Tag Archives: prosecution

No Bar To Trial – Under Two Different Enactments

In State of Maharashtra v. Sayyed Hassan, the accused was prosecuted under Sections 26 and 30 of the Food Safety and Standards Act, 2006 as well as Sections 188,272,273 and 328 IPC for transportation and sale of prohibited gutka/pan masala. The Hon’ble Bombay High Court in Ganesh Pandurang Jadho v. State of Maharashtra, 2016 CrLJ 2401 held that Section 55 of the Food Safety and Standards Act, 2006 being a specific provision made in a special enactment, Section 188 IPC was inapplicable. The Hon’ble Supreme Court remanded the matter to the High Court and held as under:

        “There is no bar to a trial or conviction of an offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under Indian Penal Code and at the same time, an offence under any other law.”         In State of Rajasthan v. Hat Singh, (2003) 2 SCC 152, the Hon’ble Supreme Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. State of Arunachal Pradesh v. Ramchandra Rabidas, (2019) 10 SCC 75.

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Criminal Prosecution Can Proceed – Only When Prima Facie Offence is Disclosed

In Vineet Kumar v. State of U.P.¸(2017) 13 SCC 369, it was observed as under:

        “Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold. The court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under category (7) as enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335:

        “(7) When a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

        The criminal prosecution can be allowed to proceed only when a prima facie offence is disclosed. Judicial Process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. Rashmi Chopra v. State of U.P., (2019) 15 SCC 357.

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Misconduct – Possession of Pecuniary Resources

A public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income maybe his or of anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account for such disproportionate pecuniary resources or property. The Explanation to Section 13(1)(e) of the Prevention of Corruption Act elucidates the words “known sources of income” to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant.

From the design and purport of clause (e) of sub-section (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at anytime during period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in the absence of the proof of the allegation of being in possession by himself or through someone else, of pecuniary else, of pecuniary resources of property disproportionate to his known sources of income. Vasant Rao Guhe v. State of M.P., (2017) 14 SCC 442.

 

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Criminal Conspiracy – Proof of

A criminal conspiracy is generally hatched in secrecy, owing to which, direct evidence is difficult to obtain. The offence can therefore be proved either by adducing circumstantial evidence, or by way of necessary implication. However, in the event that the circumstantial evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof regarding the meeting of minds, which is essential in order to hatch a criminal conspiracy, by adducing substantive evidence in the court. Furthermore, in order to constitute the offence of conspiracy, it is not necessary that the person involved has knowledge of all the stages of action. In fact, mere knowledge of the main object/purpose of conspiracy, would warrant the attraction of relevant penal provisions. Thus, an agreement between two persons to do, or to cause an illegal act, is the basic requirement of the offence of conspiracy under the penal statute. R. Shaji v. State of Kerala, (2014) 4 SCC (Cri) 185.

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Dishonour of Cheque – Second or Successive Default in Payment

Applying the rules of interpretation and the provisions of Section 138, Negotiable Instrument Act the Court held that there was no hesitation in holding that a prosecution based on second or successive default in payment of cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. MSR Leathers v. S. Palaniappan and another, (2013) 1 SCC 177.

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