing conspiracy, and if each or some

of  the  offences  can  be  separately  tried,  it  would  be  appropriate  and

lawful. Joint trial prolongs the trial and causes waste of judicial time and

complicates the matter which might otherwise be simple, and it would

confuse the accused and cause prejudice to them. Court should not be

overzealous to provide a cover of  conspiracy for a number of  offences

unless it is satisfied that the persons who committed separate offences

were parties to the conspiracy and committed the separate acts pursuant

to conspiracy. This Court has laid down thus :

“11.  This discussion leads us to the following legal position. Separate trial is the rule and joint trial is an exception. While Section 239 of the Code of Criminal Procedure allows a joint

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trial of person and offences within defined limits, it is within the discretion of the Court to permit such a joint trial or not, having regard  to  the  circumstances  of  each case. It  would certainly  be  an  irregular  exercise  of  discretion  if  a  Court allows an innumerable number of offences spread over a long period of time and committed by a large number of persons under the protecting wing of all-embracing conspiracy, if each or some of the offences can legitimately and properly form the subject-matter of a separate trial; such a joint trial would undoubtedly  prolong  the  trial  and  would  be  a  cause  of unnecessary  waste  of  judicial  time.  It  would  complicate matters which might otherwise be simple; it would confuse accused and cause prejudice to them, for more often than not accused who have taken part  in one of the minor offences might have not only to undergo the long strain of protracted trial, but there might also be the likelihood of the impact of the  evidence  adduced  in  respect  of  other  accused  on  the evidence adduced against him working to his detriment. Nor can it be said that such an omnibus charge or charges would always  be  in  favour  of  the  prosecution  for  the  confusion introduced in the charges and consequently in the evidence may ultimately benefit some of the accused, as a clear case against one or other of the accused may be complicated or confused by the attempt to put it in a proper place in a larger setting. A Court should not be overzealous to provide a cover of  conspiracy for  a number of offences  unless it  is  clearly satisfied on the material placed before it that there is evidence to prove prima facie     that the persons who committed separate offences were parties to the conspiracy and they committed the separate acts attributed to them pursuant to the object of the said conspiracy.” (Emphasis Supplied)

25. This Court in  Ranchhod Lal v. State of Madhya Pradesh AIR 1965

SC 1248 has also considered the question of joint trial in the case of

criminal breach of trust. It has been observed that normal rule is that

there should be a charge for each distinct offence. Court is authorized to

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lump up the various items with respect to which criminal breach of trust

was committed and to mention the total amount misappropriated within

a year in the charge.  When so done, the charge is deemed to be the

charge of one offence. This Court has laid down that a separate trial with

respect to each distinct offence of criminal breach of trust with respect to

an individual item is the correct mode of proceeding with the trial of an

offence of criminal breach of trust. This Court has laid down thus :

“(14.) Section 222, Cr. P.C. reads : "(1) The charge shall contain such particulars as to the time and  place  of  the  alleged  offence,  and  the  person  (if  any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the  offence  is  alleged  to  have  been  committed,  without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of S. 234:      Provided that the time included between the first and last of such dates shall not exceed one year." Sub-section (2) is an exception to meet a certain contingency and is not the normal rule with respect of framing of a charge in cases of criminal breach of trust. The normal rule is that there should be a charge for each distinct offence as provided in S. 233 of the Code. S. 222 mentions what the contents of the charge should be. It is only when it may not be possible to specify  exactly  particular  items  with  respect  to  which criminal breach of trust took place or the exact date on which the individual items were misappropriated or in some similar contingency,  that  the  Court  is  authorised  to  lump  up  the

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various items with respect to which criminal breach of trust was  committed  and  to  mention  the  total  amount misappropriated with a year in the charge. When so done, the charge is deemed to be the charge of one offence. If several distinct items with respect to which criminal breach of trust has been committed are not so lumped together, no illegality is committed in the trial of those offences. In fact a separate trial with respect to each distinct offence of criminal breach of trust with respect to an individual item is the correct mode of proceeding with the trial of an offence of criminal breach of trust. (15.) Learned counsel for the appellant also relied on S. 234, Code of Criminal Procedure and urged that three offences of criminal breach of trust could have been tried at one trial as sec.  234  provides  that  when  a  person  is  accused  of  more offences  than  one  of  the  same  kind  committed  within  the space  of  twelve  months  from  the  first  to  the  last  of  such offences,  whether in respect of  the same person or not,  he may be charged with, and tried at one trial for any number of them not exceeding three. This again is an enabling provision and is an exception to sec. 233, Code of Criminal Procedure If  each  of  the  several  offences  is  tried  separately, there  is nothing illegal  about  it.  It  may also be mentioned that  the total  number  of  items  charged  in  the  four  cases  exceeded three. (16.) Lastly, reference was made, on behalf of the appellant to sec. 235, Code of Criminal Procedure and it was urged that all these  offences  were  committed  in  the  course  of  the  same transaction, and therefore, they should have been tried at one trial.  Assuming, without deciding, that these offences could be said to have been committed in the course of the same transaction,  the  separate  trial  of  the  appellant  for  certain specific offences is not illegal. This section too is an enabling section.”

26. In  R. v.  Griffith 1965 (2)  AER 448 it  has been laid down that  a

conspiracy should be tried separately to substantive counts. The Court of

Appeal in England has laid down thus :

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“9.  The practice  of  adding what  may be  called a  rolled  up conspiracy  charge  to  a  number  of  counts  of  substantive offences has become common.  We express the very strong hope that this practice will now cease and that the courts will never again have to struggle with this type of case, where it becomes almost impossible to explain to a jury that evidence inadmissible against the accused on the substantive count may be admissible against him on the conspiracy count once he is shown to be a conspirator.  We do no believe that most juries can ever really understand the subtleties of the situation.  In our judgment, except in simple cases, a conspiracy count (if one is needed at all) should be tried separately to substantive counts.”

