Monica Bedi Vs State
of A.P. WITH CRIMINAL APPEAL NO. 784 OF 2007
Shaik Abdul Sattar Vs
State of A.P. WITH CRIMINAL APPEAL NO. 783 OF 2007
D. Gokari Saheb Vs State
of A.P. WITH CRIMINAL APPEAL NO. 1357 OF 2007Mohd. Yunis State of A.P
JUDGMENT
B. Sudershan Reddy, J
:
1.
These
criminal appeals which are to be disposed of by a common order are directed
against the common judgment of the High Court where under the High Court
confirmed the conviction of the appellants under Section 120-B, 419 and420 IPC
and other provisions including under Section 13(1) (d) read with 13 (2) of
the Prevention of Corruption Act. We shall later notice in detail the
conviction and sentence as awarded by the courts below.
2.
The
Central Bureau of Investigation, SPE, Hyderabad, laid charge sheet against
altogether 10 accused persons before the Special Judge for C.B.I. cases, Hyderabad
in which Abu Salem Abdul Qayoom Ansari @ Abu Salem(A-1),Sameera Jumani w/o Abu
Salem(A-2), Monica Bedi (A-3),Chamundi Abdul Hameed (A-6) and Faizan Ahmed
Sultan(A-10) were shown as absconders. The learned SpecialJudge took the charge
sheet on file as C.C. No. 3 of 2005and issued non-bailable warrants against
A-1, A-2, A-3, A-6and A-10. Case against A-1, A-2, A-6 and A-10 came to be
separated and case proceeded against A-3, A-4, A-5, A-7, A-8 and A-9.
3.
The
learned Special Judge upon consideration of the material made available framed
the following charges against the accused persons
i.
for
the offence under Section 120-B IPC against A-3 to A-5, A-7 to A-9;
ii.
for
the offence under Section 419 IPC against A-3;
iii.
for
the offence under Section 419 r/w 109 IPC against A-4, A-5 and A-7 to A-9;
iv.
for
the offence under Section 468 IPC against A-5;
v.
for
the offence under Section 420 IPC against A-8;
vi.
for
the offence under Section 468 IPC against A-7;
vii.
vii)
for the offence under Section 13 (1) (d) r/w 13(2) of the Prevention of
Corruption Act against A-4, A-5, A-7 and A-8;
viii.
for
the offence under Section 12 of the Passports Act, 1967 against A-3;
ix.
for
the offence under Section 420 IPC against A-3;
x.
for
the offence under Section 420 r/w 109 IPC against A-4, A-5, A-7 to A-9.
1.
2.
3.
4. The prosecution in
order to substantiate the charges examined altogether 38 witnesses and proved
documents. Exhibit D-1 to Exhibit D-4 were marked on behalf of the defence.
5. The learned trial
judge upon appreciation of the evidence and material available on record found
Monika Bedi (A-3 ) guilty of the offences punishable under Sections 120-B, 419
and 420 IPC but acquitted of the charge under Section 12 of the Passports Act,
1967; Shaik Abdul Sattar (A-5) guilty of the offences under Sections 120-B, 419
r/w109, 420 r/w 109, 468 IPC and Sections 13(1) (d) r/w 13(2) of the Prevention
of Corruption Act; Mohammed Yunis(A-7) guilty of the offence under Section 468
IPC and D.Gokari Saheb (A-8) guilty of the offences under Section120B, 420, 419
r/w 109 IPC, 420 r/w 109 IPC and under Sections 13 (1) (d) r/w 13 (2) of the
Prevention of Corruption Act. A-3 was accordingly sentenced to suffer rigorous
imprisonment for three years and to pay a fine of Rs. 500/-, in default, to
suffer simple imprisonment for one month for the offence under Section 120-B
IPC; rigorous imprisonment for five years and to pay a fine of Rs. 1,000/-in
default, to suffer simple imprisonment for one month for the offence under
Section 420 IPC; rigorous imprisonment for three years and to pay a fine of Rs.
