# 13 (ADDL.) S.C.R. 522 MONICA BEDI v. STATE OF AP

- **Citation:** [2010] 13 S.C.R. 522
- **Court:** Supreme Court of India
- **Decided:** 2010-11-09
- **Case number:** Criminal Appeal No. 782 of 2007
- **Bench:** 8. Sudershan Reddy, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-addl-s-c-r-522-monica-bedi-v-state-of-ap-26444
- **Pages:** 36

## Headnote

Penal Code, 1860 - ss. 120-B, 419, 420, 465 and 468 -
C Accused entering into a conspiracy with other co-accused,
namely, Head Constable, Revenue Inspector and Postman,
to secure passport in the assumed name to enable her to
leave the country and travel abroad - Submission of false
documents - Framing of charges - Plea of double jeopardy
D by accused that she was tried and convicted by Lisbon court
for being in possession of fake passport - Conviction of
accused for the offences punishable u/ss. 120-B, 419 and
420; Head Constable ulss 120-B, 4191109, 4201109, 468 and
ss. 13(1){d) rlw. 13(2) of the 1988 Act; Revenue Inspector ul
E s. 468; and Postman u/ss. 120-B, 420, 4191109, 4201109 and
ss. 13(1 ){d) r!w. 13(2) of the 1988 Act - High Court upholding ·
conviction of accused persons, however modifying the
sentence - On appeal, held: Same set of facts can constitute
offences under two different laws - Bar to punishment to the
F offender twice over for the same offence would arise only
where the ingredients of both the offences are the same - On
the basis of the judgment passed by the Constitutional Court,
Lisbon and the facts of the case, plea of double jeopardy not
sustainable - Accused was involved in conspiracy at both preG passport application stage and post-passport application
stage - Thus, her conviction is upheld, however sentence is
reduced to the period already undergone while fine amount
is maintained - Evidence on record established that the
Postman participated in the conspiracy in securing the
H
522
MONICA BEDI v. STATE OF A.P.
523
passport for accused in the assumed name; and the Head
A
Constable submitted a false report in order to enable the
accused to secure a passport for herself in the assumed
name -
Thus, their conviction is upheld however, the
sentence is reduced while fine amount is maintained - As
regards Revenue Inspector, ingredients for the offence of B
forgery not satisfied, thus, he is acquitted of the offence u/s.
465 - Constitution of India, 1950 - Article 20(2) - Rule of
double jeopardy - Prevention of Corruption Act, 1988 -
s. 13(1 )(d) rlw 13(2) - Sentence/Sentencing.
Constitution of India, 1950 - Article 20(2) - Protection
C
against a second trial and conviction for the same offence
under Article 20(2) - When applicable - Explained - R_ule of
double jeopardy - General Clauses Act, 1897 - Code of
Criminal Procedure, 1973 - s. 300:
Maxim - 'Nemo de/set bis vexari pro eadem causa' -
Meaning of- No one should be put on peril twice for the same
offence.
D
According to the prosecution case, 'M' (A 3) entered
E
into a conspiracy with A 5 - Head Constable, A 7 -
Revenue Inspector, Kurnool and A 8 - Postman, Head
Post Office, Kurnool to secure second passport in the
assumed name of 'SM' from the Regional Passport Office,
Secunderabad by submitting false documents like
residence certificate, educational certificate. 'M' entered · F
Portugal with the aid of passport standing in the name
of 'SM', and was prosecuted and punished by a
competent court of jurisdiction at Lisbon. In India, the
charges were framed against the accused persons under
various provisions of the Penal Code, 1860 and the
G
Prevention of Corruption Act, 1988. A-3 raised a plea of
double jeopardy that she was tried and convicted by
Lisbon court for being in possession of fake passport ..
The trial court convicted A 3 under sections 120-8, 419
H
524
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A and 420 IPC but acquitted her of the charge under
Section 12 of the Passports Act, 1967. A 5 was convicted
under Sections 120-B, 419 r/w 109, 420 r/w 109, 468 IPC
and Sections 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act, A 7 under Section 468 IPC, and A 8 under
B Sections 120-B, 420, 419r/w109, 420 r/w 109 and Sections
13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The
High Court on re-appreciation of the evidence confirmed
the conviction but modified the sentence. Therefore, the
appellants filed the instant appeals.
c
Allow

## Text

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A
B
[2010] 13 (ADDL.) S.C.R. 522
MONICA BEDI
V.
STATE OF AP.
(Criminal Appeal No. 782 of 2007)
NOVEMBER 9, 2010
[8. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.)
