Criminal Writ Petition No.991 of 1993

10th June, 2002

Petitioner Counsel: Shri. G. G. A. NAIDU
Respondent Counsel: Shri. I. S. THAKUR, Shri. H. V. MEHTA

JUDGMENT

JUDGMENT :- Heard.

2. This petition is pending for final disposal since long. The petition has been filed on 26-1-1993.

3. Shri. Naidu challenged the order of trial court connected with a prosecution which is pending before the Special Judge of City Civil and Sessions Court, Mumbai and his prosecution also on following main grounds.

1. The sanction granted for previous prosecution as well as the present prosecution happens to be bad in law.

2. When, by the order of this Court as first Special Case was transferred to Special Judge, at Nagpur and he had discharged Shri. G.G.A. Naidu from the charge which was levelled against him, the prosecution (CBI) did not have any authority to prosecute him again by filing a case against him in the Court of Special Judge, City Civil and Sessions Court, Mumbai on the same grounds and under the same count.

3. The prosecution has not furnished him with all documents, which are concerned with this case since long and therefore, he has been prejudiced in his defence.

4. As trial is pending since number of years, this Court be pleased to quash the said prosecution.

5. On merit also this Court should quash the prosecution.

4. Shri. Naidu was heard at length on all the points except last one, because this Court is of the opinion that, he is entitled to get adjudication of other objections raised by him from the trial Court and it is the normal practice followed in Criminal Jurisprudence that the adjudication should be done from the lowest forum for avoiding prejudice to either side.

5. Shri. Naidu read out the sanction which was granted by the sanctioning authority in previous case. He submitted that the authority granting sanction for previous prosecution was not competent to grant a sanction to his prosecution. He reiterated same in respect of the present prosecution also. The previous prosecution was pertaining to provisions of section 5(1)(e) of Prevention of Corruption Act, 1947. The present prosecution is, as submitted by Shri. Mehta, pertaining to provisions of section 6(1)(c) as indicated by sanction order. Shri. Naidu has submitted that after reading the order which was passed by the Special Judge, Shri. S.N. Mardikar, Nagpur, the prosecution was obliged to file the chargesheet against him in Nagpur Special Court itself but without doing that the prosecution filed the present case in the Court of Special Judge, City Civil and Sessions Court, Mumbai. According to him it was an attempt to deny the fair trial to him.

Shri. Mehta repelled these allegations and submitted that the Special Judge, Nagpur, Shri. S.N. Mardikar by his order had clarified that the previous sanction, according to him, was without application of mind and was illegal. Therefore, he had discharged the present petitioner, Shri. Naidu. However, he clarified in his said order that C.B.I. was at liberty to file a fresh complaint against him after obtaining a due and legal sanction granted by competent authority. Shri. Mehta submitted that after the said order, the papers were again submitted before the Home Department and now the sanction to the prosecution has been granted by the competent authority. Sanction to prosecution is the important point and therefore, this Court finds it proper in the interest of justice that the trial Judge should adjudicate on this point instead of High Court. In that case, Shri. Naidu as well as prosecution would be getting an opportunity of putting their grievance before this Court in case of adverse order.

6. However, this Court is of the opinion that prima facie, the prosecuting agency in this case, was entitled to put the papers before the competent authority for a fresh sanction to the prosecution against Shri. Naidu by application of mind. In view of the order which was passed by Shri. S.N. Mardikar, Special Judge, Nagpur in previous case.

7. This lead to another submissions advanced by Shri. Naidu that on account of previous order of this Court transferring of old case from the Court of Special Judge of City Civil and Sessions Court, Mumbai, to the Court of Special Judge, Nagpur it was obligatory on the part of the prosecution agency, C.B.I. to file the chargesheet in the same Court of Special Judge, Nagpur and it did not have the authority or power to file the fresh prosecution in the Court of Special Judge, City Civil and Sessions Court Mumbai. It is not so. The order which was pertaining to transfer of that case from City Civil and Sessions Court, Mumbai to Court of Special judge at Nagpur was pertaining to that case only and when that case ended on account of the order of discharge, which was passed by the Special Judge, Nagpur, the prosecution agency, C.B.I. revived its right and authority to file the fresh prosecution based on fresh sanction in the Court of City Civil and Sessions Court, Mumbai. Because, after discharging the accused that particular prosecution comes to an end but that does not mean that the accused in that prosecution gets acquittal. Therefore, doctrine of "autre fois acquit" of doctrine of "Double jeopardy" does not come in picture at all. In such case of Discharge, the right of prosecution to file the case on better material survives and when it thinks of initiating fresh prosecution even on same facts, the charge sheet or complaint has to be filed in the original court which has the jurisdiction and authority to accept such charge sheet. Same is the case in respect of complaint. Of course, the accused has the right to challenge that by putting forth the doctrine of "autre fois acquit". In that case the court adjudicate it in view of facts and circumstances of each case. If the applicant feels that his case should be transferred to Nagpur again or to any other Court for his convenience of witnesses, he is at liberty to move fresh application in this context for transfer and the prosecuting agency would be also entitled to make the submissions in that context which would be appropriate to them.

