Double Jeopardy| Prosecution Failed To Obtain Prior Consent Of State Govt. Necessary To Prosecute, Trial Is Unlawful: SC
The Supreme Court while allowing criminal appeals filed by the accused against the judgment passed by the Kerala High Court in a Double Jeopardy case held that the prosecution has failed to obtain the prior consent of the State Government necessary to prosecute the accused and hence his trial is unlawful.
The two-Judge Bench comprising Justice B.R. Gavai and Justice B.V. Nagarathna stated –
"It has already been observed hereinabove that the allegations/offences in the instant cases are the same as the allegations/offences in the previous three cases, therefore as per the mandate under Section 300(2) of the CrPC, the consent of the State Government is necessary. Even if it is assumed for the sake of argument that the allegations are different in present cases from those in the previous cases, the prosecution has failed to obtain the prior consent of the State Government necessary to prosecute the accused-appellant and therefore the trial in the instant case is unlawful."
The Bench further held that the charges framed against the accused reveal that there were several acts of misappropriation and falsification of accounts however the same were committed in the same transaction as the one for which he was prosecuted in the year 1999 and that the series of acts alleged against him are connected to one another.
The Court also stated, "Applying the said provision to the present case, it is noted that earlier the petitioner was tried in C.C. No.12 of 1999, C.C. No. 13 of 1999 and C.C. No.14 of 1999 for the offences under Section 13(1)(c) read with Section 13(2) of the Act as well as under Sections 409 and 477A of the IPC. In C.C. No. 24 of 2003 and C.C. No. 25 of 2003, the appellant is being tried once again for the offences under Section 13(1)(c) read with Section 13(2) of the Act and Section 409 of the IPC for the same period. There is no material on record to demonstrate that C.C. No.24 of 2003 and C.C. No.25 of 2003 have been initiated pursuant to the consent of the State Government. It is also not brought on record that the C.C. No.24 of 2003 and C.C. No.25 of 2003 is for any distinct offence for which a separate charge had been made against the appellant and the earlier trials."
Advocate Adolf Mathew appeared on behalf of the appellant i.e., the accused while Advocate C.K. Sasi appeared for the respondent i.e., the State.
Brief Facts –
In this matter, the Kerala High Court upheld the Trial Court's decision by dismissing the appeals filed by the accused and consequently confirmed his conviction. The Trial Court had convicted the accused for the offences under Section 13(2) r/w Section 13(1)(c) of the Prevention of Corruption Act, 1988 (PCA) and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- and in default thereof, to undergo rigorous imprisonment for six months. The accused was further convicted for the offence under Section 409 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees 2,000/- and in default thereof, to undergo rigorous imprisonment for six months. The sentences were directed to run concurrently.
The accused was working as an Agricultural Officer at State Seed Farm, Perambra, for the period and was alleged to have abused his official position as a public servant and committed criminal breach of trust, and misappropriated an amount of Rs.20,035/- by not remitting the same to the Sub-Treasury, Perambra. The inspection report was submitted to the Director of Agriculture. Based on the said report, an enquiry was conducted by the vigilance department and a criminal case was registered against the accused. On completion of the investigation, the Vigilance and Anti-Corruption Bureau submitted three reports. The Accounts Officer conducted an audit of the State Seed Farm and gave a report. Based on the same, the two cases, out of which the present appeal arose, were registered against the accused. The FIR in respect of the present cases was registered and therefore the two cases were registered against the accused. The accused filed an application for a joint trial which was allowed and therefore both cases were tried together.
The counsel for the appellant submitted that the High Court was not right in confirming the judgment of conviction and sentence passed by the Trial Court and the impugned judgments suffer from legal as well as factual infirmities and the findings therein are perverse and are liable to be set-aside, and the appellant is liable to be acquitted. On the other hand, the counsel for the respondent supported the impugned judgment and order passed by the High Court and judgment of the Trial Court and contended that the Courts have rightly perceived and assessed the evidence on record.
The Supreme Court after hearing contentions from both parties noted, "The Trial Court has erred in holding that the facts of previous case and misappropriation committed by the accused are not the same as the facts relevant to present case. … The re-audit was done for the period from 01.04.1992 to 31.12.1994. The charges in the present case are for relevant period from 27.04.1992 to 25.08.1992 and 01.03.1993 to 12.04.1994 which time period is same as in the previous three cases, that is, 28.03.1994 to 02.04.1994, 15.12.1992 to 31.03.1993 and 05.03.1994 to 08.03.1994 respectively."
The Court further noted that the present cases pertain to the same set of facts and are in respect of same offences, for the same period, committed in the same capacity as the previous three cases wherein the appellant was already prosecuted in the year 1999 and hence, agreed with the appellant's contention.
The Court also observed, "Having re-appreciated the evidence of the witnesses and on considering the contentions of the rival parties, we find that the High Court was not justified in affirming the judgment of conviction and sentence passed by the Trial Court. In view of the aforesaid discussion, we find that the Trial Court as well as the High Court were not right in convicting and sentencing the appellant herein and therefore, the impugned judgments are liable to be set aside."
Accordingly, the Apex Court quashed the proceedings, set aside the judgment of the High Court, allowed the present appeals, and disposed of the pending applications.
Cause Title - T.P. Gopalakrishnan v. State of Kerala