27. In State of A P v. Cheemalapti Ganeswara Rao & Anr. (1964) 3 SCR

297 this Court dealt with misjoinder of parties under section 239 of the

old Cr.P.C. This Court with respect to ‘same transaction’ has observed

thus :

“10. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined.  We have not come across a single decision of any Court which the Legislature has embarked upon the difficult task of defining the expression.  But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction.  It is,  however, not necessary that  every one of  these elements should co-exist for a transaction to be regarded as the same.”

Further, it was held that:

“Where, however, several  offences are alleged to have been committed  by  several  accused  persons  it  may  be  more reasonable to follow the normal rule of separate trials.  But

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here,  again,  if  those  offences  are  alleged  not  be  wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves.”  (Emphasis supplied)    

When  several  offences  are  alleged  to  have  been  committed  by

several accused persons this Court has laid down that normal rule is of

separate trials.

28. In Sardar Sardul Singh Caveeshar v. State of Maharashtra (1964) 2

SCR 378,  this  Court  considered the question of  conspiracy in a case

where  the  accused  had  first  defrauded  one  Jupiter  company  and

thereafter  another  company called  Empire.  Argument  was  raised  that

once having been convicted of conspiracy qua the Jupiter case, he could

not be convicted qua company called Empire. This Court relying upon

judgment in State of Bombay v. S.L. Apte (1961) 3 SCR 107 has laid down

thus :

“In the present case, applying the test laid down by this Court,  the  two  conspiracies  are  not  the  same  offence:  the Jupiter  conspiracy  came  to  an  end  when  its  funds  were misappropriated.   The  Empire  conspiracy  was  hatched subsequently,  though  its  object  had  an  intimate  connection with the Jupiter in that the fraud of the Empire was conceived and executed to cover up the fraud of the Jupiter.  The two conspiracies are distinct offences.  It cannot even be said that some of the ingredients of both the conspiracies are the same. The  facts  constituting  the  Jupiter  conspiracy  are  not  the

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ingredients of the offence of the Empire conspiracy, but only afford  a  motive  for  the  latter  offence.   Motive  is  not  an ingredient of an offence.  The proof of motive helps a Court in coming  to  a  correct  conclusion  when  there  is  no  direct evidence.   Where  there  is  direct  offence  for  implicating  an accused in an offence, the absence of proof of motive is not material.   The  ingredients  of  both  the  offences  are  totally different  and they do not form the same offence within the meaning of Art.20(2) of the Constitution and, therefore, that Article has no relevance to the present case.”  

29. In  Gopal Prasad Sinha v. State of Bihar (1970) 2 SCC 905 offence

was  committed  between  two  different  periods  when  the  accused  was

working as Cashier. On the basis of acquittal in the first offence, plea of

issue estoppel was raised for the second period during trial. This Court

had rejected the submission thus :

“7.  In  our  opinion,  the  High  Court  came  to  the  correct conclusion.   The  basic  principle  underlying  the  rule  of issue-estoppel is that the same issue of fact and law must have been determined in the previous litigation.  The question then arises: Was it the same issue of fact which was determined in the earlier case?  A person may  be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this case it was found that the appellant had never been appointed as a cashier.  He was a temporary senior accounts  clerk  who was  alleged to  be  doing the  work  of  a cashier.   If  there  is  any  likelihood  of  facts  or  conditions changing during the two periods which are under consideration then it is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact.  It seems  to  us  that  the  later  finding  must  necessarily  be  in contradiction of the previous determination.  There can be no such contradiction  if  the  periods  are  different and the  facts

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relating  to  the  carrying  on  of  the  duties  of  a  cashier  are different.”(Emphasis supplied)

30. It is pertinent to mention here that this Court in this very case has

negatived the contention of joint trials and amalgamation of trials in the

aforesaid decisions. When parties are different, issue of estoppel would

not arise. The substantive offence is that of defalcation. Conspiracy was

an allied offence to the substantive offence.

31. Section  218  deals  with  separate  charges  for  distinct  offences.

Section 219 quoted above, provides that three offences of the same kind

can  be  clubbed  in  one  trial  committed  within  one  year.  Section  220

speaks of trial for more than one offence if it is the same transaction. In

the instant case it cannot be said that defalcation is same transaction as

the transactions are in different treasuries for different years, different

amounts, different allotment letters, supply orders and suppliers. Thus

the provision of section 221 is not attracted in the instant case. There are

different  sets  of  accused  persons  in  different  cases  with  respect  to

defalcation.  

32. There  may  be  a  conspiracy  in  general  one  and  a  separate  one.

There  may  be  larger  conspiracy  and  smaller  conspiracy  which  may

develop in successive stages involving different accused persons. In the

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instant  case  defalcations  have  been  made  in  various  years  by

combination of different accused persons. Thus, there can be separate

trials on the basis of law laid down by this Court in Ram Lal Narang v.

State (Delhi Administration) (1979) 2 SCC 322 wherein this Court has laid

down thus :

“11.   ….The offences alleged in the first  case were Section 120-B read with Section 420 and Section 406, Indian Penal Code,  while  the  offences  alleged  in  the  second  case  were Section 120-B read with Section 411, Indian Penal Code and Section  25  of  the  Antiquities  and  Art  Treasures  Act, 1972……….  We  are  clear,  in  the  present  case,  that  the conspiracies  which  are  the  subject-matter  of  the  two  cases cannot be said to be identical though the conspiracy which is the subject-matter of  the first  case may, perhaps,  be said to have  turned  out  to  be  part  of  the  conspiracy  which  is  the subject-matter  of  the second case.  As we mentioned earlier, when investigation commenced in FIR. R.C. 4 of 1976, apart from  the  circumstance  that  the  property  involved  was  the same,  the  link  between  the  conspiracy  to  cheat  and  to misappropriate  and  the  conspiracy  to  dispose  of  the  stolen property was not known.”

