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2003(2) Supreme 472
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Shiv Parshad Pandey -Appellant
versus
C.B.I. through Director, New Delhi -Respondent
Criminal Appeal Nos. 788-789 of 1999
Decided on 5-3-2003
Counsel for the Parties :
For the Appellant : P.S. Mishra, Sr. Advocate, Shiv Pujan Singh, Vishnu Sharma and Tathagat H. Vardhan, Advocates.
For the Respondent : P.P. Malhotra, Sr. Advocate, Tufail A. Khan, P. Parmeswaran and Mukund Sharma, Advocates.
Held : Bearing in mind the above provisions of the Act and the Rules applicable to the facts in this appeal, if we consider the argument of the learned counsel for the appellant, then we notice as on the date when Special Court, CBI took cognizance of the complaint against the appellant, he was not a person subject to the BSF Act and the competent authority under that Act had not initiated any trial against the appellant. What actually had happened was that on a complaint made by Assa Singh, a preliminary fact finding enquiry was initiated which body recommended further proceedings against the appellant, but the IG who received the report recommended the awarding of a minor punishment of severe reprimand. But the competent authority did not accept either of the recommendations but allowed the appellant to be repatriated to his parent department, consequently on the lapse of six months after his repatriation under Section 77(2) of the BSF Act, the BSF authorities ceased to have any disciplinary jurisdiction on the appellant since he ceased to be subject to the said Act. After that period, the appellant became subject to other laws of the land. Therefore, the Special Court, CBI had the jurisdiction to entertain a complaint against the appellant. The further argument of the appellant that because of Section 80 and 81 of the BSF Act it is only the Security Forces Court under the BSF Act that has the jurisdiction to try the appellant has also to be negatived. The next argument of the learned counsel for the appellant is that in fact the authorities under the BSF Act had already punished the appellant by recommending the recording of a severe displeasure of Director General, therefore, the CBI or for that matter the Special Court could not have entertained another complaint of Assa Singh on the same facts which would amount to a second trial. We have already noticed that the recommendation of IG for severe displeasure was never accepted by the competent authority, hence, there is no question of a second trial by the CBI Court. (Para 21)
Held finally : For the reasons stated above, we are of the opinion that since the appellant had ceased to be an Officer of the BSF on the date of his repatriation, he was no more subject to the BSF Act. We are also of the opinion that the authorities under the BSF Act had not initiated any trial against the appellant on the complaint of Assa Singh. Consequently, a Special Judge, CBI had the jurisdiction to take cognizance of the report filed by the CBI and also to frame charges against the appellant. In the said view of the matter, these appeals fail and the same are dismissed. (Paras 24 and 25)
JUDGMENT
Santosh Hegde, J.-These appeals are filed against the judgment and order dated 14th of September, 1988 made by the High Court of Punjab and Haryana at Chandigarh in Criminal Revision No. 805 of 1998 and Criminal Misc. No.21520-M of 1997. In those proceedings, the appellant had challenged the order dated 8.7.1998 made by the learned Special Judge, C.B.I., Patiala by which charges were framed against the appellant under Sections 7 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The appellant sought for quashing of the said charges framed by the learned Special Judge, C.B.I., Patiala. But the High Court by the impugned order had dismissed the said petitions.
2. The facts necessary for the disposal of these appeals are as follows:
The appellant belongs to the Indian Police Service from Madhya Pradesh Cadre. While so serving, the appellant was deployed on deputation in the Border Security Force (BSF) in the year 1992. While he was in the BSF, one Assa Singh made a complaint to the authorities of the BSF alleging certain misconduct of accepting illegal gratification for showing official favour against the appellant. Based on the said complaint of Assa Singh, a court of enquiry was ordered by the BSF authorities on 27th of June, 1995 and an Additional DIG/ Commandant STC BSF Khargaon was appointed as Staff Court of Inquiry (SCOI) for that purpose. The said SCOI examined certain witnesses including the complainant Assa Singh and made a recommendation to the higher authorities that necessary disciplinary action may be taken against the appellant herein as per law. On the said recommendation of SCOI, the Inspector General, BSF, Jalandhar on 13th of May, 1996 recommended that instead of initiating further action the appellant may be awarded Director General s "Severe Displeasure" for the misconduct committed by the appellant.
3. Before any further action could be taken either on the recommendations of the SCOI or the DIG, the appellant was repatriated to his parent cadre of M.P. Police on 16th of July, 1996. In the meantime, the complainant Assa Singh filed another complaint against the appellant before the C.B.I., on the same fact on which he had made the earlier complaint to the BSF authorities. The CBI on completing investigation filed a charge-sheet before the competent court on 23rd of April, 1997. Based on the report filed by the CBI, the Special Judge, CBI, Patiala on 8.7.1998 framed charges and issued the charge-sheet to the appellant. It is against the said framing of charges the appellant had filed quashing petition before the High Court of Punjab and Haryana. Since the Special Judge refused to stay the proceedings before him during the pendency of the petition before the High Court, the appellant also filed a connected Misc. Petition praying for staying of the proceedings before the Special Judge, CBI, Patiala. It is those petitions which were disposed of by the High Court by the impugned order.
4. Before the High Court the appellant had contended in view of the provisions of Section 52 read with Section 57 of the Border Security Force Act, 1968 (the BSF Act), the appellant cannot be prosecuted before the Special Judge because the appellant was already tried and awarded a minor punishment of severe displeasure under Section 53 of the BSF Act, therefore, there cannot be a second proceeding on the very same charge under the Prevention of Corruption Act by the CBI. The High Court noticing the fact that the award of DG s Severe Displeasure" by the DIG BSF was only a recommendation and not actually an award of punishment under the BSF Act rejected the said contention advanced on behalf of the appellant. It also noticed the fact that what transpired before the BSF authorities was only a court of enquiry which was a preliminary fact finding step as per the BSF Act and before any steps could be taken for awarding any punishment to the appellant under the BSF Act, he was repatriated to his pare
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