500/-, in default, to suffer simple imprisonment for one month and for the
offence under Section 419 IPC; A-5 to suffer rigorous imprisonment for three
years and to pay a fine of Rs. 500/-,in default, to suffer simple imprisonment
for one month for the offence under Section 120-B IPC; rigorous imprisonment
for three years and to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for one month for the offence under Section 419 r/w 109 IPC;
rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in
default, to suffer simple imprisonment for one month for the offence under
Section 420 r/w 109 IPC; rigorous imprisonment for three years and to pay a
fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for
the offence under Section 468 IPC, and rigorous imprisonment for one year and
to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one
month for the offence under Sections 13 (1) (d) r/w 13 (2) of the Prevention of
Corruption Act. A-7 to suffer rigorous imprisonment for three years and to pay
a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month
for the offence under Section 468 IPC; A-8 to suffer rigorous imprisonment for
three years and to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for one month for the offence under Section 120-B IPC; rigorous
imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer
simple imprisonment for one month for the offence under Section 419 r/w 109
IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in
default, to suffer simple imprisonment for one month for the offence under
Section 420 r/w 109 IPC; rigorous imprisonment for three years and to pay a
fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for
the offence under Section 420 IPC and rigorous imprisonment for one year and to
pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one
month for the offence under Sections13 (1) (d) r/w 13 (2) of the Prevention of
Corruption Act. All the substantive sentences were directed to run
concurrently.
6. 6. On appeal the
High Court of Andhra Pradesh upon re-appreciation of evidence available on
record confirmed the conviction of A-3 for the offences punishable under
Sections120-B, 419 and 420 IPC but reduced the sentence from three years rigorous
imprisonment to two years rigorous imprisonment for the offence punishable
under Section 120BIPC, from five years rigorous imprisonment to three years
rigorous imprisonment for the offence punishable under Section 420 IPC and from
three years rigorous imprisonment to two years rigorous imprisonment for the
offence punishable under Section 419 IPC while maintaining the fine imposed by
the trial court. The High Court also confirmed the conviction of A-5 under
each count but reduced the quantum of imprisonment from three years to one year
for offences under each count under Sections 120-B, 419 r/w 109, 420 r/w 109,
468 IPC. However, his conviction and sentence imposed for the offences punishable
under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act
was confirmed. That so far as A-7 is concerned the High Court while partly
allowing the appeal modified the conviction from Section 468 IPC to that of one
under Section 465 IPC and accordingly sentenced to suffer rigorous imprisonment
for six months and to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for three months. That so far as A-8 is concerned the High Court
confirmed his conviction under all counts but reduced the quantum of
imprisonment from three years to one year for offences under each count under
Section 120-B, 420, 419r/w 109, 420 r/w 109, 468 IPC. However, his conviction and
sentence imposed for the offences punishable under Section13(1) (d) r/w 13 (2)
of the Prevention of Corruption Act was confirmed. Hence, these appeals.Case
of Prosecution:
7. In order to consider
as to whether the High Court committed any error in convicting and sentencing
the appellants as noted herein above, it may be just and necessary to briefly
notice the case of the prosecution. The 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. She used the passport to travel
Lisbon, Portugal. The owner of M/s. Faizan Enterprises, Mumbai (A-10) is
involved in the business of recruiting people for jobs in foreign countries. He
gave 10 passport size photographs of A-1 to A-3 and fake names and documents to
A-9 to secure passports falsely showing them as residents of Kurnool in the
State of Andhra Pradesh. A-9has relatives in Kurnool. He visited Kurnool in the
month of March, 2001 and entrusted the work of securing passports ofA-1 to A-3,
to A-6 an unauthorized passport agent. At the instance of A-6, A-7 Mohammed
Yunis, Mandal Revenue Inspector of Mandal Revenue Office, Kurnool issued a false
residential certificates in the assumed names intended for the benefit of A-1
to A-3. A-6 procured fake transfer certificates purported to have been issued
by theHeadmaster, Zila Parishad High Court, Peddapadu, Kurnool District in
the name of Ramil Kamil Malik and two fake memorandum of marks sheets in the
names of Neha AsifJafari and Sana Malik, purported to have been issued by the Headmaster,
Higher Elementary School, Kurnool, as a proof in support of date of birth. One
Abdul Gaffar (PW-1) filled up three passport applications of A-1 to A-3 at the instance
of A-6 and they were accordingly submitted in the Regional Passport Office,
Secunderabad. The authorities accordingly sent the particulars mentioned in the
forms to the office of Superintendent of Police, Kurnool which were received in
the office on 16.5.2001 vide exhibit P-28 covering letter. A-5(appellant in
Criminal Appeal No. 784/07) at the relevant time was working as Writer-Head
Constable in special branch. He submitted fake verification reports along with
statements of six persons in support of character and conduct of A-1 to A-3 by
portraying them as if they were the neighbours of A-1 to A-3. On receipt of
reports, A-4despatched them to Regional Passport Office, Secunderabad. It is on
the basis of these reports, passports were accordingly issued to A-1 to A-3 in
their assumed names and they were despatched by speed post to their respective address
at Kurnool as indicated in the passport applications. The passports were
received at the Head Post Office, Kurnool through speed post. On 23.8.2001 two speed
post articles addressed to the assumed names of A-2 and A-3 were entrusted to
PW-11 Babu Miah, a postman of Beat 2,for delivery of the same to the addressees.
