- (1.)THIS is a successive petition, under Section 482 of the Code of Criminal Procedure, for quashing the criminal proceedings pending as Special Case No.3/2006 before the Special Judge (under the Prevention of Corruption Act, 1988 for CBI Cases) at Jabalpur on the ground of lack of jurisdiction as well as that of double jeopardy.
(2.)THE previous one was dismissed vide order dated 14/12/2010 passed in MCrC No.9352/10, as withdrawn with liberty to raise the pleas before the trial Court. Accordingly, by way of application dated 15.12.2010, the petitioner questioned maintainability of his prosecution, contending that-
(i) It is barred by the principle of double jeopardy. (ii) THE Special Court had proceeded with the trial without being moved by the competent authority and without following the prescribed procedure as contemplated in Section 126 of the Army Act, 1950.
However, learned trial Judge, for the reasons recorded in the order-dated 17.01.2011, proceeded to reject the objections.
In that case, the petitioner is being tried for the offence of having been in possession of pecuniary resources and property disproportionate to his known sources of income to the extent of Rs.23,77,628/-, punishable under Sections 13(l)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). THE trial has already reached the stage of defence. Cognizance of the offence was taken upon charge sheet filed by CBI, after due investigation into the case registered on 27.11.2003 as FIR No. RC0092003A0009 at its office in Jabalpur.

As indicated already, the first contention raised by learned counsel in support of the petition is that the petitioner's trial by the Special Court is violative of fundamental right guaranteed by Article 20(2) of the Constitution of India, forbidding prosecution and punishment of a person for the same offence more than once. For this, he has invited attention to the following background facts - (i) In the year 2003, the petitioner was posted as Lieutenant Colonel and Officer Commanding of 54 Company Supply Depot, Army Service Corps, Jabalpur. Upon a complaint made by one Prabhu Dayal Kodwani to the effect that he was demanding a sum of Rs. 10,000/-as illegal gratification, a trap was laid by the CBI but it was unsuccessful and failed. However, in the light of the findings of the investigation conducted by CBI, Officiating Commandant (JAK Rifles), Regimental Centre, nearly two years prior to filing of the charge-sheet before the Special Court, issued a charge sheet to the petitioner. It contained the following charges - JUDGEMENT_19_CRLJ_2012Image1.jpg JUDGEMENT_19_CRLJ_2012Image2.jpg (ii) The Commanding Officer, while following the procedure prescribed in Rule 22 of the Army Rules, 1954 that deals with hearing of charge, decided to adjourn the case as per sub-rule (3)(c) thereof for the purpose of having the evidence reduced in writing and summoned the investigating officer of the CBI as witness in the proceedings. (iii) Ultimately, after issuing a show cause notice (Annexure P-5) in respect of first three charges, the General Officer Commanding, vide order dated 19.05.2006 (Annexure P- 4), imposed the punishment of censure.

(3.)ACCORDING to learned counsel, non-mentioning of the fourth charge in the show cause notice clearly suggested that the petitioner was not found guilty thereof and, therefore, his subsequent prosecution for the same charge is illegal as it hits the principle underlying Article 20(2) of the Constitution.
As explained by the Supreme Court in S. A. Venkataraman v. Union of India, AIR 1954 SC 375-

"The ambit and contents of the guarantee of the fundamental right given in Art. 20(2) are much narrower than those of the Common Law rule in England or the doctrine of "Double Jeopardy" in the American Constitution, Article 20(2) of the Constitution of India does not contain the principle of "autrefios acquit". In order to enable a citizen to invoke the protection of cl. (2) of Art. 20 of the Constitution there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted."