Deciding Authority: Supreme Court of India
Name of the Judges: Justice B. Sudershan Reddy, Justice Surinder Singh Nijjar
Date of Judgment: 9 November 2010
Facts of the Case: The CBI, 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 Special Judge took the charge sheet on file and issued non-bailable warrants against A-1, A-2, A-3, A-6 and 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.
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/w 109, 420 r/w 109, 468 IPC and Sections 13(1) (d) r/w 13 of the Prevention of Corruption Act;
- Mohammed Yunis (A-7) guilty of the offence under Section 468 IPC
- Gokari Saheb (A-8) guilty of the offences under Section 120B, 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.
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 Sections 120-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 120B IPC, 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. The High Court while partly allowing the appeal for A-7 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. The High Court confirmed conviction of A-8 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, 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) r/w 13 (2) of the Prevention of Corruption Act was confirmed. Hence, they appealed before the Supreme Court.
Judgment: The first contention of Shri Tulsi on behalf of appellant was whether the appellant’s guaranteed fundamental right under Article 20 (2) was infringed? Article 20 (2) embodies a protection against a second trial and conviction for the same offence. 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 pro eadem causa’ embodies the well established common law rule that no one should be put on peril twice for the same offence. The ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of `double jeopardy’ in the American Constitution. What is prohibited under Article 20 (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. 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. 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.
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. The simple case of the prosecution was 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 was 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. 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. The court did not find any reason whatsoever to interfere with the view taken by the High Court. So far as the appellant – Monica Bedi was concerned she was 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. The prosecution could not be held to be vitiated. The Court accordingly upheld the conviction of the appellant for the offence punishable under Sections 120B, 419 and 420 IPC. The High Court also held that she was 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 to 10.11.2005. However, having regarded to the facts and circumstances of the case and the fact that she had undergone more than 2 years of sentence; the Court considered it appropriate to reduce the sentence to that of already undergone by her while maintaining fine amount imposed by the courts below.
Decision: The Court confirmed the conviction of Monica Bedi (A-3) under Sections 120B, 419 and 420 IPC. The sentence awarded under each count directed to run concurrently was reduced to that of the period already undergone by her while maintaining the sentence of fine awarded by the courts below. The bail bonds stood cancelled. The appeal was partly allowed.
By: Roopali Mohan, 2nd Year, Vivekananda Institute of Professional Studies, New Delhi