A-8 (D. GokariSaheb appellant in criminal appeal no. 783/07) Postman, Head
Post Office, Kurnool, approached PW-11 Babu Miahand collected the two speed
post articles by giving his acknowledgement on the delivery slip list falsely
representing that he knew the addresses and he would personally deliver the
articles. On 27.8.2001 another speed post article containing passport in the
assumed name of A-1was entrusted to A-8 for delivery who in turn delivered it
to one Aslam Khan, Cashier of Hotel Elite, Kurnool where A-6was also working.
A-6 sent two covers to A-9 on 23.8.2001and 27.8.2001 in courier service.
8. 8. We shall notice
further details only so far as the appellants before us are concerned. Exhibit
P1 is the indexcard of Sana Malik Kamal. ( assumed name for Monika Bedi). PW-1
is the author of exhibit P1. PW-1 filled upexhibit P1 at the request of C.A.
Hameed (A-6). PW-4 is the Superintendent in the Regional Passport Office,
Secunderabad. He speaks of issuance of the passports in pursuance of passport
application in the name of Sana Malik. PW-5 P. Krishna Mohan Reddy was the
Mandal Revenue Officer, Kurnool Mandal who issued residence certificate dated
9.4.2001 in the name of Sana Malik Kamalbased on false verification reports
submitted by A-7Mohammad Yunis. That as per exhibit P9 residence certificate,
Sana Malik Kamal (assumed name of Monica Bedi) is stated to be residing at Babu
Gounda Street,Kurnool. PW-6 at the relevant time was working as Deputy Educational
Officer, Nandyal, Kurnool District who statedthat there was no school by name
of Hanuman Higher Elementary School, Kurnool wherein Sana Malik Kamal was alleged
to have studied. PW-7 M. Lakshminarayana at the relevant time was the Junior
Assistant in the District Police Office, Kurnool and he speaks of receiving
applications forverification of contents therein. According to him, A-4 (
G.Srinivas) who attended to passport inquiries, received the passport
application of Sana Malik Kamal. After receipt of exhibit P15 enquiry report
along with exhibits P16 and P17statements submitted by A-5 S.A. Sattar, A-4
prepared the relevant report and forwarded the same to the Regional Passport
Office, Secunderabad. Exhibit P18 is the letter addressed by the
Superintendent of Police to the Regional Passport Office, Secunderabad
reporting no objection for the grant of passport to the applicant. Rest of
evidence relates to handing over of speed post articles relating to Babu Miahas
per the instructions of the Head Post Master, Kurnool from whom A-8 Gokari
Saheb took the speed post articles from him for being delivered to the
addressees. PW-13 is the owner of the residential apartment wherein Monica
Bedi(A-3) is alleged to have resided as tenant during the years1995-1997. Rest
of the details are not required to be noticed.
9. The learned Special
judge for C.B.I. on a careful and meticulous appreciation of the evidence and
material made available on record convicted the appellants as noted
hereinabove. The High Court on re-appreciation of the evidence confirmed the
conviction but modified the sentence as noted herein above.Submissions:
10. Now we shall proceed
to consider the submissions made by the learned senior counsel Shri K.T.S.
Tulsi appearing on behalf of the appellant - Monica Bedi (A-3).The learned
senior counsel submitted that the appellant has been tried and convicted by a
competent court of jurisdiction at Lisbon for being in possession of fake
passport and, therefore, her trial and conviction for possessing the same passport
before the C.B.I. Court at Hyderabad amounts to double jeopardy and in
violation of Article 20(2) of the Constitution of India and as well under
Section 300 Cr.P.C. The learned senior counsel further submitted that there is
no evidence of appellant's involvement in any of offence whatsoever. His
further submission was that the appellant has been denied the benefit of
Section 428 of the Code of Criminal Procedure, in as much as she has neither
been given the benefit of the period of sentence undergone by her in Portugal
nor has she been given the benefit of the complete period pursuant to sentence
in Portugal i.e. after18th September, 2004, which she is legally entitled to.