8. Shri. Naidu submitted that he is again prosecuted for the same allegations on the same count and therefore, the fresh prosecution is hit by doctrine of "autre fois acquit - double jeopardy of the prosecution". He is entitled to move such an application before the Trial Judge at any stage of trial, but it should be submitted before the prosecution examines more witnesses and not at the fag end of the trial, because again his trial would be protracted and again he would be making the grievance of delay in getting his case decided. It is true that it is the right of every accused guaranteed by the Constitution to have a speedy trial and to have speedy disposal of the lis filed in the court. In that context, it would be pertinent to find out as to who was responsible for protracted trial or protracted lis. It is, now a days experience that the litigants instead of engaging a lawyer decide to fight out litigations themselves without equipping them with adequate legal knowledge and therefore they start making complaints on account of their ignorance of law and procedure. While making his initial submissions Shri. Naidu referred to the observations made by the Supreme Court. When he was pin pointed to give the citations of judgments, he was found without assistance of any such judgment. Shri. Naidu submitted that he had engaged a lawyer for arguing this petition also. That may be so but today Mr. Naidu was arguing this petition himself for making the submissions.

9. Shri. Naidu submitted that the copies of all connected documents have not been furnished to him by the prosecution. The provisions of section 173(6) of the Code of Criminal Procedure, 1973 was pointed out to him. Shri. Naidu turned to the provisions of the Code of Criminal Procedure 1898. But unfortunately for him the provisions are similar. Section 173 sub-section (5) of the Code of Criminal Procedure 1898 (old Code) provides that:

"Notwithstanding anything contained in sub-section (4), if the Police Officer is of the opinion that any part of any statement recorded under sub-section (3) of section 161 is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and in such a case, he shall make a report to the Magistrate stating his reasons for excluding such part; provided that at the commencement of the inquiry or trial, the Magistrate shall after perusing the part so excluded and considering the report of the police officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused".

Amendment to provisions of section 173 sub-section (6) of Code of Criminal Procedure, 1973 (New Code) is bringing the same effect. The petitioner is entitled to move a fresh application on that point, if he wants and the said Court is at liberty to decide it after due application of judicial mind. The Court would be obliged to see as to which document is relevant to the prosecution in question pending before him at present. It should be also ensured that no prejudice is caused to the defence of the accused, by nonsupply of copies of documents relevant to the cause of present prosecution. The proper course in this context would be that the petitioner should submit an application and prosecution should put up its say on it and thereafter, the Court should pass the order making it clear, as to what extent the present petitioner is entitled to have the copies of a document or particular documents. But while doing so, the Court shall not permit the protraction of trial or swaying away form the track of the trial. No party should be permitted to delay the trial, because the trial is to be completed as early as possible in expeditious manner for protecting the fundamental right of accused to have speedy trial.

9. These are the preliminary points of the objections which demand adjudication from the trial Court itself. Thereafter, the question of touching the merit would come in picture. This Court does not wish to interfere in the normal jurisdiction of the trial Court and, therefore, refrains from expressing its opinion on other portion of the submissions advanced before this Court, in view of the present petition and the prayer made therein. In the present case, only one witness has been examined and that too in examination in chief. Therefore, there is no need of de novo trial, because his examination-in-chief has been recorded and his cross-examination had just started. The Court has the authority and power to recall the witness for recording his evidence in the interest of justice. If necessary and if the prosecution prays, the witness who has been already examined-in-chief can be re-examined also after the cross-examination is over. But that can be in the interest of justice and keeping in view legal precedents.

10. The trial should start de die diem (day to day) hearing for avoiding the delay in disposal. Neither the petitioner nor the prosecution should delay the disposal of the trial but that does not mean that the trial Court is debarred from granting adjournment but that should be on compelling grounds and the reasons should be recorded in writing in detail in that context.

11. In view of the observations made and directions given above, this petition stands disposed of.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.

Order accordingly.