33. In the instant case, offences are not the same offence. There can be

different  trials  for  the  same  offence  if  tried  under  two  different

enactments  altogether  and  comprised  of  two  different  offences  under

different Acts/statutes without violation of the provisions of Article 20(2)

or  Section  300  Cr.PC.   This  Court  has  decided  the  issue  in  various

cases:-

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(a) In Kharkan & Ors.  v. The State of U.P. (1964) 4 SCR 673 this Court has laid down thus :

“Even  if  the  two  incidents  could  be viewed as connected so as to form parts of one transaction it is obvious that the offences were distinct  and  required  different  charges.  The assault on Tikam in fulfilment of the common object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it. The new common object to beat  Puran  was  formed  at  a  time  when  the common object  in respect  of  Tikam had been fully worked out and even if the two incidents could be taken to be connected by unity of time and place (which they were not),  the offences were distinct and required separate charges. The learned Sessions Judge was right in breaking up the single charge framed by the magistrate and ordering separate trials.  In this  view the prior acquittal  cannot create a bar  in respect of the conviction  herein  reached.”  (Emphasis Supplied)

(b) In Maqbool Hussain v. The State of Bombay (1953) SCR 730 this Court has laid down thus :

“Appellant  had  smuggled  gold  into  India  and was booked u/s 167(8) of the Sea Customs Act, 1878 and subsequently  when no one  came to claim the gold, he was charged 11/8 8 0f FERA. He challenged this  as  violation  of  Art.  20(2). The Court analysed the scope of Art. 20(2) and held  that  the  “prosecution”  must  be  before  a court  of  law or  judicial  tribunal.  The  plea  of double  jeopardy was discarded as  it  was held that the Customs authorities were not a judicial tribunal or court. For double jeopardy, the test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient

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to justify a conviction of the other and not that the  facts  relied  on by the  prosecution  are  the same in the two trials.”

(c)  In  State  of  Bombay  v. S.L.  Apte (1961)  3  SCR 107  a Constitution Bench of this Court has laid down as to the issue regarding conviction under section 409 IPC and section 105 of  Insurance  Act.  The  submission  of  double  jeopardy  was repelled with respect to offences under section 11 of IPC and section 105 of Insurance Act.  It  was held that the offences under both the Acts are distinct due to their ingredients. So as to  constitute  double  jeopardy  two  offences  should  be identical.  

(d)  In  T.S.  Baliah  v.  T.S.  Rengachari (1969)  3  SCR  65, appellant was sought to be prosecuted under section 177 IPC and section 52 of Income Tax Act, 1922 for furnishing wrong information in his tax returns. On consideration of section 26 of General Clauses Act, this Court held that the provision did not provide a bar on trial and conviction for the same offence under  more  than  one  enactment  in  case  ingredients  of offences are distinct.  It  only barred double punishment and not double conviction.

(e) In V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467 the question arose whether acquittal of an accused charged with having committed the offence punishable under section 111 read with section 135 of Customs Act,  1969 created a legal bar to the accused, subsequently being prosecuted under section 85 of the Gold (Control) Act, 1968. It was held that the ingredients of offence under each of the enactments were quite  different.  The  Court  applied  the  test  developed  in Maqbool  Hussain  (supra)  and held  the  two offences  to  be different in scope and contents of their ingredients. The Court also relied upon S.L. Apte’s decision (supra) and observed that what  is  necessary  is  to  analyse  the  ingredients  of  the  two offences and not the allegations made in two complaints.  No doubt  about  it  that  there  can  be  separate  offences  but ingredients would remain same under penal provision but that would also not make out a case of violating the provisions of Article 20(2) of the Constitution and Section 300 Cr.P.C.  

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separate conspiracy. Charges being similar in the cases which have been

quashed. No case is made out for trial under section 120-B. Same and

identical circumstances are being relied upon by the prosecution.  There

are no new or additional circumstances in the cases which have been

quashed.  The conspiracies referred to are one and the same and not

different conspiracies. Thus, in view of the trial which had concluded,

there cannot be further trial on the charge of conspiracy.  

35. We are unable to accept the submissions raised by learned senior

counsel. Though there was one general charge of conspiracy, which was

allied in nature, the charge was qualified with the substantive charge of

defalcation of a particular sum from a particular treasury in particular

time period. The charge has to be taken in substance for the purpose of

defalcation  from  a  particular  treasury  in  a  particular  financial  year

exceeding the allocation made for the purpose of animal husbandry on

the basis of fake vouchers, fake supply orders etc. The sanctions made in

Budget were separate for each and every year. This Court has already

dealt with this matter when the prayers for amalgamation and joint trial

had been made and in view of the position of law and various provisions

discussed above, we are of  the opinion that separate  trials  which are

being made are in accordance with provisions of law otherwise it would

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have  prejudiced  the  accused  persons  considering  the  different

defalcations  from different  treasuries  at  different  times  with  different

documents. Whatever could be combined has already been done. Each

defalcation  would  constitute  an  independent  offence.  Thus,  by  no

stretch,  it  can  be  held  to  be  in  violation  of  Article  20(2)  of  the

Constitution or Section 300 Cr.P.C. Separate trials in such cases is the

very intendment of  law.  There is no room to raise such a grievance.

Though evidence of general conspiracy has been adduced in cases which

have been concluded, it may be common to all the cases but at the same

time  offences  are  different  at  different  places,  by  different  accused

persons.  As  and  when  a  separate  offence  is  committed,  it  becomes

punishable and the substantive charge which has to be taken is that of

the offence under the P.C. Act etc.  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), obviously,

there have to be separate trials. Thus it cannot be said to be a case of

double jeopardy at all. It cannot be said that for the same offence the

accused persons are being tried again.  

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36. Learned senior counsel has relied upon the decision of this Court

in  S.  Swamirathnam (supra)  in  which the charge disclosed one single

conspiracy,  although  spread  over  several  years.  There  was  only  one

object of the conspiracy, and that was cheating members of the public.

