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2021 (3) TMI 432 - HC - VAT and Sales TaxDoctrine of double jeopardy - Allegation of taking Bribe - Petitioner, VAT officer, entered into a conspiracy with the assessee, under investigation, for an amicable settlement of the matter - Commission of an offence under Section 13(1)(d) of KVAT Act - Whether it be in a writ petition filed under Article 226 of the Constitution of India or in an application filed under Section 482 of the Code of Criminal Procedure, 1973 by the accused? - HELD THAT - In the instant case, the doctrine of double jeopardy has got no application. In the first place, the petitioner has only been discharged in the previous case. In the second place, the prosecution against him in the instant case is for entirely different offences and not for the same offence. Principle of Issue Estoppel. The principle of issue estoppel is also known as cause of action estoppel . It is different from the principle of double jeopardy. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence - Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial. It eludes comprehension how the petitioner is entitled to get immunity under Section 3 of the Judges (Protection) Act, 1985 for an act, which is not official or judicial, allegedly done by him. Accepting bribe cannot be considered as an act done by the petitioner in the course of discharge of his official or judicial duties or functions. Therefore, the petitioner is not entitled to get any immunity under the Judges (Protection) Act, 1985. Ext.P1 FIR is not liable to be quashed on any of the legal grounds raised by the petitioner. There is no sufficient ground to quash Ext.P1 FIR - The writ petition is liable to be dismissed.
Issues Involved:
1. Quashing of Ext.P1 FIR under Article 226 of the Constitution of India. 2. Bar under Section 79 of the KVAT Act. 3. Limitation under Section 80 of the KVAT Act. 4. Second First Information Report. 5. Double Jeopardy. 6. Principle of Issue Estoppel. 7. Immunity under Judges (Protection) Act, 1985. Detailed Analysis: 1. Quashing of Ext.P1 FIR under Article 226 of the Constitution of India: The petitioner sought to quash Ext.P1 FIR, registered under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, and Section 120B of the IPC. The court referred to the principles laid down in State of Haryana v. Bhajan Lal and Dineshbhai Chandubhai Patel, emphasizing that FIRs should only be quashed in rarest of rare cases. The court found that the allegations in Ext.P1 FIR, if taken at face value, prima facie constitute an offence under Section 13(1)(d) of the Act. The court also noted that the allegations were not patently absurd or inherently improbable and that there was no evidence of mala fides or ulterior motives behind the FIR. 2. Bar under Section 79 of the KVAT Act: Section 79 of the KVAT Act provides protection to government officers for acts done under the Act, requiring previous government sanction for prosecution. The court held that accepting a bribe cannot be considered an act done under the statute or in good faith. Therefore, the protection under Section 79(1) and (2) of the KVAT Act does not apply to the petitioner. The court also referenced Sivadasan Pillai v. State of Kerala, stating that prosecution under the PC Act cannot be controlled by local laws. 3. Limitation under Section 80 of the KVAT Act: Section 80 of the KVAT Act imposes a six-month limitation period for instituting suits or prosecutions against government officers for acts done under the Act. The court held that this provision does not apply to acts of accepting bribes, as such acts are not done under the statute. Therefore, the prosecution based on Ext.P1 FIR is not barred by limitation under Section 80 of the KVAT Act. 4. Second First Information Report: The petitioner argued that Ext.P1 FIR was a second FIR based on the same facts as Crime No. 500/2011. The court explained that a second FIR is permissible if it pertains to a different incident or crime. The court found that the scope of the investigation in Crime No. 500/2011 was different, focusing on cheating by the company, whereas Ext.P1 FIR concerned the petitioner's acceptance of a bribe. Therefore, Ext.P1 FIR was not considered a second FIR for the same incident. 5. Double Jeopardy: The petitioner contended that he could not be prosecuted again for the same facts after being discharged in C.C.No.23/2012. The court clarified that Article 20(2) of the Constitution bars double punishment for the same offence, but not for distinct offences arising from the same facts. The court found that the offences in the two cases were different, and the petitioner had only been discharged, not acquitted, in the previous case. Thus, double jeopardy did not apply. 6. Principle of Issue Estoppel: Issue estoppel prevents re-litigation of a fact already decided in a previous trial. The court noted that this principle applies only to the admissibility of evidence in subsequent trials and does not bar prosecution for different offences based on the same facts. Since the present case had not reached the stage of evidence, the principle of issue estoppel was not applicable. 7. Immunity under Judges (Protection) Act, 1985: The petitioner claimed immunity under Section 3 of the Judges (Protection) Act, 1985, arguing that he was exercising quasi-judicial functions. The court held that accepting a bribe is not an act done in the discharge of official or judicial duties. Therefore, the petitioner was not entitled to immunity under the Judges (Protection) Act. Conclusion: The court concluded that Ext.P1 FIR was not liable to be quashed on any of the grounds raised by the petitioner. The writ petition was dismissed, and the court emphasized that the judgment should not be construed as a finding on the merits of any factual issues.
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