Penal Code, 1860 - ss. 120-B, 419, 420, 465 and 468 -
C Accused entering into a conspiracy with other co-accused,
namely, Head Constable, Revenue Inspector and Postman,
to secure passport in the assumed name to enable her to
leave the country and travel abroad - Submission of false
documents - Framing of charges - Plea of double jeopardy
D by accused that she was tried and convicted by Lisbon court
for being in possession of fake passport - Conviction of
accused for the offences punishable u/ss. 120-B, 419 and
420; Head Constable ulss 120-B, 4191109, 4201109, 468 and
ss. 13(1){d) rlw. 13(2) of the 1988 Act; Revenue Inspector ul
E s. 468; and Postman u/ss. 120-B, 420, 4191109, 4201109 and
ss. 13(1 ){d) r!w. 13(2) of the 1988 Act - High Court upholding ·
conviction of accused persons, however modifying the
sentence - On appeal, held: Same set of facts can constitute
offences under two different laws - Bar to punishment to the
F offender twice over for the same offence would arise only
where the ingredients of both the offences are the same - On
the basis of the judgment passed by the Constitutional Court,
Lisbon and the facts of the case, plea of double jeopardy not
sustainable - Accused was involved in conspiracy at both preG passport application stage and post-passport application
stage - Thus, her conviction is upheld, however sentence is
reduced to the period already undergone while fine amount
is maintained - Evidence on record established that the
Postman participated in the conspiracy in securing the
H
522
MONICA BEDI v. STATE OF A.P.
523
passport for accused in the assumed name; and the Head
A
Constable submitted a false report in order to enable the
accused to secure a passport for herself in the assumed
name -
Thus, their conviction is upheld however, the
sentence is reduced while fine amount is maintained - As
regards Revenue Inspector, ingredients for the offence of B
forgery not satisfied, thus, he is acquitted of the offence u/s.
465 - Constitution of India, 1950 - Article 20(2) - Rule of
double jeopardy - Prevention of Corruption Act, 1988 -
s. 13(1 )(d) rlw 13(2) - Sentence/Sentencing.
Constitution of India, 1950 - Article 20(2) - Protection
C
against a second trial and conviction for the same offence
under Article 20(2) - When applicable - Explained - R_ule of
double jeopardy - General Clauses Act, 1897 - Code of
Criminal Procedure, 1973 - s. 300:
Maxim - 'Nemo de/set bis vexari pro eadem causa' -
Meaning of- No one should be put on peril twice for the same
offence.
D
According to the prosecution case, 'M' (A 3) entered
E
into a conspiracy with A 5 - Head Constable, A 7 -
Revenue Inspector, Kurnool and A 8 - Postman, Head
Post Office, Kurnool to secure second passport in the
assumed name of 'SM' from the Regional Passport Office,
Secunderabad by submitting false documents like
residence certificate, educational certificate. 'M' entered · F
Portugal with the aid of passport standing in the name
of 'SM', and was prosecuted and punished by a
competent court of jurisdiction at Lisbon. In India, the
charges were framed against the accused persons under
various provisions of the Penal Code, 1860 and the
G
Prevention of Corruption Act, 1988. A-3 raised a plea of
double jeopardy that she was tried and convicted by
Lisbon court for being in possession of fake passport ..
The trial court convicted A 3 under sections 120-8, 419
H
524
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A and 420 IPC but acquitted her of the charge under
Section 12 of the Passports Act, 1967. A 5 was convicted
under Sections 120-B, 419 r/w 109, 420 r/w 109, 468 IPC
and Sections 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act, A 7 under Section 468 IPC, and A 8 under
B Sections 120-B, 420, 419r/w109, 420 r/w 109 and Sections
13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The
High Court on re-appreciation of the evidence confirmed
the conviction but modified the sentence. Therefore, the
appellants filed the instant appeals.
c
Allowing the appeal filed by the Revenue Inspector
and partly allowing the appeals filed by others, the Court
HELD: 1.1 Article 20 (2) of the Constitution of India,
1950 provides that no person would be prosecuted and
D punished for the same offence more than once. It
embodies a protection against a second trial and
conviction for the same offence. The well known maxim
'nemo de/set bis vexari pro eadem causa' embodies the
well established common law rule that no one should be
E put on peril twice for the same offence. The fundamental
right guaranteed under Article 20 (2) has its roots in
common law maxim nemo debet bis vexari. If a parson is
charged again for the same offence, he can plead, as a
complete defence, his former conviction, or as it is
F technically expressed, take the plea of autrefois convict.
The principle has been recognized in the existing law in
India and is enacted in Section 26 of the General Clauses
Act, 1897 and Section 300 of the Code of Criminal
Procedure, 1973. [Paras 13, 14 and 15) [539-F-H; 540-AG E]
1.2 What is prohibited under Article 20 (2) is, the
second prosecution and conviction must be for the same
offence. If the offences are distinct, there is no question
of the rule as to double jeopardy being applicable. The
H test to ascertain is whether two offences are the same,
MONICA BEDI v. STATE OF A.P.
525
and not the identity of the allegations but the identity of A
the ingredients of the offences. Thus, it is clear that the
same facts may give rise to different prosecutions and
punishment and in such an event the protection afforded
by Article 20 (2) is not available. A person can be
prosecuted and punished more than once even on
B
substantially same facts provided the ingredients of both
the offences are totally different and they did not form the
same offence. [Para 17] (541-D-E; 543-B-D]
Maqbool Hussain vs. The State of Bombay (1953) SCR
730; S.A. Venkataraman vs. The Union of India & Anr. (1954)
C
SCR 1150; Leo Roy Frey vs. Superintendent District Jail,
Amritsar (1958) SCR 822; The State of Bombay vs. S. L. Apte
(1961) 3 SCR 107; Bhagwan Swarup vs. State of Maharashtra
AIR 1965 SC 682; State of Rajasthan vs. Hat Singh and Ors.
(2003) 2 sec 152- referred to.
