IMPORTANT POINTS
‘Same kind of offence’ and ‘same offence’ – Distinction.
In a Substantive offence of defalcation where conspiracy is an allied offence and parties are different, issue of estoppel does not arise.
Conspiracy may be general or separate; larger and smaller conspiracy and may develop in successive stages involving different accused persons.
There cannot be contradicting decisions in two cases on same facts, same question of law ignoring binding decisions of Supreme court.
It would be premature to raise plea of issue of estoppel before evidence is recorded for different sets of accusations of different offences for different periods.
CBI ought to act with more circumspection and following its Manual.

Headnote:(a) Constitution of India – Article 20(2) r/w section 300, 212, 219, 220 and 221, Code of Criminal Procedure, 1973 – Autrefois convict and Autrefois acquit – Instant is a case of prosecution and punishment for the “same offence” more than once – General conspiracy hatched for the period 1988 to 1996 – But defalcations from different treasuries for different financial years by exceeding the amount of each year allocated for Animal Husbandry Department for each of the district – Amount involved is different – Fake vouchers, fake allotment letters, fake supply orders had been prepared with the help of different sets of accused persons – Despite there being one general conspiracy, offences are distinct for different periods – ‘Same kind of offence’ and ‘same offence’ – Distinction – Separate trials for different years covering the period of more than one year – Separate charges for distinct offences must be framed separately and they cannot be clubbed together for more than one year – Instantly all defalcation not the same transaction being concerned with different treasuries – Section 221 not attracted. (Para 23, 31)
       26 (1984) DLT 64; AIR 1965 SC 1248; 1965 (2) AER 448; (1964) 3 SCR 297; (1964) 2 SCR 378 – Relied upon
       (1996) 3 SCC 682; (2001) 9 SCC 432; (2003) 11 SCC 786; (1961) 3 SCR 107; (1970) 2 SCC 905; (2003) 11 SCC 786; (2002) 9 SCC 372; AIR 1970 SC 45; (2001) 6 SCC 181; (2013) 6 SCC 348; 1922 ILR 924; 1920 ILR 17 – Referred
       (b) Estoppel – Substantive offence of defalcation – Conspiracy an allied offence – Parties are different – Issue of estoppel does not arise. (Para 30)
       (c) Indian Penal Code, 1860 – Section 120-B r/w section 212, 219, 220 and 300, Code of Criminal Procedure, 1973 – Conspiracy may be general or separate – There may be larger and smaller conspiracy – Conspiracy may develop in successive stages involving different accused persons – Instantly defalcations made in various years by combination of different accused persons – Calls for separate trials – Not a case of double jeopardy – Separate offences would not become single offence merely because modus operandi was the same. (Para 32, 33, 35, 39)
       (1979) 2 SCC 322; (1964) 4 SCR 673; (1953) SCR 730; (1961) 3 SCR 107; (1969) 3 SCR 65; (1988) 3 SCC 467; (1988) 4 SCC 655; (2003) 2 SCC 152; (2011) 1 SCC 284; (2012) 7 SCC 621; (2013) 16 SCC 574; (2014) 9 SCC 772 – Relied upon
       AIR 1957 SC 340; AIR 1967 SC 450; AIR 1970 SC 45 – Distinguished
       (d) Code of Criminal Procedure, 1973 – Section 300 – Issue estoppel – Doctrine of Autrefois acquit – It would be premature to raise plea of issue of estoppel before evidence is recorded for different sets of accusations of different offences for different periods. (Para 40, 49)
       (1967) 2 QB 459; (1974) 1 SCR 793; (1976) 2 AER 497; (2013) 9 SCC 245 – Relied upon
       (1950) AC 458; AIR 1965 SC 87; AIR 1956 SC 415 – Referred
       (1922) ILR 49 Cal 924; AIR 1962 SC 1153; (1971) 2 SCR 619 – Distinguished
       (e) Administration of justice – Judicial discipline – Same facts, same question of law in the same cases – Contradicting decisions in two cases – Ignoring binding decisions of Supreme court – Not proper – Court ought to have been careful – Interference at advanced stage of the case – Wholly unwarranted and uncalled for . (Para 50)
       (f) Constitution of India – Article 136 – Delay and latches – Delay of 113, 157 and 222 days in filing respective appeals by the CBI – Delay sufficiently explained – Considering the facts and circumstances of the case, gravamen of matter and also the divergent views taken by the same Judge of the High Court in the same case vis-à-vis different accused persons on same question the case cannot be thrown away on the ground of delay – However, CBI ought to acted with more circumspection and followed its Manual – Delay condoned – CBI reprimanded. (Para 55, 57)
       (2012) 3 SCC 503; (2014) 2 SCC 422; (1981) 1 SCC 495; (2008) 17 SCC 448; (1993) 1 SCC 572; (1998) 1 SCC 226; (2007) 7 SCC 394; (2010) 9 SCC 368; (2014) 11 SCC 709; (2010) 14 SCC 419; (2005) 3 SCC 752 – Referred
       Facts of the case:
       The appeals arise out of three separate judgments and orders of learned Single Judge of High Court of Jharkhand at Ranchi discharging three accused persons namely; Lalu Prasad Yadav, Sajal Chakraborty and Dr. Jagannath Mishra on the ground of their conviction in one of the criminal cases arising out of fodder scam of erstwhile State of Bihar. Applying the provision under Article 20(2) of the Constitution of India and Section 300 of Code of Criminal Procedure, 1973, the High Court has quashed RC No.64A/96 against Lalu Prasad Yadav, four cases against Dr. Jagannath Mishra being RC Nos.64A/96, 47A/96, 68A/96 and 38A/96 and two cases against Sajal Chakraborty being RC Nos.20A/96 and 68A/96 on the ground that they have been convicted in one of the cases for offences involving the same ingredients with respect to Chaibasa treasury.
       Finding of the Court:
       Impugned judgment is erroneous.
       Result: Appeals allowed.