The fact that in the course of years others joined the conspiracy or that

several incidents of cheating took place in pursuance of the conspiracy,

does not change the conspiracy and does not split up a single conspiracy

into several conspiracies. The accused persons raised the submission as

to misjoinder of the charges. This Court has dealt with the matter thus :

“2.  Both  the  courts  below,  relying  on  the  oral  and documentary evidence in the case, held it as a fact that there had  been  a  conspiracy  during  the  years  1945-48  to  cheat members of the public between some of the accused and the approvers  Ramaswami  Mudaliar  and  Vellayam  Pillai examined  as  P.  Ws.  91  and  61  respectively.  The  method adopted for cheating was to persuade such members of the public,  as  could be persuaded,  to  part  with their  money to purchase counterfeit  Rs. 5 currency notes at half  their face value and after having obtained their money to decamp with it. When a member of the public handed over his money, at a certain stage, one of the conspirators pretending to be a Police Officer  would  arrest  the  man  who had  the  box containing their money and take him away with the box. The victim was thus  deprived  of  his  money  without  even  having  a  single counterfeit currency note in his possession in exchange of the genuine money paid by him. We have scrutinized with care the judgments of the Sessions Judge and the learned Judge of the  High  Court  and  find  that  they  were  amply  justified, having regard to the state of the evidence on the record, in coming  to  the  conclusion  that  the  case  of  the  prosecution concerning the existence of the conspiracy as charged to cheat

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the accused persons. There was no misjoinder of the charges. On facts

the case has no application and cannot be said to be an authority on

Article 20 of the Constitution and section 300 Cr.PC.

37. In  Srichand K. Khetwani’s case  (supra), accused were tried for an

offence  punishable  under  section  120-B  read  with  section  409  and

section  5(2)  read  with  section  5(1)(d)  of  the  P.C.  Act.  They  were  all

convicted by the trial court. The conviction of the appellants was upheld.

The prosecution case was that in pursuance of the conspiracy, a number

of licences in the name of  several companies which had no existence

were prepared, some of them were actually issued and that two of those

licences issued were in the name of M.L. Trading Co., Bombay and were

delivered to  appellant  by Prabhakar Karmik.  The Court  held that  the

appellant received the licences issued in the name of the fictitious firm,

therefore the appellant was a member of the conspiracy with which he

was charged. Charge was framed for commission of offence punishable

under section 120-B IPC read with section 5(2) of PC Act. The charge

framed described the conspiracy to be agreeing of the various persons,

including the persons not put on trial, to do or cause to be done, illegal

acts. The charge of conspiracy was not that the conspiracy was entered

into with each bogus individual firm for the benefit of that firm alone in

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connection with the issue of licences to that particular firm. The charge

was that out of the profits made from acts done in furtherance of the

conspiracy, all the persons in the conspiracy were to benefit. This Court

observed that the conspiracy was a general conspiracy to keep on issuing

licence in the names of fictitious firms and to share the benefits arising

out of those licences when no real independent person was the licensee.

This  Court  held that  it  was not  a  case of  conspiracy  with  respect  to

licences issued to one fictitious company. This Court has laid down thus:

“The finding that the various firms to whom licences were issued were fictitious is not questioned. The conspiracy was a general conspiracy to keep on issuing licences in the names of fictitious firms and to share the benefits arising out of those licences when no real independent person was the licensee. The various members of the conspiracy other than the two public servants must have joined with the full knowledge of the modus operandi of the conspiracy and with the intention and object of sharing the profits arising out of the acts of the conspirators. We do not therefore see that the mere fact that licences  were  issued  in  the  names  of  eight  different companies make out the case against the appellant and the other conspirators to be a case of eight different conspiracies each  with  respect  to  the  licences  issued  to  one  particular fictitious company.”

It is apparent that the case is quite distinguishable. In the instant

case different accused persons exist with the help of whom amount has

been withdrawn in different years. It is not a case that only a few persons

had benefited each and every year, when the facts are juxtaposed. Thus,

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it would be a case of different offences. The decision has no application

and this Court was not concerned with the provisions of Article 20 or

section  300  Cr.PC  and  other  provisions  relating  to  separate  trial

contained in the Cr.P.C.

38. Another decision relied upon by learned senior counsel is  Mohd.

Hussain Umar Kochra etc. v. K.S. Dalipsinghji & Anr. AIR 1970 SC 45.

The facts indicate that 40 accused persons were at Bombay and other

places  from 1.11.1956  to  2.2.1959  and  were  parties  to  a  continuing

criminal  conspiracy,  to  acquire  possession  of,  carry,  remove  deposit

harbor, keep concealed and deal in gold and knowingly to be concerned

in fraudulent evasion of duty chargeable on gold and of the prohibition

and  restriction  applicable  thereto  and  committed  an  offence  under

section 120B IPC read with section 167 (81) of Sea Customs Act, 1878.

On other  counts  the  accused persons  were  charged  individually  with

offences punishable under section 167. The scheme was that necessary

finances would be arranged, remittances to foreign countries would be

made through Murad, gold would be sent by air from foreign countries to

Bombay, Delhi, Calcutta and other airports and the smuggled gold would

be sold in India. There were several transactions of smuggling. In 1957,

other  accused  persons  joined  the  conspiracy.  From  February,  1958,

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with  each  other  each  combination  constitutes  a  separate conspiracy. The common intention of the conspirators then is to  work  for  the  furtherance  of  the  common  design  of  his group  only.  The  cases  illustrate  the  distinction  between  a single  general  conspiracy  and  a  number  of  unrelated conspiracies.  In  S.K.  Khetwani  v. State  of  Maharashtra ,S. Swaminatham  v.  State  Madras the  Court  found  a  single general conspiracy while in R. v. Griffiths [1965] 2 All E.R. 448 the  Court  found  a  number  of  unrelated  and  separate conspiracies.

16. In the present case, there was a single general conspiracy to  smuggle  gold  into  India  from  foreign  countries.  The scheme was operated by a gang of international crooks. The net was spread over Bombay, Geneva,  Beirut  and Bahrein. Yusuf  Merchant  and  Pedro  Fernandes  supplied  the  brain power, Murad Asharanoff remitted the funds, Lakshmandas Kochra and Rabiyabai supplied the finances, Pedro Fernadez and the Shuhaibar brothers sent the gold from Geneva and the Middle  East,  carriers  brought  the  gold  hidden  in  jackets, mechanics  concealed  and removed  gold  from aircrafts  and others helped in contacting the carriers and disposing of the gold.  Yusuf,  Pedro  and  Murad  and  Lakshmandas  were permanent members of the conspiracy. They were joined later by  Kochra,  the  Shuhaibar  brothers  and  Lori  and  other associates. The original scheme was to bring the gold from Geneva. The nefarious design was extended to smuggling of gold from the Middle East. There can be no doubt that the continuous  smuggling  of  gold  sent  by  Pedro  from Geneva during  February  1956  to  February  1958  formed  part  of  a single conspiracy. The settlement of account between Yusuf and Pedro at Beirut did not end the original conspiracy. There can also be no doubt that the smuggling of gold from Beirut by the Shuhaibar brothers and from Bahrein by their agent Lori were different phases of the same conspiracy. The main argument was that the despatch of gold from Geneva was the result of one conspiracy and that the despatch of gold from the  Middle  East  was  the  result  of  another  separate  and unrelated  conspiracy.  The  courts  below  held,  and  in  our opinion  rightly, that  there  was  a  single  general  conspiracy embracing all the activities. Pedro had a share in the profits of

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the smuggling from Geneva. He got also a share of Yusuf's profits  from  the  smuggling  of  the  Middle  East  gold. Apparently Shuhaibar brothers and Lori had no share in the profits  from  the  smuggling  of  the  Geneva  gold  but  they attached  themselves  to  the  general  conspiracy  originally devised by Yusuf and Pedro with knowledge of its  scheme and purpose and took advantage of its existing organization for  obtaining finances  from Kochra  and Rabiyabai  and for remittances of funds by Yusuf. Each conspirator profited from the general scheme and each one of them played his own part in the general conspiracy. The second contention is rejected.”

This Court has distinguished general conspiracy from number of

separate conspiracies having a similar general purpose. Where different

groups of persons co-operate towards their separate ends without any

privity  with  each  other,  each  combination  constitutes  a  separate

conspiracy.  It  was  held  that  in  the  case  there  was  single  general

conspiracy  to  smuggle  gold  into  India  from  foreign  countries.  The

contention  raised  was  that  separate  conspiracies  were  raised  by  the

accused in the facts of the said case. The facts are quite different in the

instant case. The question which has come up for consideration did not

arise in the aforesaid decision and this Court has held that there was no

prejudice caused to the accused persons by not making separate trials.

39. The  modus operandi being the same would not make it  a single

offence when the offences are separate. Commission of offence pursuant

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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 the accused to be punished

separately for the offence committed in furtherance of conspiracy. In case

there is only one trial for such conspiracy for separate offences, it would

enable the accused person to go scotfree and commit number of offences

which is  not  the  intendment of  law.  The  concept  is  of  ‘same offence’

under Article 20(2) and section 300 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 the 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. 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 the offence. Whatever could be combined has

already been done. Thus we find no merit in the submissions made by

learned senior counsel appearing on behalf of accused persons.

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40. It was also submitted by learned counsel appearing on behalf of

Sajal  Chakraborty  that  the  principle  of  issue  estoppel  is  attracted  to

criminal trial  and has relied upon decision in  Manipur Administration,

Manipur v. Thokchom Bira Singh AIR 1965 SC 87 in which it has been

observed that the rule of issue estoppel in a criminal trial is that where

an issue of fact has been tried by a competent court on a former occasion

and a finding has been reached in favour of an accused, such a finding

would  constitute  estoppel against  the  prosecution.  Said  principle  has

been merged with the principle of Autrefois acquit as enshrined in section

300 Cr.PC. Learned counsel has also relied upon  Assistant Collector of

Customs, Bombay & Anr. v. L.R.Melwani AIR 1970 SC 962 in which this

Court  has observed that  the issue estoppel  rule is  but a facet of  the

doctrine  of  Autrefois  acquit.  He  has  also  referred  to  the  decision  of

Supreme Court  of  the  Federation  of  Malaya  in  Sambasivan  v.  Public

Prosecutor, reported in (1950) AC 458, where two charges were framed for

carrying a firearm and being in possession of ammunition the appellant

being acquitted on the second charge but being subject to a second trial

for the first charge, the Privy Council held that :  

“The  effect  of  a  verdict  of  acquittal  pronounced  by  a competent court on a lawful charge and after a lawful trial is not  completely  stated  by  saying  that  the  person  acquitted cannot be tried again for the same offence.  To that it must be

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added  that  the  verdict  is  binding  and  conclusive  in  all subsequent  proceedings  between  the  parties  to  the adjudication.” (Emphasis Supplied)

41. In  Manipur  Administration (supra)  this  Court  has  affirmed  the

decision in Pritam Singh v. The State of Punjab AIR 1956 SC 415 which in

turn relied upon decision in Sambasivan (supra). Thus it was contended

that CBI is barred from adducing evidence in respect of the allegations

for  which  the  respondent  Sajal  Chakraborty  has  been  subsequently

acquitted  by the High Court  and the conviction recorded by the trial

court has been set aside. Finding had been recorded by the High Court

that  there  was  no  mechanism  with  the  respondent  to  check  illegal

withdrawal from treasury. Receiving of laptop and illegal gratification has

not been proved as a reward and the accused did not take any step to

find out causes of heavy withdrawal of Rs.50.56 lakhs in a single day by

co-accused  Dr.  B.N.  Sharma.  Learned  counsel  has  further  submitted

that  earlier  there  was  no  such practice  to  send  the  yearly  allocation

information to the Deputy Commissioner. Thus the CBI cannot try the

accused on the basis of same allegations de novo. There is no role of the

accused  in  preparation  of  different  fake  bills.  The  prosecution  of  the

respondent is for the same offence in RC 20A/96 and RC 68A/96 for

which he has already been acquitted in RC No.51A/96. Learned counsel

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had also submitted that for each separate bill, separate FIR should have

been registered in case CBI stand is accepted. It  was a series of acts

forming part of the same transaction. It is unclear as to which of the

several  offences  related  to  each  bill  during  the  tenure  as  District

Collector was committed. Thus, there ought to be one trial only. Section

212 of Cr.PC does not cover those facts where the offence of criminal

breach of trust has been clubbed with the offence of criminal conspiracy

under section 120-B IPC.