D
United States vs. Rabinowitf] (1915) 238 US 78; T. W.
Morgan vs. Alfonso J. Devine @ Ollie Devine (1915) 237
U.S.1153; United States vs. Vito Lanza (1922) 260 U.S. 314
- referred to.
1.3 The submission that the facts based on which 'M'
was prosecuted and punished by a competent court of
jurisdiction at Lisbon and the facts based on which
prosecution was initiated resulting in conviction are the
same and, therefore, the conviction of 'M' is in the teeth
E
F
of Article 20 (2) of the Constitution and Section 300 of the
Code of Criminal Procedure is not well founded since the
same set of facts can constitute offences under two
different laws. An act or an omission can amount to and
constitute an offence under IPC and at the same time
G
constitute an offence under any other law. The bar to the
punishment to the offender twice over for the same
offence would arise only where the ingredients of both
the offences are the same. [Para 21] [545-C-E]
H
526 SUPREME COURT REPORTS [2010] 13 (ADDL) S.C.R.
A
1.4 Th.er!'! is no factual foundation laid as such by 'M'
taking the plea of double jeopardy before the trial court.
Nothing is suggested to the Investigating Officer or to
any 9f the witnesses that she is sought to be prosecuted
and punished for the same offence for which she was
B charged and convicted by a competent court of
jurisdiction at Lisbon. She did not even make any such
statement in her examination under Section 313 Cr.P.C.
The fundamental right guaranteed under Article 20 (2) of
the Constitution is in the nature of an injunction against
c the State prohibiting it to prosecute and punish any
person for the same offence more than once but the
· initial burden is upon the accused to take the necessary
plea and establish the same. [Para 23] [545-H; 546-A-C]
Halsbury's Laws of England, 2nd Edn, Volume-IX -
D referred to.
1.5 Having regard to the nature of the guaranteed
right, the judgment passed by the Constitutional Court,
Lisbon (a typed copy) was examined and the same does
E not support the plea of 'M'. In the light of the findings and
conclusions reached by the Constitutional Court at
Lisbon and on a careful consideration of the entire matter
and the facts, plea of double jeopardy is wholly untenable
and unsustainable. [Paras 25 and 26] [547-A-B; 549-G-H]
F
2. This Court in exercise of its jurisdiction under
Article 136 of the Constitution of India normally does not
interfere with the concurrent findings of facts arrived at
by the courts below on proper appreciation of evidence.·
It is not the function of this Court to re-appreciate the
G evidence and substitute the findings for that of the courts
below unless it is clearly established that the findings and
the conclusions so arrived at by the courts below are
perverse and based on no evidence. [Para 27] [550-B-C]
H
3.1 There is no controversy whatsoever that 'M'
MONICA BEDI v. STATE OF A.P.
527
travelled abroad on the strength of the passport secured
A
by her in the assumed name. She entered Portugal with
the aid of passport standing in the name of 'SM' for which
she had to face the prosecution and suffer conviction
and sentence in Portugal. [Para 28) [550-E-F]
3.2 It is evident from the record that the involvement
B
of the appellants is at two stages. Stage one is where 'M'
(A-3) and A-7 were involved in the pre-passport
application at the threshold and even before the
preparation of application seeking the passport in the
C
assumed name. Stage two is the involvement of A-3, A-5
and A-8 after the submission of passport application
before the authorities. The passport application was
submitted in the assumed name of 'SM' which contained
the photograph of 'M'. The essential requirements for
obtaining the passport are: passport application; proof D
of residence; and date of birth certificate as spoken to by
PWs. 2, 3, 21 and 31. The evidence of number· of
witnesses which remained unimpeached brought on
record as to how these documents were obtained for the
benefit of 'M'. [Para 29) [550-F-H; 551-A-B]
E
3.3 A-7, Mandal Revenue Inspector verified the
residence particulars of 'SM' on the instructions of PW5, Mandal Revenue Officer, Kurnool and submitted a false
verification report based on which residence certificate
F
was issued by PW-5. PW-37, Investigating Officer and PW17 issued certificate to the effect that no person by name
'SM' resided in the house as earlier submitted by A-7. It
is based on the said evidence, the trial court and
appellate court came to the right conclusion that the
G
prosecution established its case that A-7 gave false
verification based on which residence certificate was
issued by PW-5 in the name of 'SM'. The trial court
convicted A-7 for the offence under Section 468 IPC. The
High Court held that in submitting the false verification
H
528
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A report in respect of residence of 'SM' he may not have
been aware and known that the certificate so obtained
would be used for the purpose of securing the passport
in the assumed name of 'SM'. There is no evidence on
that aspect. The High Court also concluded that by the
B time A-7 submitted a false verification there was nothing
on record that he was hand in glove with the other
accused for the purpose of cheating. The High Court
upheld the acquittal of A-7 of the charge under Section
120-B IPC. The High Court found that the proper offence
c made against him would be one for making forged
document simplicitor punishable under Section 465 IPC.