11. We have also heard
the learned counsel appearing on behalf of Shaik Abdul Sattar (A-5), Mohd.
Yunis (A-7) and D.Gokari Saheb (A-8).
12. Shri P.P. Malhotra,
learned Additional Solicitor Generaland Shri I. Venkata Narayana, learned
senior counsel supported the impugned judgment. Both of them have submitted
that Article 20 (2) has no application whatsoever to the facts on hand.Double
Jeopardy
13. Now we shall take up
the first contention of Shri Tulsias to whether the appellant's guaranteed
fundamental right under Article 20 (2) has been infringed? Article 20 (2) of
the Constitution provides that no person shall be prosecuted and punished for
the same offence more than once.
14. Article 20 (2)
embodies a protection against a second trial and conviction for the same
offence. The fundamental right guaranteed is the manifestation of a long
struggle by the mankind for human rights. A similar guarantee is to be found in
almost all civilised societies governed by rule of law. The well known maxim
`nemo delset bis vexari proeadem causa' embodies the well established common
law rule that no one should be put on peril twice for the same offence. BLACKSTONE
referred to this universal maxim of the common law of England that no man is to
be brought into jeopardy of his life more than once for the same offence.
15. 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 autrefo is convict. This in essence is the common-law
principle. The corresponding provision in the American Constitution is
enshrined in that part of the Fifth Amendment which declares that no person
shall be subject for the same offence to be twice put in jeopardy of life or
limb. The principle has been recognised in the existing law in India and is
enacted in Section 26 of the General Clauses Act, 1897and Section 300 of the
Criminal Procedure Code, 1973. This was the inspiration and background for
incorporating sub-clause (2) into Article 20 of the Constitution. But the ambit
and content of the guaranteed fundamental right are muchnarrower than those of
the common law in England or the doctrine of `double jeopardy' in the American
Constitution.
16. 16. In Maqbool
Hussain vs. The State of Bombay1, this Court explained the scope of the right
guaranteed under Article 20 (2) and as to what is incorporated in it as
"with in 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. That the
proceedings contemplated therein are in the nature of criminal proceedings
before a court of law or a judicial tribunal and the prosecution in this
context would mean an initiation or starting of the proceedings of a criminal
nature in accordance with the procedure prescribed in the statute which
creates the offence and regulates the procedure. This principle is reiterated
in S.A. Venkataraman vs. The Union of India & Anr.,2 wherein this Court
observed that the words "prosecuted or punished" are not to be taken
distributive so as to mean prosecuted or punished. Both the factors must
co-exist in order that the operation of the clause may be attracted."
17. 17. What is the
meaning of expression used in Article 20(2) "for the same offence"?
What is prohibited under Article20 (2) is, the second prosecution and
conviction must be for the same offence. If the offences are distinct, there is
no question of the rule as to double jeopardy being applicable. In Leo Roy Frey
vs. Superintendent District Jail,Amritsar3, 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. They
are, therefore, quite separate offences. The Court relied on the view expressed
by the United States, Supreme Court in United States vs. Rabinowith4. In The State
of Bombay vs. S.L. Apte5, 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.
This Court made it clear that the emphasis is not on the facts "alleged in
the two complaints but rather on ingredients which constitute the two offences
with which a person is charged." The ratio of the case is apparent from the
following: "To operate as a bar the second prosecution and the
consequential punishment there under, must be for `the same offence'. The
crucial requirement therefore for attracting the Article is that the offences
are the same, i.e., they should be identical. If, however, the two offences
are distinct, then notwithstanding that the allegations of fact in the two
complaints might be substantially similar, the benefit of the ban cannot be
invoked. It is, therefore, necessary to analyse and compare not the allegations
in the two complaints but the ingredients of the two offences and see whether their
identity is made out."That the test to ascertain is whether two offences
are the same and not the identity of the allegations but the identity of the
ingredients of the offences. 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. In Bhagwan Swarupvs. State of
Maharashtra6, the accused was convicted with regard to a conspiracy to commit
criminal breach of trust in respect of the funds of one Jupiter company. There was
another prosecution against the accused for the conspiracy to lift the funds of
another company, though its object was to cover the fraud committed in respect
of the Jupiter company. This Court held that the defalcations made in the Jupiter
may afford a motive for new conspiracy, but the two offences are distinct ones.