42. Learned counsel  has referred to  decision in  Emperor  v.  Jhabbar

Mull Lakkar reported in (1922) ILR 49 Cal 924 wherein the Court has laid

down thus :

“6. It is conceded by the earned Counsel for the prosecution that  the  evidence  which  would  be  given  in  respect  of  the present charges, would be identical with the evidence given against  the  accused  at  the  last  Sessions,  and  the  earned Counsel further informed me that the matter of the alleged false entries was investigated at the trial before my learned brother Mr. Justice Walmsley and the Jury. In other words, it was  a  part  of  the  prosecution  case,  at  the  trial  at  the  last Sessions, that the: accused had made the alleged false entries in  the  book  for  the  purpose  of  a  carrying  out  the  alleged misappropriation,  and  with  the  intention  of  concealing  his alleged breach of trust.

7. Since the case was argued last Friday I have considered the matter, and I have come to the conclusion that, on the facts of this  case,  the  accused  ought  not  to  be  put  on  his  trial  in respect of these charges. If he were so tried, in my judgment, it would in effect amount to trying him again for the same

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offences as those upon winch he has already been tried and acquitted by the Jury, although the charges now before the Court are framed in a different manner.

8. Apart from this, I am not at present satisfied that, if it had been thought advisable to lay before the Court at the trial at the  last  Sessions,  the  facts  as  constituting  offence  under Section 477A as well as offences under Section 408, a form of procedure  could not  have been adopted for  the  purpose of carrying out such object.

9. Under these circumstances, in my judgment, it would not b; right to put the accused man on his trial for the second time in respect  of  the  same  evidence  and  in  respect  of  the  same matters  upon  which  he  has  already  been  unanimously acquitted by the Jury.” (Emphasis Supplied)

The said decision has no application to facts of the cases.  

43. The  counsel  has  referred  to  State  of  Bombay  v.  Umarsaheb

Buransaheb Inamdar AIR 1962 SC 1153 dealing with the bar in section

222 of Cr.PC, 1898 corresponding to section 212 of Cr.P.C., 1973 and

section 235 of old Code corresponding to section 220 of Cr.P.C. in which

this Court has observed :

“6. The charge could have been split up into two charges, one with  respect  to  the  offence  of  criminal  breach  of  trust committed  with  respect  to  be  amount  embezzled  between March 6, 1949 and March 5, 1950 and the other with respect to the amount embezzled between March 6, 1950 and June 30, 1950. The two offences of criminal breach of trust could have been tried together in the present case, as the offences were  said  to  have  been  committed  in  pursuance  of  the criminal  conspiracy  entered  into  by  the  accused.  All  the offences  committed  in  pursuance  of  the  conspiracy  are

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committed in the course of the same transaction and therefore can be  tried  together  at  one trial,  in  view of  sub-s.  (1)  of s.     235     of the Code which provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. It  is  therefore  clear  that  no  prejudice  was  caused  to  the accused by the defect in the charge.” (Emphasis Supplied)

The  question  of  amalgamation  and  joint  trial  had  already  been

concluded  by  this  Court.  The  question  of  Autrefois  acquit (double

jeopardy) was not involved in the aforesaid decision.  

44. Gopal Prasad Sinha v. State of Bihar (1971) 2 SCR 619 has also

been relied upon for issue of estoppel.  The Court has laid down:

“The basic principle underlying the rule of  issue-estoppel is that the same of fact and law must have been determined in the previous litigation. The question then arises :  Was it the same issue of fact which was determined in the earlier case ? A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this  case  it  was  found  that  the  appellant  had  never  been appointed as a cashier. He was a temporary senior accounts clerk who was alleged to be doing the work of a cashier.  If there is any likelihood of facts or conditions changing during the  two  periods  which  are  under  consideration  then  it  is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact. It seems to  us  that  the  later  finding  must  necessarily  be  in contradiction of the previous determination. There can be no such contradiction if  the periods are different and the facts relating  to  the  carrying  on  of  the  duties  of  a  cashier  are different.” (Emphasis Supplied)

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Submission of  issue of  estoppel is  based on presupposition that

there is no likelihood of facts or conditions changing in different years.

What would be the facts and conditions cannot be said before trial. Duty

was to be performed at different times. Thus, the decision is of no utility.

The decision does not support the cause espoused.

45. In the case of Mills v. Cooper (1967) 2 QB 459, the facts were that

the defendant was accused of illegally camping on the highway under

section 127 of the Highways Act, l959. One of the primary ingredients of

such crime was being a ‘gipsy’.  There were  two complaints  registered

against him, albeit on different dates. In the first case, he was accused of

being a gipsy as on 22nd December, 1965 and he was acquitted. In the

second case, he was accused of being a gipsy and illegally camping on

13th March, 1966. He took the plea of issue estoppel. Lord Parker, CJ &

Lord Diplock, J.  saw it  differently whilst  disallowing the plea of issue

estoppel. They held that the second case came later in time and evidence

with regard to his status as on the later date cannot be estopped. Being a

gipsy  was  not  a  permanent  disposition.  Lord  Diplock  held  that  issue

estoppel,  in  criminal  proceedings  takes  the  form of  the  ‘rule  against

double jeopardy’. In that sense, issue estoppel is distinct when applied to

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civil and criminal proceedings. In similar light, rejecting the application

of issue estoppel to the facts of that case, Lord Parker, CJ held:

“I  am by  no  means  convinced,  for  reasons  into  which  I  find  it

unnecessary to go, that the doctrine as applied in civil cases has any

application  in  criminal  cases  at  all.  I  will,  however,  assume  for  the

purposes of this case that it has. Even so, I am satisfied that it has no

application in the present case, since the issue determined on the earlier

occasion was that the defendant was not a gipsy on December 22, 1965,  

whereas the issue to be determined on the second occasion was whether

he was a gipsy on March 13, 1966.”