The High Court was not justified in convicting A-7 at all
for it had found no case against the appellant made out
under Section 120-B IPC. There was no evidence that AD 7 prepared false document with intent to cause damage
or injury, to the public or to any person, or to support any
claim or title, or to cause any person to part with property,
or to enter into any express or implied contract, or with
intent to commit fraud. The ingredients of Section 463 are
not satisfied. In such an event the conviction of the
E appellant under Section 465 IPC is unsustainable. A-7 is
acquitted for the offence under Section 465 IPC and
sentence awarded is set aside. [Paras 29, 30 and 35) [551A-E; 552-B-G; 557-B]
F
3.4 Regarding A-8, the Postman, Head Post Office,
Kurnool, there is a clear evidence which was properly
appreciated by the courts below that A-8 took the envelop
containing the passport addressed to 'SM' from PW-11
representing that he knew the addressee and would
G deliver the same. The said article was actually entrusted
to PW-11 for its delivery but A-8 took the same from PW11 for delivery to 'SM' assumed name of 'M'. The courts
below found that A-8 was aware of the contents of the
article. It is under those circumstances the courts below
H rightly concluded that the evidence available on record
MONICA BEDI v. STATE OF A.P.
529
clearly established that he participated in the conspiracy
A
in securing the passport for 'M' in the assumed name of
'SM'. Thus, the conviction of A-8 for the offences charged
is upheld. There is no reason to interfere with the view
taken by the High Court. However, the sentence of one
year rigorous imprisonment under each count awarded
B
by the trial court is reduced to that of 6 months rigorous
imprisonment under each count while maintaining the
fine amount. [Paras 31 and 35] [552-G-H; 553-A-D; 557D-E]
3.5 A-5, the Head Constable, submitted exhibit P15 c
report. PW-7, Junior Assistant in the District Police Office,
Kurnool, PW-8, Inspector of Police, District Special
Branch, Kurnool and PW-14, Sub-Inspector, District
Special Branch, Kurnool were the material witnesses
examined by the prosecution to prove the accusations
D
leveled against A-5. 'The courts below held that the
evidence of PW-7, PW-8 and PW-14 is cogent and
consistent which in clear and categorical terms has
proved the fact that A-5 is the person who verified the
passport application particulars of 'SM' and submitted
E
exhibit P15 inquiry report along with exhibit P16 and
exhibit P17 enclosures. There cannot be any doubt
whatsoever that A-5 submitted a false report in order to
enable 'M' to secure a passport for herself in the assumed
name of 'SM'. His conviction for the offences charged is
F
upheld. However, the High Court reduced the sentence
awarded by the trial court to one year rigorous
imprisonment under each count while mai.ntaining the
fine imposed by the trial court. Having regard to the facts
and circumstances of the instant case, the conviction of G
A-5 under Sections 120-B, 419 r/w 109, 420 r/w 109 and
468 IPC and as well as under Section 13 (1) (d) r/w 13(2)
of the Prevention of Corruption Act is upheld. However,
the sentence is reduced to that of six months rigorous
imprisonment under each count while maintaining the
H
530 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A fine imposed by the trial court and the sentence to suffer
imprisonment, in default, of payment of fine. The
sentences are directed to run concurrently. [Paras 32 and
35) [553-E-H; 554mA-E; 556-F-H]
B
3.6 It is proved that 'M' was involved in the conspiracy
at both pre-passport application stage and post-passport
application stage. The conspiracy itself was hatched only
with a view to secure a passport for 'M' in the assumed
name of 'SM'. It cannot be said that there was no evidence
C whatsoever against 'M' to prove her involvement for the
offence punishable under Sections 120-B, 419 and 420
IPC. It is for her benefit that the entire conspiracy was
hatched involving more than one individual in order to
secure a passport for her benefit enabling her to travel
abroad in the assumed name of 'SM'. There is no material
D on the basis of which this Court would differ with the
findings and conclusions concurrently arrived at by the
courts below. [Para 33) [554-F-H; 555-A-B]
3.7 The original of exhibit P50 is the passport issued
E by the competent authorities in India and, therefore,
Section 78 (6) is not applicable to the facts of the instant
case. The issuance of original of exhibit P50 passport is
clearly proved. It is based on that passport that 'M'
travelled abroad and entered Portugal for which she had
F to face a prosecution and suffer conviction and
sentence. The prosecution cannot be held to be vitiated.
The conviction of the appellant for the offence punishable
under Sections 120-B, 419 and 420 IPC is upheld.
However, the High Court reduced the sentence of
G imprisonment imposed on 'M'. The High Court also held
that she is entitled for set off of the periods of detention
suffered by her in Lisbon, from 18.9.2004 to 4.6.2005 and
3.11.2005 to 10.11.2005. Having regard to the facts and
circumstances of the case and the fact that she has
undergone more than 2 % years of sentence, the
H
MONICA BEDI v. STATE OF A.P.
531
sentence awarded under each count directed to run
A
concurrently is reduced to that of the period already
undergone by her, while maintaining the sentence of fine
awarded by the courts below. [Paras 33 and 35) [555-EH; 556-A-B; 556-D-E]
Case Law Reference:
(1953) SCR 730
Referred to
Para 16
(1954) SCR 1150
Referred to
Para 16
(1958) SCR 822
Referred to
Para 17
(1915) 238US 78
Referred to
Para 17
(1961) 3 SCR 107
Referred to
Para 17
AIR 1965 SC 682
Referred to
Para 17
(2003) 2 sec 152
Referred to
Para 18
(1915) 237 U.S. 1153
Referred to
Para 19
(1922) 260 U.S. 314
Referred to
Para 20
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 782 of 2007.