JUDGMENT :

Arun Mishra, J.

1. The appeals arise out of three separate judgments and orders of learned Single Judge of High Court of Jharkhand at Ranchi discharging three accused persons namely; Lalu Prasad Yadav, Sajal Chakraborty and Dr. Jagannath Mishra on the ground of their conviction in one of the criminal cases arising out of fodder scam of erstwhile State of Bihar. Applying the provision under Article 20(2) of the Constitution of India and Section 300 of Code of Criminal Procedure, 1973 (for short ‘the Cr.PC’), the High Court has quashed RC No.64A/96 against Lalu Prasad Yadav, four cases against Dr. Jagannath Mishra being RC Nos.64A/96, 47A/96, 68A/96 and 38A/96 and two cases against Sajal Chakraborty being RC Nos.20A/96 and 68A/96 on the ground that they have been convicted in one of the cases for offences involving the same ingredients with respect to Chaibasa treasury.

2. In the wake of large scale defalcation of public funds, fraudulent transactions and fabrication of accounts in Animal Husbandry Department of State of Bihar popularly known as fodder scam, Central Bureau of Investigation (for short, ‘the CBI’) investigation had been ordered by this Court in State of Bihar & Anr. v. Ranchi Zila Samta Party & Anr. (1996) 3 SCC 682 to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, misappropriation of public funds by an independent agency. This Court directed CBI to do investigation and inform the Chief Justice of Patna High Court. On the re-orgnisation of the State of Bihar by virtue of Bihar Re-organisation Act, 2000, States of Bihar and Jharkhand were formed. Question arose with respect to the place of trial of cases i.e. whether in State of Bihar or State of Jharkhand. A Full Bench of High Court of Patna took the view that none of the 36 cases which were of Jharkhand to be transferred to Jharkhand. CBI preferred appeals before this Court as well as Dr. R.K. Rana. Total 64 cases had been registered relating to Bihar Fodder Scam. 52 cases involved withdrawal of huge sums of money from Government treasuries falling within Jharkhand State and in 36 out of 52 cases charge-sheet had been filed by CBI before the appointed day. This Court opined that the only court which has the jurisdiction to try offences under Prevention of Corruption Act is the Court of Special Judge appointed for areas within which such offences were committed. This Court in CBI, AHD, Patna v. Braj Bhushan Prasad & Ors. (2001) 9 SCC 432 has laid down thus :

“33. For that purpose it is useful to look at Section 3(1) of the PC Act. It empowers the Government to appoint a Special Judge to try two categories of offences. The first is, “any offence punishable under this Act” and the second is, “any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified” in the first category. So when a court has jurisdiction to try the offence punishable under the PC Act on the basis of the place where such offence was committed, the allied offences such as conspiracy, attempt or abetment to commit that offence are only to be linked with the main offence. When the main offence is committed and is required to be tried, it is rather inconceivable that jurisdiction of the court will be determined on the basis of where the conspiracy or attempt or abetment of such main offence was committed. It is only when the main offence was not committed, but only the conspiracy to commit that offence or the attempt or the abetment of it alone was committed, then the question would arise whether the Court of the Special Judge within whose area such conspiracy etc. was committed could try the case. For our purpose it is unnecessary to consider that aspect because the charges proceed on the assumption that the main offence was committed.” (Emphasis Supplied)

3. This Court in Braj Bhushan Prasad (supra) has laid down that so far as offences under section 13(1)(c) and 13(1)(d) are concerned, the

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2017 Supreme(SC) 441

Cases Referred (45)