46. On the issue of estoppel, learned Solicitor General has relied upon

Masur Khan v. State of U.P. (1974) 1 SCR 793 thus :

“The Appellant pleaded on the ground of issue estoppel. The issue  was  regarding  his  citizenship.  Earlier,  he  had  been prosecuted by the SDM, Fatehpur u/s  14 of the Foreigners Act. He was then acquitted as not being a foreigner. Now he had  been  detained  under  Paragraph  5  of  the  Foreigners (Internment)  Order, 1962.  The Court  dismissed the petition and therewith the argument of issue estoppel: “Here again it is to be remembered that the principle applies to two criminal proceedings  and  the  proceeding  with  which  we  are  now concerned is  not  a  criminal  proceeding.  We therefore  hold that there is no substance in this contention.   The petition is dismissed.  Whilst  doing  so,  the  Court  retraced  the  jurisprudence  on issue-estoppel starting with the verdict of Lord MacDermott in Sambasivam v. Public, Prosecutor, Federation of Malaya,

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1950 AC. 458 as well as Pritam Singh v. State of Punjab (AIR 1956 SC 415) and Manipur Admn. v. T. Bira Singh (Supra).”

47. With respect to issue of estoppel in  R. v. Humphrys (1976) 2 AER

497, Humphrys had previously been acquitted on a charge of driving a

motorcycle whilst being disqualified to do so. During his trial he testified

that he hadn’t at all driven a motorcycle during that year and he was

acquitted. Later, it  was found that he had lied leading to a charge of

perjury.  Their Lordships were then faced with two broad issues: first,

whether issue estoppel operated in criminal proceedings; second, even if

issue estoppel was not recognised by the criminal law, was the bringing

of a charge of perjury prevented by the generality of the double jeopardy

doctrine? On the first issue, the one that was being addressed there, the

House was unequivocal in its view that issue estoppel had no place in

criminal proceedings.

48. In Ravinder Singh v. Sukhbir Singh (2013) 9 SCC 245, the appellant

had  come up  in  appeal  against  the  High  Court  order  dismissing  his

application for quashing of criminal proceedings initiated by R-1 under

SC, ST (Prevention of Atrocities) Act, 1989. The dispute was over some

agricultural land in Delhi over which multiple FIRs. and writs were filed.

Counsel  for  the  appellant  pleaded  on  the  grounds  of  issue  estoppel

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stating that the issue had already been settled by the High Court. While

allowing  the  appeal,  this  Court  then  drew  a  distinction  between

‘issue-estoppel’ and ‘double jeopardy’ holding the former not to be a bar

on a second proceeding but merely acting as estoppel qua prior findings.

49. Thus, it is apparent that it is premature to raise the plea of issue of

estoppel before evidence is recorded for different sets of accusations of

different  offences  for  different  periods.  Then it  is  difficult  to  say  that

prosecution  would  be  bound  by  the  finding  in  a  previous  trial  on  a

similar issue of fact and there may not be any contradiction if the periods

are  different  and with  respect  to  culpability  for  different  periods  and

without fear of contradiction, separate findings can be recorded. In what

manner the duty has been carried on for different periods would be the

question of fact in each case and there is no question of double jeopardy

in such a case.

50. We are constrained to observe that the same learned Judge had

taken a different view in Dr. R.K. Rana’s case on the basis of same facts,

and same question of law in the same cases. Judicial discipline requires

that such a blatant contradiction in such an important matter should

have been avoided. The order passed in the case of Dr. R.K. Rana was on

sound  basis  and  though  the  court  had  noted  that  there  was  some

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overlapping  of  facts  but  the  offences  were  different,  it,  however,  has

taken a different view in the impugned order for the reasons which are

not understandable. The court ought to have been careful while dealing

with such matters and consistency is the hallmark of the court due to

which people have faith in the system and it is not open to the court to

take  a  different  view  in  the  same  matter  with  reference  to  different

accused persons in the same facts and same case. Such inconsistent

decision-making ought to have been avoided at all costs so as to ensure

credibility of the system. The impugned orders are palpably illegal, faulty

and contrary to the basic principles of law and Judge has ignored large

number  of  binding  decisions  of  this  Court  while  giving  impermissible

benefit to the accused persons and delayed the case for several years.

Interference had been made at the advanced stage of the case which was

wholly  unwarranted  and  uncalled  for.  Let  now  amends  be  made  by

expediting the trial without any further hindrance from any quarter.

51. Coming to the question of delay, we find that there is a delay of

113,  157  and  222  days  in  filing  the  respective  appeals  by  the  CBI.

Applications have been filed for condonation of delay on account of the

departmental, administrative procedures involved in for filing the special

leave petition.  It is submitted that unlike the private litigant the matters

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relating to the Government are required to be considered at various levels

and  then  only  a  decision  is  taken to  file  special  leave  petition.   The

process of referring the particular file from one department to another is

a time consuming process and decisions have to be taken collectively.