From the Judgment & Order dated 08.03.2007 of the High
Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
1434 of 2006.
WITH
Crl. A. Nos. 783, 784 & 1357 of 2007.
B
c
D
E
F
P.P. Malhotra, ASG, I. Venkata Narayana, Gaurave
G
Bhargava, Niraj Gupta, V. Sridhar Reddy, V.N. Raghupathy, V.
Sudeer, M.B.R.S. Raju, S. Sunita, Balaji Srinivasan, Madhu
Smita Bora, Raghenth Basant, Balaji Subramanian, Arvind
Kumar Sharma, D. Mahesh Babu, Ramesh Allanki for the
appearing parties.
H
532
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A
The Judgment of the Court was delivered by
B. SUDERSHAN REDDY, J. 1. These criminal appeals
which are to be disposed of by a common order are directed
against the common judgment of the High Court whereunder
8 the High Court confirmed the conviction of the appellants under
Section 120-8, 419 and 420 IPC and other provisions including
under Section 13 (1) (d) read with 13 (2) of the Prevention of
Corruption Act. We shall later notice in detail the conviction and
sentence as awarded by the courts below.
C
2. The Central Bureau of Investigation, SPE, Hyderabad,
laid charge sheet against altogether 10 accused persons
before the Special Judge for C.8.1. cases, Hyderabad in which
Abu Salem Abdul Qayoom Ansari @ Abu Salem(A-1 ),
Sameera Jumani w/o Abu Salem(A-2), Monica Bedi {A-3),
0 Chamundi Abdul Hameed (A-6) and Faizan Ahmed Sultan (A10) were shown as absconders. The learned Special Judge
took the charge sheet on file as C.C. No. 3 of 2005 and issued
non-bailable warrants against A-1, A-2, A-3, A-6 and A-10.
Case against A-1, A-2, A-6 and A-10 came to be separated
E and case proceeded against A-3, A-4, A-5, A-7, A-8 and A-9.
3. The learned Special Judge upon consideration of the
material made available framed the following charges against
the accused persons:
F
(i)
for the offence under Section 120-8 IPC against A3 to A-5, A-7 to A-9;
G
H
(ii)
for the offence under Section 419 IPC against A3;
(iii)
for the offence under Section 419 r/w 109 IPC
against A-4, A-5 and A-7 to A-9;
(iv)
for the offence under Section 468 IPC against A5;
MONICA BEDI v. STATE OF A.P.
[B. SUDERSHAN REDDY, J.]
533
(v)
for the offence under Section 420 IPC against AA
8;
(vi)
for the offence under Section 468 IPC against A7;
(vii) for the offence under Section 13 (1) (d) r/w 13(2)
8
of the Prevention of Corruption Act against A-4, A5, A-7 and A-8;
(viii) for the offence under Section 12 of the Passports
Act, 1967 against A-3;
C
(ix)
for the offence under Section 420 IPC against A3;
for the offence under Section 420 r/w 109 IPC
against A-4, A-5, A-7 to A-9.
D
(x)
4."The prosecution in order to substantiate the charges
examined altogether 38 witnesses and proved 79 documents.
Exhibit D-1 to Exhibit D-4 were marked on behalf of the
defence.
E
5. The learned trial judge upon appreciation of the
evidence and material available on record found Monika Bedi
(A-3) guilty of the offences punishable under Sections 120-8,
419 and 420 IPC but acquitted of the charge under Section 12
of the Passports Act, 1967; Shaik Abdul Sattar (A-5) guilty of
F
the offences under Sections 120-B, 419 r/w 109, 420 r/w 109,
468 IPC and Sections 13(1) (d) r/w 13 (2) of the Prevention of
Corruption Act; Mohammed Yunis (A-7) guilty of the offence
under Section 468 IPC and D. Gokari Saheb (A-8) guilty of the
offences under Section 1208, 420, 419 r/w 109 IPC, 420 r/w
G
109 IPC and under Sections 13 (1) (d) r/w 13 (2) of the
Prevention of Corruption Act. A-3 was accordingly sentenced
to suffer rigorous imprisonment for three years and to pay a fine
of Rs. 500/-, in default, to suffer simple imprisonment for one
month for the offence under Section 120-B IPC; rigorous
H
534 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A imprisonment for five years and to pay a fine of Rs. 1,000/- in
default, to suffer simple imprisonment for one month for the
offence under Section 420 IPC; rigorous imprisonment for three
years and to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for one month and for the offence under Section
B 419 IPC; A-5 to suffer rigorous imprisonment for three years
and to pay a fine of Rs: 500/-, in default, to suffer simple
imprisonment for one month for the offence under Section 120B IPC; rigorous imprisonmerif for three years and to pay a fine
of Rs. 500/-, in default, to suffer simple imprisonment for one
c month for the offence under Section 419 r/w 109 IPC; rigorous
imprisonment for three years and to pay a fine of Rs. 500/-, in
default, to suffer simple imprisonment for one month for the
offence under Section 420 r/w 109 IPC; rigorous imprisonment
for three years and to pay a fine of Rs. 500/-, in default, to suffer
0
simple imprisonment for one month for the offence under
Section 468 IPC, and rigorous imprisonment for one year and
to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for one month for the offence under Sections 13
( 1) ( d) r/w 13 (2) of the Prevention of Corruption Act. A-7 to
E suffer rigorous imprisonment for three years and to pay a fine
of Rs. 500/-, in default, to suffer simple imprisonment for one
month for the offence under Section 468 IPC; A-8 to suffer
rigorous imprisonment for three years and to pay a fine of Rs.
