2010 (11) TMI 1087 - SC - Indian Laws

Double Jeopardy - Double prosecution and punishment for same offence - conviction of the appellants under Section 120-B 419 and 420 IPC and other provisions including under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act - allegation against Accused No. 3 (appellant in Criminal Appeal No. 782/2007) is that she obtained a second passport in the assumed name of Sana Malik Kamal from the Regional Passport Office Secunderabad by submitting false documents like residence certificate educational certificate with the help of A-4 to A-9. Double Jeopardy - whether the appellant s guaranteed fundamental right under Article 20 (2) has been infringed? - HELD THAT - Article 20 (2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once - The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence he can plead as a complete defence his former conviction or as it is technically expressed take the plea of autrefois convict. This in essence is the common law principle. In MAQBOOL HUSSAIN VERSUS STATE OF BOMBAY 1953 (4) TMI 19 - SUPREME COURT this Court explained the scope of the right guaranteed under Article 20 (2) and as to what is incorporated in it as within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as it known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. That in order for the protection of Article 20 (2) to be invoked by a person there must have been a prosecution and as well as punishment in respect of the same offence before a court of law of competent jurisdiction or a tribunal required by law to decide the matters in controversy judicially on evidence. What is the meaning of expression used in Article 20 (2) for the same offence ? - HELD THAT - If the offences are distinct there is no question of the rule as to double jeopardy being applicable - In Leo RoyLEO ROY FREY VERSUS SUPERINTENDENT DISTRICT JAIL AMRITSAR AND ANOTHER 1957 (10) TMI 1 - SUPREME COURT petitioners therein were found guilty under Section 167 (8) of the Sea Customs Act and the goods recovered from their possession were confiscated and heavy personal penalties imposed on them by the authority. Complaints thereafter were lodged by the authorities before the Additional District Magistrate under Section 120B of the Indian Penal Code read with provisions of the Foreign Exchange Regulations Act 1947 and the Sea Customs Act. The petitioners approached the Supreme Court for quashing of the proceedings pending against them in the court of Magistrate inter alia contending that in view of the provisions of Article 20 (2) of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Magistrate violated the protection afforded by Article 20 (2) of the Constitution. This Court rejected the contention and held that criminal conspiracy is an offence under Section 120B of the Indian Penal Code but not so under the Sea Customs Act and the petitioners were not and could not be charged with it before the Collector of Customs. It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed and even when attempted or completed; it forms no ingredients of such crime. The State of Bombay vs. S.L. Apte 1960 (12) TMI 82 - SUPREME COURT this Court laid down the law stating that if the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20 (2) of the Constitution being applicable. It was the case where the accused were sought to be punished for the offence under Section 105 Insurance Act after their trial and conviction for the offence under Section 409 Penal Code this Court held that they were not sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20 (2) of the Constitution or Section 26 of the General Clause Act 1897 was not applicable. It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence. Whether the appellant can be said to have satisfied all the conditions that are necessary to enable her to claim the protection of Article 20 (2) of the Constitution? - HELD THAT - The charges upon which the appellant has been convicted now for the charges under the Indian Penal Code we will presume for present purpose that the allegations upon which these charges are based proved resulting in conviction and punishment of the appellant are substantially the same which formed the subject matter of prosecution and conviction under the penal provisions of Portugal law. But there exists no doubt to hold that the punishment of the appellant is not for the same offence - Be that as it may there is no factual foundation laid as such by the appellant taking this plea before the trial court. Nothing is suggested to the Investigating Officer or to any of the witnesses that she is sought to be prosecuted and punished for the same offence for which she has been charged and convicted by a competent court of jurisdiction at Lisbon. She did not even make any such statement in her examination under Section 313 Cr.P.C. It is true that the fundamental right guaranteed under Article 20 (2) of the Constitution is in the nature of an injunction against the State prohibiting it to prosecute and punish any person for the same offence more than ones but the initial burden is upon the accused to take the necessary plea and establish the same. The appellant s plea of double jeopardy is wholly untenable and unsustainable. Whether the courts below committed any error in convicting and sentencing the appellant for the charged offences? Is there no evidence against the appellant as contended by the learned senior counsel? - HELD THAT - It is fairly settled that this Court in exercise of its jurisdiction under Article 136 of the Constitution of India normally does not interfere with the concurrent findings of facts arrived at by the courts below on proper appreciation of evidence. It is not the function of this Court to re-appreciate the evidence and substitute the findings for that of the courts below unless it is clearly established that the findings and the conclusions so arrived at by the courts below are perverse and based on no evidence. It is evident from the record that the involvement of the appellants is at two stages. Stage one is where Monica Bedi (A-3) and Mohd. Yunis (A-7) are involved in the pre- passport application at the threshold and even before the preparation of application seeking the passport in the assumed name. Stage two is the involvement of Monica Bedi (A-3) Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8) after the submission of passport application before the authorities. The High Court came to the conclusion that in submitting the false verification report in respect of residence of Sana Malik Kamal he may not have been aware and knew that the certificate so obtained would be used for the purpose of securing the passport in the assumed name of Sana Malik Kamal. At any rate there is no evidence on that aspect of the matter. The High Court also came to the conclusion that by the time Mohd. Yunis (A-7) submitted a false verification there is nothing on record that he was hand in glove with the other accused for the purpose of cheating. Be it noted that the High Court confirmed the acquittal of A-7 of the charge under Section 120B IPC. The High Court accordingly found that the proper offence made against him would be one for making forged document simplicitor punishable under Section 465 IPC - the High Court was not justified in convicting Mohd. Yunis (A-7) at all for it had found no case against the appellant made out under Section 120B IPC and further found that there is no evidence to assume that he was hand in glove with the other accused for the purpose of cheating. That there is no evidence that A-7 prepared false document with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud. The ingredients of Section 463 are not satisfied. In such an event the conviction of the appellant under Section 465 IPC is unsustainable. So far as D. Gokari Saheb (A-8) is concerned there is a clear evidence which has been properly appreciated by the courts below that he who took the article (envelop contained the passport) addressed to Sana Malik Kamal from PW-11 representing that he knew the addressee and deliver the same. The said article was actually entrusted to PW-11 for its delivery but D. Gokari Saheb (A- 8) took the same from PW-11 for delivery to Sana Malik Kamal - assumed name of Monica Bedi (A-3). The courts below found that D. Gokari Saheb (A-8) was aware of the contents of the article - the conviction of D. Gokari Saheb (A-8) for the charged offences is accordingly upheld. There are no reason whatsoever to interfere with the view taken by the High Court. However the sentence of one year rigorous imprisonment under each count awarded while maintaining the fine imposed by the trial court is reduced to that of 6 months rigorous imprisonment under each count while maintaining the fine amount. So far as the appellant - Monica Bedi is concerned she is involved in the conspiracy as proved at both stages i.e. pre-passport application stage and post-passport application stage. The conspiracy itself has been hatched only with a view to secure a passport for Monica Bedi in the assumed name of Sana Malik Kamal - there are no merit in the submission of Shri Tulsi learned senior counsel that there is no evidence whatsoever against Monica Bedi to prove her involvement for the offence punishable under Sections 120B 419 and 420 IPC - It is for her benefit that the entire conspiracy has been hatched involving more than one individual in order to secure a passport for her benefit enabling her to travel abroad in the assumed name of Sana Malik Kamal. There is no material based on which this Court is to differ with the findings and conclusions concurrently arrived at by the courts below. Having regard to the facts and circumstances of the case and the fact that she had undergone more than 2 years of sentence it is considered appropriate to reduce the sentence to that of already undergone by her while maintaining fine amount imposed by the courts below. Appeal allowed in part.