Some accused may be common to both of them, "some of the facts proved to
establish the Jupiter conspiracy may also have to be proved to support the
motive for the second conspiracy. The question is whether that in itself would
be sufficient to make the two conspiracies the one and the same offence. The
ingredients of both the offences are totally different and do not form the same
offence within the meaning of Article 20 (2) of the Constitution and,
therefore, that Article has no relevance."
18. 18. In State of
Rajasthan vs. Hat Singh & Ors.7, this Court held that the Rajasthan Sati
(Prevention) Act, 1987 provided for different offences and punishment for
glorification of sati and for violation of prohibitory order against
glorification of sati. They are not the same offences. While Section 5 of the
said Act makes the commission of an act an offence and punishes the same; the
provisions of Section 6 are preventive in nature and make provision for
punishing contravention of prohibitory order so as to make the prevention
effective. The two offences have different ingredients. This Court held: "It
is, therefore, concluded that in a given case, same set of facts may give
rise to an offence punishable under Section 5 and Section 6 (3) both. There
is nothing unconstitutional or illegal about it."
19. This appears to be
the consistent view of the Supreme Court of the United States. In T.W. Morgan
vs. Alfonso J. Devine @ Ollie Devine8, the U.S. Supreme Court observed that the
court has settled that the test of identity of offences is whether the same
evidence is required to sustain them; if not, then the fact that both charges
relate to and grow out of one transaction does not make a single offence where
two are defined by the statutes.
20. 20. In United States
vs. Vito Lanza9, it is held that an act with respect to intoxicating liquor
which is denounced as a crime by both the National and State sovereignties may be
punished under the law of each sovereignty without infringing the
provision of the 5th Amendment to the Federal Constitution against double
jeopardy for the same offence. It is observed: "An act denounced as a
crime by both National and State sovereignties is an offence against the
peace and dignity of both, and may be punished by each ..... We have here
two sovereignties, deriving power from different sources, capable of
dealing with the same subject matter within the same territory. Each may,
without interference by the other, enact laws to secure prohibition, with the
limitation that no legislation can give validity to acts prohibited by the
Amendment. Each government, in determining what shall be an offence
against its peace and dignity, is9 (1922) 260 U.S. 314 27 exercising its own
sovereignty, not that of the other."
21. Shri K.T.S. Tulsi,
learned senior counsel in the present case before us mainly contended that the
facts based on which the appellant (Monica Bedi) was prosecuted and punished by
a competent court of jurisdiction at Lisbon and the facts based on which
prosecution has been initiated resulting in conviction are the same and,
therefore, the conviction of the appellant is in the teeth of Article 20 (2) of
the Constitution and Section 300 of the Code of Criminal Procedure. The
submission is not well founded for the simple reason that the same set off
facts can constitute offences under two different laws. An act or an omission
can amount to and constitute an offence under IPC and at the same time
constitute an offence under any other law. It needs no restatement that the bar
to the punishment to the offender twice over for the same offence would arise
only where the ingredients of both the offences are the same.
22. The question that
falls for our consideration is, 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. The charges upon which the
appellant has been convicted now, for the charges under the Indian Penal Code,
we will presume for our 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 we
have no doubt to hold that the punishment of the appellant is not for the
sameoffence.
23. 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 jurisdictional 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.
24. In Halsbury's Laws of
England, 2nd Edition, Volume-IX, the law is succinctly summarised on this
aspect of the matter as: "If the defendant pleads autrefo is convict or autrefois
acquit, the prosecution replies or demurs. If the prosecution replies, which
is the usual course, a jury is sworn to try the issue(x). The onus of
proving the plea is on the defendant (a). He may prove it by producing a
certified copy of the record or proceedings of the alleged previous
conviction or acquittal (b), and showing by such copy or by other evidence,
if necessary, that he has been convicted or acquitted of the same, or
practically the same, offence as that on which he has been arraigned (c), or
that he 30 might on his former trial have been convicted of the offence on
which he has been arraigned (d). The question for the jury on the issue is
whether the defendant has previously been in jeopardy in respect of the
charge on which he is arraigned (e), for the rule of law is that a person must
not be put in peril twice for the same offence. 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 to justify a
conviction of the other, not that the facts relied on by the Crown are the same
in the two trials (f). "
25. However, having regard
to the nature of the guaranteed right we have examined the judgment passed
by a Constitutional Court, Lisbon ( a typed copy of the same made available by
the learned senior counsel for the appellant - Monica Bedi which we believe to
be a true copy)does not support the plea of the appellant. The Constitutional
Court while considering the issue of extradition of the appellant and
the nature of the trial undergone by her in Portugal observed: [*] "It is
a fact that the appellant has been trialled in Portugal for committing an
offence provided and punishable under article 256 of the penal 31 code.