500/-, in default, to suffer simple imprisonment for one month
for the offence under Section 120-B IPC; rigorous imprisonment
F for three years and to pay a fine of Rs. 500/-, in default, to suffer
simple imprisonment for one month for the offence under
Section 419 r/w 109 IPC; rigorous imprisonment for three years
and to pay a fine of Rs. 500/-, in default, to suffer simple
imprisonment for one month for the offence under Section 420
G r/w 109 IPC; rigorous imprisonment for three years and to pay
a fine of Rs. 500/-, in default, to suffer simple imprisonment for
one month for the offence under Section 420 IPC and rigorous
imprisonment for one year and to pay a fine of Rs. 500/-, in
default, to suffer simple imprisonment for one month for the
H offence under Sections 13 (1) (d) r/w 13 (2) of the Prevention
MONICA BEDI v. STATE OF A.P.
[B. SUDERSHAN REDDY, J.]
535
of Corruption Act. All the substantive sentences were directed
A
to run concurrently.
B
6. On appeal the High Court of Andhra Pradesh upon reappreciation of evidence available on record confirmed the
conviction of A-3 for the offences punishable under Sections
120-B, 419 and 420 IPC but reduced the sentence from three
years rigorous imprisonment to two years rigorous
imprisonment for the offence punishable under Section 1208
IPC, from five years rigorous imprisonment to three years
rigorous imprisonment for the offence punishable under Section
C
420 IPC and from three years rigorous imprisonment to two
years rigorous imprisonment for the offence punishable under
Section 419 IPC while maintaining the fine imposed by the trial
court. The High Court also confirmed the conviction of A-5 under
each count but reduced the quantum of imprisonment from
three years to one year for offences under each count under
D
Sections 120-B, 419 r/w 109, 420 r/w 109, 468 IPC. However,
his conviction and sentence imposed for the offences
punishable under Section 13 (1) (d) read with 13 (2) of the
Prevention of Corruption Act was confirmed. That so far as A7 is concerned the High Court while partly allowing the appeal
modified the conviction from Section 468 IPC to that of one
under Section 465 IPC and accordingly sentenced to suffer
rigorous imprisonment for six months and to pay a fine of Rs.
500/-, in default, to suffer simple imprisonment for three months.
That so far as A-8 is concerned the High Court confirmed his
conviction under all counts but reduced the quantum of
imprisonment from three years to one year for offences under
each count under Section 120-B, 420, 419 r/w 109, 420 r/w
109, 468 IPC. However, his conviction and sentence imposed
E
F
for the offences punishable under Section 13(1) (d) r/w 13 (2)
G
of the Prevention of Corruption Act was confirmed. Hence,
these appeals.
Case of Prosecution:
7. In order to consider as to whether the High Court
H
536
SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A committed any error in convicting and sentencing the appellants
as noted herein above, it may be just and necessary to briefly
notice the case of the prosecution. The allegation against
Accused No. 3 (appellant in Criminal Appeal No. 782/2007) is
that she obtained a second passport in the assumed name of
B Sana Malik Kamal from the Regional Passport Office,
Secunderabad by submitting false documents like residence
certificate, educational certificate with the help of A-4 to A-9.
She used the passport to travel Lisbon, Portugal. The owner
of Mis. Faizan Enterprises, Mumbai (A-10) is involved in the
c business of recruiting people for jobs in foreign countries. He
gave 10 passport size photographs of A-1 to A-3 and fake
names and documents to A-9 to secure passports falsely
showing them as residents of Kurnool in the State of Andhra
Pradesh. A-9 has relatives in Kurnool. He visited Kurnool in the
0
month of March, 2001 and entrusted the work of securing
passports of A-1 to A-3, to A-6 an unauthorized passport agent.
At the instance of A-6, A-7 Mohammed Yun is, Manda I Revenue
Inspector of Mandal Revenue Office, Kurnool issued a false
residential certificates in the assumed names intended for the
benefit of A-1 to A-3. A-6 procured fake transfer certificates
E purported to have been issued by the Headmaster, Zila
Parishad High Court, Peddapadu, Kurnool District in the name
of Ramil Kamil Malik and two fake memorandum of marks
sheets in the names of Neha Asif Jafari and Sana Malik,
purported to have been issued by the Headmaster, Higher
F Elementary School, Kurnool, as a proof in support of date of
birth. One Abdul Gaffar (PW-1) filled up three passport
applications of A-1 to A-3 at the instance of A-6 and they were
accordingly submitted in the Regional Passport Office,
Secunderabad. The authorities accordingly sent the particulars
G mentioned in the forms to the office of Superintendent of Police,
Kurnool which were received in the office on 16.5.2001 vide
exhibit P-28 covering letter. A-5 (appellant in Criminal Appeal
No. 784/07) at the relevant time was working as Writer-Head
Constable in special branch. He submitted fake verification
H reports along with statements of six persons in support of
MONICA BEDI v. STATE OF A.P.
