9911796707
TMI Blog2017 (12) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... that no person shall be prosecuted or punished for the same offence more than once - In order to attract the protection guaranteed under Article 20(2) of the Constitution of India, it is to be seen as to whether the ingredients of the offences alleged under two separate Acts are same or different. In the present case, while the petitioner is being proceeded under the Bihar Value Added Tax Act, 2005, for concealing or failing to disclose full and correct particular of sale or purchase etc. as well as for evasion of tax, the present prosecution has been launched under various sections of the Indian Penal Code for committing forgery and cheating by furnishing invalid and false TIN number of the purchaser on the bill. Thus, the offence under the provisions of the Bihar Value Added Tax Act were, it seems, consequent to the offences under the Indian Penal Code, which ostensibly were committed first. Hence, in the present case, the same set of facts definitely constitute offence under two different law i.e. one under the Indian Penal Code and other under the Bihar Value Added Tax Act, 2005, thus neither Article 20(2) of the Constitution of India has any relevance to the present case n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the well settled principle of law that a person cannot be convicted twice for the one and the same offence. The learned counsel for the petitioner has further placed reliance on Article 20(2) of the Constitution of India and on a judgment dated 06.07.2012 passed by this Court in Miscellaneous Appeal No. 965 of 2010 and other analogous cases. 6. I have perused the materials on record and heard the learned counsel for the parties. Firstly, the order dated 06.07.2012 passed by this Court in Miscellaneous Appeal No. 965 of 2010 is of no avail to the petitioner herein inasmuch as the same pertains to completely different aspect of the Bihar Finance Act, 1981 and the same nowhere relates to continuance of the civil and criminal proceedings simultaneously or the principle of double jeopardy. Secondly, upon a query put by this Court to the learned counsel for the petitioner to show as to whether the Bihar Value Added Tax,2005 provides for any criminal prosecution for the offences as alleged in the complaint, the learned counsel for the petitioner was unable to show the same and instead, he merely relied on Section 31(2)(a) and Section 60(3) of the Bihar Value Added Tax, 2005. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Indian Penal Code under which the FIR has been lodged are not being re-produced herein below for the sake of brevity but it would be apropos to state that the same pertains to commission of penal offence of cheating and forgery. 11. It may be relevant to mention here that the fundamental rights guaranteed under Article 20(2) of the Constitution of India incorporates the principles of autrefois convicts or double jeopardy, which means that no person shall be prosecuted or punished for the same offence more than once. In order to attract the protection guaranteed under Article 20(2) of the Constitution of India, it is to be seen as to whether the ingredients of the offences alleged under two separate Acts are same or different. 12. Ostensibly the prosecution in criminal law and proceedings arising under the Bihar Value Added Tax Act are undoubtedly independent proceedings and therefore, there is no impediment in law for the criminal proceeding to proceed even during the pendency of the proceedings under the Bihar Value Added Tax Act, 2005. It is a trite law that the same fact in a proceeding can constitute offence under two different laws and an act or omission can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings for unduly long period on the ground that another proceedings having a bearing on the decision was not proper. (ii) (2012) 7 SCC 621 [Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Another], Para- 9, 12, 14, 15, 16, 17, 18, 19, 20, 21, 25, 28, 31, 37, 38 and 39: 9. The sole issue raised in this appeal is regarding the scope and application of the doctrine of double jeopardy. The rule against double jeopardy provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 300 CrPC; Section 26 of the General Clauses Act and Section 71 IPC. 13. In Maqbool Hussain v. State of Bombay2, the Constitution Bench of this Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the Customs Authorities and the gold seized from his possession was confiscated. Later on, a prosecution was launched against him in the criminal court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t instance before the Customs Authorities under Section 167(8) of the Sea Customs Act and heavy personal penalties were imposed on them. Thereafter, they were charged for an offence under Section 120-B IPC. This Court held that an offence under Section 120-B IPC is not the same offence as that under the Sea Customs Act: (AIR p.121, para 4) 4. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. (emphasis added) 18. In State of Bombay v. S.L. Apte7 the Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2) of the Constitution, held: (AIR pp. 581 583, paras 13 16) 13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for the same offence‟. The crucial requirement therefore for attracting the article is that the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter. Therefore, it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, some of the facts proved to establish the Jupiter conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence. 12. The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive is not an ingredient of an offence. The proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant, does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application. (See also State of Bihar v. Murad Ali Khan20, Union of India v. K.V. Jankiraman21, State of T.N. v. Thiru K.S. Murugesan22 and State of Punjab v. Dalbir Singh23.) 28. In Union of India v. Sunil Kumar Sarkar25, this Court considered the argument that if the punishment had already been imposed for court-martial proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20(2) of the Constitution. The Court explained that the court-martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the Court placed reliance upon its earlier judgment in R. Viswan v. Union of India26. 31. Similar view has been reiterate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section (2) of Sections 24-A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under IPC. 21. The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of Chartered Accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non-members from prosecution and punishment if the action of such member or non-member amounts to an offence under IPC or any other law. 22. The issue deserves to be considered from another angle. If a person cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is (Section 416 IPC), then he can be charged with the allegation of cheating by personation and punished under Section 419 for a term w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint under the relevant provisions of CrPC. 36. In view of the above discussion, the argument of the learned Senior Counsel appearing for the respondent that the Act is a special legislation vis- -vis IPC and a person who is said to have contravened the provisions of sub-section (1) of Sections 24, 24-A, 25 and 26 cannot be prosecuted for an offence defined under IPC, which found favour with the High Court does not commend acceptance. 13. Therefore, it is clear that the prosecution in criminal law and proceedings arising under the Bihar Value Added Tax Act, 2005 are undoubtedly independent proceedings and, therefore, there is no impediment in law for the criminal proceedings to proceed even during the pendency of the proceedings under the Bihar Value Added Tax Act, 2005. In the present case, while the petitioner is being proceeded under the Bihar Value Added Tax Act, 2005, for concealing or failing to disclose full and correct particular of sale or purchase etc. as well as for evasion of tax, the present prosecution has been launched under various sections of the Indian Penal Code for committing forgery and cheating by furnishing invalid and false TIN number of the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