52. It was submitted by Shri Ram Jethmalani, learned senior counsel

appearing on behalf of the respondents that delay of 157 days has not

been satisfactorily explained.  The averments made in the applications

seeking condonation of delay are based upon earlier authorities which no

longer can be said to be good law.  He has relied upon the decisions in

Postmaster General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC

503 and State of U.P. thr. Exe. Engineer v. Amar Nath Yadav (2014) 2 SCC

422.  His submission is that Law of Limitation binds everybody equally

including the Government and defense by the Government of impersonal

machinery and inherited bureaucratic methodology cannot be accepted

in view of the modern technology being used and available; more so in

the  light  of  the  aforesaid  decisions.  Delay  in  moving  files  from  one

department  to  another  is  not  sufficient  explanation  for  condoning

abnormal delay.  Condonation of delay is an exception and should not be

used as an anticipated benefit for the Government department.  The case

was  investigated  by  CBI  from beginning  to  end and the  CBI  Manual

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provides mechanism for filing appeal expeditiously.  The CBI was bound

by its  Manual and in violation of  the provisions contained in Manual

without sufficient explanation, the delay cannot be condoned.

53. Reliance was also placed on  Ajit Singh Thakur & Anr. v. State of

Gujarat  1981 (1) SCC 495, which has been approved in  Pundlik Jalam

Patil (D) by Lrs. v. Exe. Engg. Jalgaon Medium Project & Anr.  (2008) 17

SCC 448 that as per the conduct of the appellants they are not entitled

for condonation of delay, more so, in view of the decision in Binod Bihari

Singh v. Union of India (1993) 1 SCC 572 as t*here was suppression as to

when the judgment was applied or received.  CBI Manual has a statutory

force as held in  Vineet Narain & Ors. v. Union of India & Anr. (1998) 1

SCC 226 and the guidelines as to time frame should have been strictly

adhered to as observed by this Court.   

54. On the other hand, learned Solicitor General has submitted that

delay deserves to be condoned.  He has relied upon the decision of this

Court in Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394 in

which it has been observed that in serious offences, prosecution is done

by the State and the court of law should not throw away prosecution

solely on the ground of delay. Mere delay in approaching a court of law

would not by itself afford a ground for dismissing the case.  He has also

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referred to Sajjan Kumar v. Union of India (2010) 9 SCC 368 to contend

that a prosecution should not be quashed merely on the ground of the

delay. The aforesaid decisions cited of  Japani Sahoo and  Sajjan Kumar

(supra) are with respect to the delay in institution of the case not with

respect to sufficient cause in filing of appeals.  However, reliance on the

State of  Tamil  Nadu v.  M. Suresh Rajan (2014) 11 SCC 709 is apt in

which the time consumed in taking opinion on change of Government

was held to be sufficient cause so as to condone the delay.  Reliance has

also been placed on Indian Oil Corporation Ltd. & Ors. v. Subrata Borah

Chowlek, etc. (2010) 14 SCC 419 in which there was a delay in filing the

appeals  in  which  this  Court  has  observed  that  Section  5  owes  no

distinction between State  and citizen.   The Court  has to  ensure that

owing to some delay on part  of  the machinery,  miscarriage of  justice

should not take place.  It is also contended that the power under Section

5 of the Limitation Act should be exercised to advance substantial justice

by placing reliance on State of Nagaland v. Lipok AO & Ors. (2005) 3 SCC

752.  

55. In view of the averments made in the applications we are satisfied

that delay has been sufficiently explained and considering the facts and

circumstances of the case, gravamen of matter and also the divergent

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views taken by the same Judge of the High Court in the same case vis a

vis different accused persons on same question, we consider it our duty

not  to  throw away  petition on the ground of  delay.   The explanation

offered by the CBI of movement of file so as to condone the delay so as to

subserve the ends of justice, deserves to be accepted.  No doubt about it

that the CBI ought to have acted with more circumspection and ought to

have  followed the  CBI  Manual.  It  is  regrettable  that  we  are  receiving

majority  of  the  special  leave  petitions  filed  in  this  Court  barred  by

limitation not only on behalf of the Government but also by the other

private litigants.  Not only that the special leave petitions are preferred

with the delay but in refiling also enormous time is consumed and this

Court in order to advance substantial justice is not throwing away cases

only on limitation.  

56. Sufficiency of cause has to be judged in a pragmatic manner so as

to advance cause of justice. No doubt about it that litigants are supposed

to act with circumspection within limitation and that there should not be

delay and laches and State machinery should not be differentiated vis a

vis with  the  private  individual  in  the  matter  of  filing  the  appeals,

petitions etc., however, in the facts and circumstances of the case and

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considering the averments in the applications, we deem it appropriate to

condone the delay in filing the appeals in this court.  

57. In this case, we are surprised at the conduct of the CBI in such

important matters how such delay could take place.  The CBI ought to

have been careful in filing the Special Leave Petitions within limitation

considering the factual matrix of the case.  The criticism made by the

senior counsel for respondent is not wholly unjustified.  CBI ought to be

guided by its Manual.  It is expected of it to be more vigilant.  It has

failed to live up to its reputation.  In the instant case, lethargy on its part

is intolerable.  If CBI fails to act timely, peoples’ faith will be shaken in its

effectiveness.  Let the Director of CBI look into the matter and saddle the

responsibility on a concerned person.  In important cases Director, CBI

should devise methodology which should not be cumbersome as reflected

in  these  cases,  otherwise  in  future,  Director,  CBI  cannot  escape  the

responsibility  for delay in such cases to  be termed as deliberate  one,

which  is  intolerable.  Being  the  head  of  the  institution  it  was  the

responsibility  of  the  Director,  CBI  to  ensure  that  appeals  were  filed

within limitation. There should not have been delay in filing special leave

petitions at all.

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58. Resultantly,  we  set  aside  the  impugned  judgments  and  orders

passed by the High Court, allow the appeals and direct the trial court

concerned  to  expedite  the  trial  and  to  conclude  the  same  as  far  as

possible within a period of nine months from today.

………………………..J. (ARUN MISHRA)

............................J.   (AMITAVA ROY)     

NEW DELHI; MAY 08, 2017.

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