Tuesday, 21 July 2020

Whether the second trial of accused under the Prevention of Corruption Act is maintainable if the first trial was invalid for want of sanction for prosecution?

In Baij Nath Tripathi v. The State of Bhopal and Anr. (MANU/SC/0099/1957 : AIR 1957 SC 494), a Constitution Bench of this of Court was dealing with the case of a sub-inspector of police from the then State of Bhopal, who was prosecuted by the Special Judge, Bhopal and convicted of offences punishable Under Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act, 1947. He was sentenced by the Trial Court to undergo nine months' rigorous imprisonment on each count. In an appeal before the Judicial Commissioner against the said conviction and sentence, it was held that since no sanction according to law had been given for the prosecution of the accused, the Special Judge had no jurisdiction to take cognizance of the case and that the trial was invalid and void ab-initio, hence quashed relegating the parties to the position as if no legal charge-sheet had been submitted against the Appellant. The accused was then tried for a second time before another Special Judge to which prosecution, the accused took exception on the ground that a second trial was impermissible having regard to the provisions of Article 20(2) of the Constitution of India and Section 403 of the Code of Criminal Procedure. A similar contention was raised by Sudhakar Dube, another Sub-Inspector of Police who was similarly tried and prosecuted but the Special Judge finding the sanction order to be incompetent had quashed the proceedings. Dube was also thereupon sought to be tried for the second time which second trial was assailed by him in writ petition before this Court. The short question that fell for consideration in the above backdrop, was whether the Petitioners had been prosecuted and punished within the meaning of Article 20 of the Constitution of India or tried by a Court of competent jurisdiction within the meaning of Section 403(1) of the Code of Criminal Procedure. It was urged on behalf of the Respondent, that in case the previous trial was null and void and non-est, a second trial was legally permissible. That contention found favour with the Court. Relying upon Yusofalli Mulla v. The King MANU/PR/0016/1949 : AIR 1949 PC 264, Basdeo Agarwalla v. King Emperor MANU/FE/0002/1945 : AIR 1945 FC 16 and Budha Mal v. State of Delhi Criminal Appeal No. 17 of 1952, it was held that the accused had neither been tried by a Court of competent jurisdiction nor was there any accusation or conviction in force within the meaning of Section 403 of Code of Criminal Procedure to stand as a bar against their prosecution for the same offences.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1867 of 2012

Decided On: 24.07.2015

 Nanjappa  Vs.  State of Karnataka

Hon'ble Judges/Coram:
T.S. Thakur and Amitava Roy, JJ.

Citation :AIR 2015 SC 3060,MANU/SC/0788/2015
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