537
[B. SUDERSHAN REDDY, J.]
character and conduct of A-1 to A-3 by portraying them as if
A
they were the neighbours of A-1 to A-3. On receipt of reports,
A-4 despatched them to Regional Passport Office,
Secunderabad. It is on the basis of these reports, passports
were accordingly issued to A-1 to A-3 in their assumed names
and they were despatched by speed post to their respective
B
address at Kurnool as indicated in the passport applications.
The passports were received at the Head Post Office, Kurnool
through speed post. On 23.8.2001 two speed post articles
addressed to the assumed names of A-2 and A-3 were
entrusted to PW-11 Babu Miah, a postman of Beat 2, for c
delivery of the same to the addressees. A-8 (D. Gokari Saheb
appellant in criminal appeal no. 783/07) Postman, Head Post
Office, Kurnool, approached PW-11 Babu Miah and collected
the two speed post articles by giving his acknowledgement on
the delivery slip list falsely representing that he knew the
D
addresses and he would personally deliver the articles. On
27.8.2001 another speed post article containing passport in the
assumed name of A-1 was entrusted to A-8 for delivery who in
turn delivered it to one Aslam Khan, Cashier of Hotel Elite,
Kurnool where A-6 was also working. A-6 sent two covers to
E
A-9 on 23.8.2001 and 27.8.2001 in courier service.
8. We shall notice further details only so far as the
appellants before us are concerned. Exhibit P1 is the index card
of Sana Malik Kamal. (assumed name for Monika Bedi). PW1 is the author of exhibit P1. PW-1 filled up exhibit P1 at the
F
request of C:A. Hameed (A-6). PW-4 is the Superintendent in
the Regional Passport Office, Secunderabad. He speaks of
issuance of the passports in pursuance of passport application
in the name of Sana Malik. PW-5 P. Krishna Mohan Reddy was
the Mandal Revenue Officer, Kurnool Mandal who issued
G
residence certificate dated 9.4.2001 in the name of Sana Malik
Kamal based on false verification reports submitted by A-7
Mohammad Yunis. That as per exhibit P9 residence certificate,
Sana Malik Kamal (assumed name of Monica Bedi) is stated
to be residing at Babu Gounda Street, Kurnool. PW-6 at the
H
538 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A relevant time was working as Deputy Educational Officer,
Nandyal, Kurnool District who stated that there was no school
by name of Hanuman Higher Elementary School, Kurnool
wherein Sana Malik Kamal was alleged to have studied. PW7 M. Lakshminarayana at the relevant time was the Junior
B Assistant in the District Police Office, Kurnool and he speaks
of receiving applications for verification of contents therein.
According to him, A-4 ( G. Srinivas) who attended to passport
inquiries, received the passport application of Sana Malik
Kamal. After receipt of exhibit P15 enquiry report along with
c exhibits P16 and P17 statements submitted by A-5 S.A. Sattar,
A-4 prepared the relevant report and forwarded the same to
the Regional Passport Office, Secunderabad. Exhibit P18 is
the letter addressed by the Superintendent of Police to the
Regional Passport Office, Secunderabad reporting no objection
D for the grant of passport to the applicant. Rest of evidence
relates to handing over of speed post articles relating to Babu
Miah as per the instructions of the Head Post Master, Kurnool
from whom A-8 Gokari Saheb took the speed post articles from
him for being delivered to the addressees. PW-13 is the owner
E of the residential apartment wherein Monica Bedi (A-3) is
alleged to have resided as tenant during the years 1995-1997.
Rest of the details are not required to be noticed.
9. The learned Special Judge for C.8.1. on a careful and
meticulous appreciation of the evidence and material made
F available on record convicted the appellants as noted herein
above. The High Court on re-appreciation of the evidence
confirmed the conviction but modified the sentence as noted
herein above.
G Submissions:
10. Now we shall proceed to consider the submissions
made by the learned senior counsel Shri K.T.S. Tulsi appearing
on behalf of the appellant - Monica Bedi (A-3). The learned
senior counsel submitted that the appellant has been tried and
H convicted by a competent court of jurisdiction at Lisbon for
MONICA BEDI v. STATE OF A.P.
539
[B. SUDERSHAN REDDY, J.]
being in possession of fake passport and, therefore, her trial
A
and conviction for possessing the same passport before the
C.8.1. Court at Hyderabad amounts to double jeopardy and in
violation of Article 20(2) of the Constitution of India and as well
under Section 300 Cr.P.C. The learned senior counsel further
submitted that there is no evidence of appellant's involvement
B
in any of offence whatsoever. His further submission was that
the appellant has been denied the benefit of Section 428 of the
Code of Criminal Procedure, in as much as she has neither
been given the benefit of the period of sentence undergone by
her in Portugal nor has she been given the benefit of the c
complete period pursuant to sentence in Portugal i.e. after 18th
September, 2004, which she is legally entitled to.
11. We have also heard the learned counsel appearing on
behalf of Shaik Abdul Sattar (A-5), Mohd. Yunis (A-7) and D.
Gokari Saheb (A-8).