However, should any facts be found in that process and in that trial that
would release her of any guilt regarding offences based upon which she is
wanted by the requesting state, then it is not acceptable by means of a restrictive
and formal interpretation of a principle which is deemed to assume wider configurations
to authorize her extradition to trial her for facts strongly linked and which
may even coincide with those same offences. In other words, it is not
acceptable and it cannot be admitted that the appellant has been trialled and
convicted in Portugal for the commission of the offence of use of forged documents,
namely in a decision which revealed in the analysis of the facts regarding the
attainment of such documents (allegedly subsumed by India in the offences of
corruption and association) that the appellant was not involved in those
fact. Furthermore, it cannot be admitted that her extradition is authorized in
order to trial her for committing such act. Extradition process which brings
in contact a variety of legal systems and different forms of legal classification
and of behaviour punishments, but which does not allow going deeper in
those laws, as well as in the evidence based upon which the requests for
extradition were made requires a wider interoperation of the principle of ne
bis idem." It is further observed: The Indian Union claims extradition of
the appellants to trial her for the commission of an offence of criminal
conspiracy. We consider that this offence has no correspondence in our legal and
penal system and that it is not the object of an autonomous incrimination. As a
matter of fact, it constitutes a form that could be classified as joint authorship;...As
a matter of fact, we consider that such arguments have no legal basis. Because
the requesting state wants at any cost the appellants extradition, it is clear
that it is justifying its request by stating that criminal conspiracy as
opposed to what the person to be extradited claims constitutes an autonomous incrimination.
However, careful analysis of the original version of article 120 B of the
Indian Penal Code (included in the records, but attached herewith as documents
no. 1 and which is incorrectly translated into Portuguese) allows one to conclude,
with safety, that the type of conspiracy described therein as being the conduct
of someone who commits an offence associated with someone else (complicit), is
not coincident with the incorporation of a stable organization, hierarchically
defined and whose object is the commission of offences....Given that our
judiciary authorities are convinced that the question under consideration is
the charge against the appellant regarding offence subsumable under an offences
of criminal association which does not correspond to the Indian charges.
...it is not up to
the constitutional court to interpret and set out the meaning of any provisions
contained in the Indian Penal Code and establish on a final basis the scope of
criminal conspiracy, given that this would transcend the object of
constitutional rules control. Taking into consideration the reasons stated in the
appealed decision, one cannot accept the argument that the appealed courts
interpretation of article 31, no. 2 of law 144/99 of 31st August was in the
sense that the judge is not obliged to substantiate and explain (in the
decision to extradite someone claimed for the commission of offences which do
no fall within the range of offences provided under our legal system) the
reasons why the offence should be appealed decision, the appellant could not
have raised this unconstitutionality based on the different of legal
qualification of the offences that the was charged with by both legal systems
in concurrence. As a matter of fact, the question under consideration is the charge
with different offences, one should note that, besides the fact that this
statement does not faithfully reproduce what is said in the summary decision,
the two subsequent paragraphs demonstrate that the real problem does not
involve the facts but rather the different legal classification
thereof."[* There are number of typographical errors and mistakes in construction
of sentences and we did not correct the same and extracted as it is from the
copy supplied.]
26. In the light of these
findings and conclusions reached by the Constitutional Court at Lisbon and on a
careful consideration of the entire matter and the facts placed before us, we
are of the considered opinion that the appellant’s plea of double jeopardy is
wholly untenable and unsustainable. This point is accordingly answered against
the appellant.Merits:
27. Now we shall proceed
to consider as to whether the courts below committed any error in convicting
and sentencing the appellant for the charged offences? Is there on evidence
against the appellant as contended by the learned senior counsel? 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.
28. The simple case of
the prosecution is that all the appellants entered into a conspiracy in order
to secure a passport in the assumed name of Sana Malik Kamal, for the benefit
of Monica Bedi so as to enable her to utilize the same to leave the country and
travel abroad. There is no controversy whatsoever that Monica Bedi travelled
abroad on the strength of the passport secured by her in the assumed name. She
entered Portugal with the aid of passport standing in the name of Sana Malik
Kamal for which she has to face the prosecution and suffer conviction and
sentence in Portugal.
29. 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.