Summary

Issues Involved:
1. Conviction under Section 120-B IPC.
2. Conviction under Section 419 IPC.
3. Conviction under Section 420 IPC.
4. Conviction under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act.
5. Double jeopardy under Article 20(2) of the Constitution and Section 300 Cr.P.C.
6. Interpretation of Section 428 Cr.P.C.
7. Admission of evidence under Section 78(6) of the Indian Evidence Act.

Issue-wise Detailed Analysis:

1. Conviction under Section 120-B IPC:
The appellants were convicted under Section 120-B IPC for criminal conspiracy. The prosecution established that the appellants conspired to obtain a passport in the assumed name of Sana Malik Kamal for Monica Bedi (A-3). The trial court and the High Court found sufficient evidence to convict the appellants under this section. The Supreme Court upheld the conviction, noting that the conspiracy was proved at both the pre-passport application stage and the post-passport application stage.

2. Conviction under Section 419 IPC:
Monica Bedi (A-3) was convicted under Section 419 IPC for cheating by personation. The evidence showed that she obtained a passport under a false name and used it to travel abroad. The trial court and the High Court found her guilty, and the Supreme Court upheld the conviction, noting that the sequence of events and the evidence clearly proved the charges.

3. Conviction under Section 420 IPC:
Monica Bedi (A-3) was also convicted under Section 420 IPC for cheating and dishonestly inducing delivery of property. The courts found that she used false documents to obtain the passport. The Supreme Court upheld the conviction, agreeing with the findings of the lower courts.

4. Conviction under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act:
Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8) were convicted under these sections for their involvement in the conspiracy and for submitting false reports and documents to facilitate the issuance of the passport. The Supreme Court upheld the convictions but reduced the sentences to six months rigorous imprisonment while maintaining the fines imposed by the lower courts.

5. Double Jeopardy under Article 20(2) of the Constitution and Section 300 Cr.P.C.:
Monica Bedi (A-3) argued that her trial and conviction in India amounted to double jeopardy since she had already been convicted in Portugal for possessing a fake passport. The Supreme Court rejected this argument, stating that the same set of facts can constitute offences under different laws, and the protection against double jeopardy applies only when the ingredients of both offences are the same. The Court found no factual foundation for the plea of double jeopardy and held that the punishment in India was not for the same offence.

6. Interpretation of Section 428 Cr.P.C.:
Monica Bedi (A-3) sought the benefit of set-off for the period of detention she underwent in Portugal. The High Court allowed the set-off for the periods of detention in Lisbon. The Supreme Court, while reducing her sentence to the period already undergone, did not find it necessary to delve into the interpretation of Section 428 Cr.P.C.

7. Admission of Evidence under Section 78(6) of the Indian Evidence Act:
Monica Bedi (A-3) contended that Exhibit P50, a Photostat copy of the passport, was inadmissible as it was not authenticated by a legal keeper as required under Section 78(6) of the Evidence Act. The Supreme Court rejected this contention, stating that Section 78(6) deals with public documents of a foreign country, and the original passport was issued by Indian authorities. The issuance of the original passport was proved, and the prosecution was not vitiated.

Conclusion:
The Supreme Court confirmed the convictions of Monica Bedi (A-3) under Sections 120B, 419, and 420 IPC but reduced her sentence to the period already undergone. The convictions of Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8) under various sections, including the Prevention of Corruption Act, were upheld, but their sentences were reduced to six months rigorous imprisonment. Mohd. Yunis (A-7) was acquitted of the offence under Section 465 IPC. The appeals were partly allowed or allowed accordingly.