D
12. Shri P.P. Malhotra, learned Additional Solicitor General
and Shri I. Venkata Narayana, learned senior counsel
supported the impugned judgment. Both of them have
submitted that Article 20 (2) has no application whatsoever to
E
the facts on hand.
Double Jeopardy
13. Now we shall take up the first contention of Shri Tulsi
as to whether the appellant's guaranteed fundamental right
F
under Article 20 (2) has been infringed? Article 20 (2) of the
Constitution provides that no person shall be prosecuted and
punished for the same offence more than once.
14. Article 20 (2) embodies a protection against a second
G
trial and conviction for the same offence. The fundamental right
guaranteed is the manifestation of a long struggle by the
mankind for human rights. A similar guarantee is to be found
in almost all civilised societies governed by rule of law. The well
known maxim 'nemo de/set bis vexari pro eadem causa'
H
540
SUPREME COURT REPORTS [2010] 13 (ADDL) S.C.R.
A embodies the well established common law rule that no one
should be put on peril twice for the same offence.
BLACKSTONE referred to this universal maxim of the common
law of England that no man is to be brought into jeopardy of
his life more than once for the same offence.
B
15. The fundamental right guaranteed under Article 20 (2)
has its roots in common law maxim nemo debet bis vexari - a
man shall not be brought into danger for one and the same
offence more than once. If a person is charged again for the
same offence, he can plead. as a complete defence, his former
C conviction, or as it is technically expressed, take the plea of
autrefois convict. This in essence is the common law principle.
The corresponding provision in the American Constitution is
enshrined in that part of the Fifth Amendment which declares
that no person shall be subject for the same offence to be twice
D put in jeopardy of life or limb. The principle has been recognised
in the existing law in ·India and is enacted in Section 26 of the
General Clauses Act, 1897 and Section 300 of the Criminal
Procedure Code, 1973. This was the inspiration and
background for incorporating sub-clause (2) into Article 20 of
E the Constitution. But the ambit and content of the guaranteed
fundamental right are much narrower than those of the common
law in England or the doctrine of 'double jeopardy' in the
American Constitution.
F
16. In Maqbool Hussain vs. The State of Bombay1, this
Court explained the scope of the right guaranteed under Article
20 (2) and as to what is incorporated in it as "within its scope
the plea of autrefois convict as known to the British
jurisprudence or the plea of double jeopardy as it known to the
G American Constitution but circumscribed it by providing that
there should be not only a prosecution but also a punishment
in the first instance in order to operate as a bar to a second
prosecution and punishment for the same offence." That in
order for the protection of Article 20 (2) to be invoked by a
H
1.
(1953) SCR 730
MONICA BEDI v. STATE OF A.P.
541
[B. SUDERSHAN REDDY, J.]
person there must have been a prosecution and as well as
A
punishment in respect of the same offence before a court of
law of competent jurisdiction or a tribunal, required by law to
decide the matters in controversy judicially on evidence. That
the proceedings contemplated therein are in the nature of
criminal proceedings before a court of law or a judicial tribunal
B
and the prosecution in this context would mean an initiation or
starting of the proceedings of a crirhinal nature in accordance
with the procedure prescribed in the statute which creates the
offence and regulates the procedure. This principle is reiterated
in S.A. Venkataraman vs. The Union of India & Anr. 2, wherein c
this Court observed that the words "prosecuted or punished"
are not to be taken 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."
17. What is the meaning of expression used in Article 20
D
(2) "for the same offence"? What is prohibited under Article 20
(2) is, the second prosecution and conviction must be for the
same offence. If the offences are distinct, there is no question
of the rule as to double jeopardy being applicable. In Leo Roy
Frey vs. Superintendent District Jail, Amritsaf3, petitioners
E
therein were found guilty under Section 167 (8) of the Sea
Customs Act and the goods recovered from their possession
were confiscated and heavy personal penalties imposed on
them by the authority. Complaints thereafter were lodged by the
authorities before the Additional District Magistrate under
F
Section 1208 of the Indian Penal Code read with provisions
of the Foreign Exchange Regulations Act, 1947 and the Sea
Customs Act. The petitioners approached the Supreme Court
for quashing of the proceedings pending against them in the
court of Magistrate inter alia contending that in view of the
G
provisions of Article 20 (2) of the Constitution they could not
be prosecuted and punished twice over for the same offence
2.
(1954) SCR 1150.
3.
(1958) SCR 822.
H
542 SUPREME COURT REPORTS [2010] 13 (~DDL.) S.C.R.
A
and the proceedings pending before the Magistrate violated the
protection afforded by Article 20 (2) of the Constitution. This
Court rejected the contention and held that criminal conspiracy
is an offence under Section 1208 of the Indian Penal Code but
not so under the Sea Customs Act, and the petitioners were
B not and could not be charged with it before the Collector of
Customs. It is an offence separate from the crime which it may
have for its object and is complete even before the crime is
attempted or completed, and even when attempted or
completed; it forms no ingredients of such crime. They are,
c therefore, quite separate offences. The Court relied on the view
expressed by the United States, Supreme Court in United
States vs. Rabinowith4. In The State of Bombay vs. S.L. Apte5,
this Court laid down the law stating that if the offences were
distinct there is no question of the rule as to double jeopardy
0
as embodied in Article 20 (2) of the Constitution being
applicable.