Exhibit P2 is the passport application submitted in the assumed name of Sana
Malik Kamal which contains the photograph of Monica Bedi (A-3). Essential
requirements for obtaining the passport are: (1) passport application; (2)
proof of residence and (3) date of birth certificate as spoken to by PWs. 2, 3,
21 and 31. How these documents are obtained for the benefit of Monica Bedi has-been
clearly brought on record through a number of witnesses whose evidence remained
un impeached. It is Mohd. Yunis (A-7), the Mandal Revenue Inspector who verified
the residence particulars of Sana Malik Kamal on the instructions of PW-5,
Mandal Revenue Officer, Kurnool and submitted a false verification report based
on which exhibitP9 residence certificate was issued by PW-5. PW-17 on requisition
from C.B.I officials once again got verified and issued exhibit P30 certificate
to the effect that no person byname Sana Malik Kamal resides in the house as
earlier submitted by Mohd. Yunis (A-7). PW-37 is the Investigating Officer who
in his evidence stated that he verified the particulars of occupants of the
said house in the presence ofPW-27 (D.V. Ratnamaiah), Assistant Superintendent
of Post Offices, Kurnool and found no such person named Sana Malik Kamal ever
resided therein. It is based on this evidence the trial court and appellate
court came to the right conclusion that the prosecution established its case
that it is Mohd. Yunis (A-7) who gave false verification based on which exhibit
P9 residence certificate was issued by PW-5 in the name of Sana Malik Kamal.
The trial court convicted Mohd. Yunis (A-7) for the offence under Section 468
IPC which reads as under: "468. Forgery for purpose of cheating. -
Whoever commits
forgery, intending that the document or electronic record forged shall be used
for the purpose of cheating, shall be 38 punished with imprisonment of either
description for a term which may extend to seven years, and shall also be
liable to fine." Section 463 defines forgery, which reads as under: "463.
Forgery.- Whoever makes any false documents or false electronic record or
part of a document or electronic record, 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 or that fraud may be
committed, commits forgery."
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30. 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 documents implicit or
punishable under Section 465 IPC. In our considered opinion, 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.
31. That 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. It is under those circumstances the courts below came to the
right conclusion that evidence available on record clearly establish that he
participated in the conspiracy in securing the passport for Monica Bedi in the
assumed name of Sana Malik Kamal. Thus the conviction of D. Gokari Saheb (A-8) for
the charged offences is accordingly upheld. We do not find any 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 6months rigorous
imprisonment under each count while maintaining the fine amount.
32. Shaik Abdul Sattar
(A-5) is the Head Constable who submitted exhibit P15 report. PW-7, PW-8 and
PW-14 are the material witnesses examined by the prosecution to prove the accusations
leveled against A-5. PW-7 at the relevant time was Junior Assistant in the
District Police Office, Kurnool who speaks about entrustment of the verification
of the passport application in respect of Sana Malik Kamal to A-5. He also
speaks about A-5 submitting Exhibit P15 inquiry report together with statements
of persons purported to have been recorded by him in exhibitP16 and P17. There
is absolutely nothing on record to disbelieve the evidence of PW-7 who stated
in his evidence that A-5 submitted exhibit P15 report knowing it to be a false
one apart from certifying that Sana Malik Kamal was residing at that particular
house in Kurnool and was not involved in any civil and criminal cases and there
was nothing adverse against her. PW-8 was working as Inspector of Police,
District Special Branch, Kurnool who prepared exhibit P18 letter on the basis
of exhibit P15 inquiry report submitted by A-5. PW-14 is the Sub-Inspector,
DistrictSpecial Branch, Kurnool who testified that A-5 submitted exhibit P15
report and it bears signature of A-5. The courts below held that the evidence
of PW-7, PW-8 and PW-14 is cogent and consistent which in clear and categorical
terms prove the fact that A-5 is the person who verified the passport
application particulars of Sana Malik Kamal and submitted exhibit P15 inquiry
report along with exhibit P16and exhibit P17 enclosures. There cannot be any
doubt whatsoever that A-5 submitted a false report in order to enable Monica
Bedi to secure a passport for herself in the assumed name of Sana Malik Kamal.
His conviction for the charged offences is accordingly upheld. The High Court
however, reduced the sentence awarded by the trial court to one year rigorous
imprisonment under each count while maintaining the fine imposed by the trial
court. The sentence awarded under Section 13 (1) (d) r/w 13 (2) of Prevention
of Corruption Act has been confirmed. Having regard to the facts and
circumstances of the present case, we however, reduce the sentence to that of
six months rigorous imprisonment under each count while maintaining the fine
imposed by the trial court and the sentence to suffer imprisonment, in default,
of payment of fine. Sentences are directed to run concurrently.Case of Monica
Bedi - Appellant in Criminal Appeal No.782/2007:
33. 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. We
do not find any 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. The sequence
of events as unfolded bythe evidence, which we do not want to recapitulate once
again as we have noticed the same in detail in the precedingparagraphs, clearly
prove the charges leveled against Monica Bedi. It is for her benefit that the
entire conspiracyhas 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. Shri Tulsi, however, reiterated the submission which he made
before the High Court that exhibit P50 is a Photo stat copy of the passport in
the name of Sana Malik Kamal and the same is inadmissible document as it is not
authenticated by legal keeper as provided under Section 78 (6) of the Indian
Evidence Act. The submission was that based on such inadmissible document no
prosecution could be launched and once it is to be held that the said
document is not admissible the whole case of the prosecution collapses like a
pack of cards. The High Court after elaborate consideration of the matter came
to the right conclusion that Section 78 (6) of the Evidence Act, 1872 deals
with public document of any other class in a foreign country. In the present
case, the original of exhibit P50 is the passport issued by the competent
authorities in this country and, therefore, Section 78 (6) has no application
whatsoever to the facts of this case. The issuance of original of exhibit
P50passport is clearly proved. It is based on that passport Monica Bedi
travelled abroad and entered Portugal for which she has to face a prosecution
and suffer conviction and sentence. The prosecution cannot be held to be
vitiated. We accordingly reject the contention and uphold the conviction of the
appellant for the offence punishable under Sections 120B, 419 and 420 IPC. The
High Court, however, reduced the sentence of imprisonment imposed on the appellant
- Monica Bedi (A-3) as noticed in the preceding paragraphs. The High Court also
held that she is entitled for set off of the periods of detention suffered by
her in Lisbon i.e. from 18.9.2004 to 4.6.2005 and 3.11.2005 to10.11.2005.
However, having
regard to the facts and circumstances of the case and the fact that she had
undergone more than2 = years of sentence, we consider it appropriate to reduce the
sentence to that of already undergone by her while maintaining fine amount
imposed by the courts below.
34. In the view we have
taken it is not necessary to go into the question as to the interpretation of
Section 428 Cr.P.C and her entitlement to set off against the sentence imposed on
her. Conclusion:
35. Criminal Appeal NO.
782 of 2007 ( Monica Bedi -A-3) 47 For all the aforesaid reasons, we confirm
the conviction of Monica Bedi (A-3) under Sections 120B, 419 and 420 IPC. The
sentence awarded under each count directed to run concurrently is reduced to
that of the period already undergone by her while maintaining the sentence of
fine awarded by the courts below. The bail bonds shall stand cancelled. The
appeal is, accordingly, partly allowed. Criminal Appeal NO. 784 of 2007 ( Shaik
Abdul Sattar- A-5) The conviction of Shaik Abdul Sattar (A-5) under Sections
120B, 419 r/w 109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1)
(d) r/w 13(2) of the Prevention of Corruption Act is, accordingly, upheld.
However, the sentence awarded under each count is reduced to that of six months
rigorous imprisonment while maintaining the fine imposed by the courts
below. Sentences are directed to run concurrently. He shall surrender before he
trial court to serve the remaining sentence, if any. The appeal is,
accordingly, partly allowed. Criminal Appeal NO. 1357 of 2007 ( Mohd. Yunis -
A-7) Mohd. Yunis (A-7) is acquitted for the offence under Section 465 IPC and
sentence awarded is set aside. The bail bonds shall stand cancelled. The appeal
is, accordingly, allowed. Criminal Appeal NO. 783 of 2007 ( D. Gokari Saheb
-A-8) The conviction of D. Gokari Saheb (A-8) under Sections 120B, 419 r/w
109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1) (d) r/w 13(2)
of the Prevention of Corruption Act is, accordingly, upheld. However, the
sentence awarded under each count is reduced to that of six months rigorous
imprisonment while maintaining the fine imposed by the courts below.
Sentences are directed to run concurrently. He shall surrender before the trial
court to serve the remaining sentence, if any. The appeal is, accordingly,
partly allowed.
.................................. ........J. (B. SUDERSHAN REDDY)
..........................................J. (SURINDER SINGH NIJJAR)
New
Delhi,
November
09, 2010.
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