IMPORTANT POINTS
1. 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.
2. It is not the function of Apex 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.

Headnote:Constitution of India - Article 20(2) – Criminal Procedure Code,1973-Section 300 -Indian Penal Code,1860-Sections 120-B, 419 and 420 r/w Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act-Prosecution of A 3 for obtaining a second passport in the assumed name of Sana Malik Kamal from Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate with the help of A-4 to A-9-Prosecution case that she used the passport to travel Lisbon, Portugal-Conviction of A3 along with others by Trial Court- On appeal High Court confirmed conviction of A-3 for offences punishable under Sections 120-B, 419 and 420 IPC but reduced the sentence -Appeals thereagainst-Plea that facts based on which appellant was prosecuted and punished by a competent court of jurisdiction at Lisbon and facts based on which prosecution had been initiated resulting in conviction were the same and, hence conviction of appellant was in the teeth of Article 20 (2) of Constitution and Section 300 of Code of Criminal Procedure- However said plea held to be not well founded as 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- Bar to the punishment to offender twice over for the same offence would arise only where the ingredients of both the offences are the same- Again fundamental right guaranteed under Article 20 (2) of Constitution is in the nature of an injunction against State prohibiting it to prosecute and punish any person for same offence more than ones but the initial burden is upon the accused to take the necessary plea and establish the same-However no factual foundation was laid as such by appellant taking this plea before trial court-Nothing was suggested to the Investigating Officer or to any of the witnesses that she was sought to be prosecuted and punished for the same offence for which she had been charged and convicted by a competent court of jurisdiction at Lisbon-She did not even make any such statement in her examination under Section 313 Cr.P.C. - 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 held that appellant’s plea of double jeopardy was wholly untenable and unsustainable (Paras 21 to 23, 26)
        Indian Penal Code,1860-Sections 120-B, 419 and 420 r/w Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act-Prosecution of A 3 for obtaining a second passport in the assumed name of Sana Malik Kamal from Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate with the help of A-4 to A-9-Prosecution case that she used the passport to travel Lisbon, Portugal-Conviction by Trial Court- On appeal High Court confirmed conviction of A-3 for offences punishable under Sections 120-B, 419 and 420 IPC but reduced the sentence -Appeals thereagainst-So far as A3 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 had been hatched only with a view to secure a passport for A3 in the assumed name of Sana Malik Kamal- No merit found in submission that there was no evidence whatsoever against A3 to prove her involvement for the offence punishable under Sections 120B, 419 and 420 IPC - The sequence of events clearly proved the charges levelled against A3- It was for her benefit that the entire conspiracy had 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-No material to differ with the findings and conclusions concurrently arrived at by courts below-Conviction of A-3 under Sections 120B, 419 and 420 IPC confirmed -The sentence awarded under each count directed to run concurrently reduced to that of period already undergone by her while maintaining sentence of fine awarded by the courts below (Para 33, 35)
        Evidence Act, 1872- Section 78 (6)- Prosecution of A 3 for obtaining a second passport in the assumed name of Sana Malik Kamal from Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate with the help of A-4 to A-9-Prosecution case that she used the passport to travel Lisbon, Portugal-Conviction by Trial Court- On appeal High Court confirmed conviction of A-3 for the offences punishable under Sections 120-B, 419 and 420 IPC but reduced the sentence -Appeals thereagainst-Plea that exhibit P50 being a photostat copy of the passport in the name of Sana Malik Kamal and same was inadmissible document as it was not authenticated by legal keeper as provided under Section 78 (6) of Indian Evidence Act-Held High Court after elaborate consideration of matter came to right conclusion that Section 78 (6) of the Evidence Act, 1872 deals with public document of any other class in a foreign country- Instantly original of exhibit P50 being the passport issued by the competent authorities in this country , Section 78 (6) held to have no application whatsoever to facts of case- The issuance of original of exhibit P50 passport was clearly proved- It was based on that passport A3 travelled abroad and entered Portugal for which she had to face a prosecution and suffer conviction and sentence- The prosecution could not be held to be vitiated-Hence said contention held unsustainable (Para 33)
       Facts of the Case :
        A 3 was prosecuted herein in the instant case for Obtaining a second passport in the assumed name of Sana Malik Kamal from Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate with the help of A-4 to A-9.As per Prosecution case she used the passport to travel Lisbon, Portugal. A3 along with others was convicted by Trial Court. On appeal High Court confirmed conviction of A-3 for offences punishable under Sections 120-B, 419 and 420 IPC but reduced the sentence.
        2. Present Appeals have been filed against said order of High Court. Plea of appellant that facts based on which appellant was ‘prosecuted and punished by a competent court of jurisdiction at Lisbon and facts based on which prosecution had been initiated resulting in conviction were the same and, hence conviction of appellant was in the teeth of Article 20 (2) of Constitution and Section 300 of Code of Criminal Procedure.
       Findings of the Court :
        Plea of appellant held to be not well founded as 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. Bar to the punishment to offender twice over for the same offence would arise only where the ingredients of both the offences are the same. Again fundamental right guaranteed under Article 20 (2) of Constitution is in the nature of an injunction against State prohibiting it to prosecute and punish any person for same offence more than ones but the initial burden is upon the accused to take the necessary plea and establish the same. However no factual foundation was laid as such by appellant taking this plea before trial court. Nothing was suggested to the Investigating Officer or to any of the witnesses that she was sought to be prosecuted and punished for the same offence for which she had been charged and convicted by a competent court of jurisdiction at Lisbon.She did not even make any such statement in her examination under Section 313 Cr.P.C. 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 held that appellant’s plea of double jeopardy was wholly untenable and unsustainable.
        So far as A3 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 had been hatched only with a view to secure a passport for A3 in the assumed name of Sana Malik Kamal. No merit was found in submission that there was no evidence whatsoever against A3 to prove her involvement for the offence punishable under Sections 120B, 419 and 420 IPC. The sequence of events clearly proved the charges levelled against A3. It was for her benefit that the entire conspiracy had 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. No material was found to differ with the findings and conclusions concurrently arrived at by courts below. Conviction of A-3 under Sections 120B, 419 and 420 IPC was confirmed .The sentence awarded under each count directed to run concurrently was reduced to that of period already undergone by her while maintaining sentence of fine awarded by the courts below.
       Result : Appeals partly allowed

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 whereunder the High Court confirmed the conviction of the appellants under Section 120-B, 419 and 420 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 Special Judge took the charge sheet on file as C.C. No. 3 of 2005 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.

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) 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.

4. The prosecution in order to substantiate the charges examined altogether 38 witnesses and proved 79 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/w 109, 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 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. 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 mo

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2010 Supreme(SC) 1071

Cases Referred (5)