Constitution of India – Art.20(2) – Principle of double jeopardy – When not applicable – Case registered against the respondent-accused u/s.13(1)(c)(d)(e) r/w s.13(2), 1988 Act and s.409,IPC– Special Court discharged the accused/respondent due to lack of proper sanction and closed the case– Subsequently, Governor in supersession of the earlier order granted sanction for prosecution of the respondent – Supplementary charge sheet along with fresh prosecution sanction against the respondent submitted for reopening the case – Dismissed on the ground that it was barred by the principle of “double jeopardy” – Propriety of – Held: Since the earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution – Unless there is failure of justice on account of error, omission or irregularity in grant of sanction for prosecution, the proceedings under the 1988 Act could not be vitiated – By filing fresh charge sheet, no prejudice is caused to the respondent nor would it result in failure of justice to be barred under the principle of “double jeopardy” – Under Art.20(2), no person shall be prosecuted and punished for the same offence more than once – Basis of s.300(1), CrPC is that the person who was tried by a competent court, once acquitted or convicted, cannot be tried for the same offence – However, in the case in hand, the respondent was not tried as he was discharged due to lack of proper sanction even before commencement of trial– Where the accused has not been tried at all and convicted or acquitted, the principle of “double jeopardy” cannot be invoked at all – Thus, when the respondent was so discharged due to lack of proper sanction, the principle of “double jeopardy” will not apply – There was no bar for filing fresh/supplementary charge sheet after obtaining valid sanction for prosecution – Special Court and the High Court were not right in holding that the filing of the fresh charge sheet with proper sanction order for prosecution was barred under the principle of “double jeopardy”– Impugned judgment set aside – Special Court to take cognizance of the charge sheet dated 30.01.2014 and proceed in accordance with law – Prevention of Corruption Act, 1988 – s.13(1)(c)(d)(e) r/w s.13(2) – Penal Code, 1860– s.409– Code of Criminal Procedure, 1973– s.300(1).
Prevention of Corruption Act, 1988 – s.19(3) and (4) – Discussed.
Allowing the appeal, the Court
HELD: 1.1 Since the earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution. The courts are not to quash or stay the proceedings under the Prevention of Corruption Act, 1988 merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in failure of justice. A combined reading of sub-sections (3) and (4) of Section 19 of Prevention Act make the position clear that notwithstanding anything contained in the Code no finding, sentence and order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. In the instant case, of course, the initial sanction was granted by the Secretary, DP & AR to Government of Mizoram. Having taken cognizance of the matter, before passing the discharge order, the Special Judge ought to have examined the matter to ascertain whether such error or irregularity in the sanction has resulted in failure of justice. No such reasonings were recorded by the Special Judge or by the High Court that the initial sanction for prosecution granted by the Secretary has resulted in failure of justice. Unless there is failure of justice on account of error, omission or irregularity in grant of sanction for prosecution, the proceedings under the Act could not be vitiated. By f iling fresh charge sheet, no prejudice is caused to the respondent nor would it result in failure of justice to be barred under the principles of “double jeopardy”. [Paras 9, 10 and 14][73-C-G; 76-E]
1.2 The respondent was discharged even before
commencement of trial due to lack of proper sanction, there was no impediment for filing the fresh/supplementary charge sheet after obtaining valid sanction. Under Article 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once. Section 300 Cr.P.C. lays down that a person once convicted or acquitted, cannot be tried for the same offence. In order to bar the trial of any person already tried, it must be shown – (i) that he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at that trial, on the same facts; (ii) that he has been convicted or acquitted at the trial; and (iii) that such conviction or acquittal is in force. Where the accused has not been tried at all and convicted or acquitted, the principles of “double jeopardy” cannot be invoked at all. The whole basis of Section 300 (1) Cr.P.C. is that the person who was tried by a competent court, once acquitted or convicted, cannot be tried for the same offence. In the case in hand, the respondent/accused was not tried nor was there a full-fledged trial. On the other hand, the order of discharge passed by the Special Court was only due to invalidity attached to the prosecution. When the respondent was so discharged due to lack of proper sanction, the principles of “double jeopardy” will not apply. There was no bar for filing fresh/supplementary charge sheet after obtaining a valid sanction for prosecution. The Special Court and the High Court were not right in holding that the filing of the fresh charge sheet with proper sanction order for prosecution was barred under the principles of “double jeopardy”. The impugned judgment is set aside. The Special Court, PC Act, Aizawl, Mizoram is directed to take cognizance of the charge sheet dated 30.01.2014 and proceed with the same in accordance with law. [Para 14-17 and 18][76-D, F-H; 77-A-D, F] State of Goa v. Babu Thomas (2005) 8 SCC 130 : [2005]
3 Suppl. SCR 712 – referred to.
Nanjappa v. State of Karnataka (2015) 14 SCC 186 : [2015] 8 SCR 685 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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