IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 12TH JULY 2007 / 21ST ASHADHA 1929 WP(C).No. 9989 of 2004(L) ------------------------- CC.45 & 46/2003 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM .................... PETITIONER: ------------ P.T.MATHAI, DEEPTHI BHAVAN, MANTHUKA, KULANADA, PANDALAM. BY ADV. SRI.V.G.ARUN SRI.V.G.ARUN RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY GOVERNMENT PLEADER SRI.D.KISHORE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2007, ALONG WITH WPC.12912/04 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. ```````````````````````````````````````````````````` W.P.(C). Nos.9989, 12912, 21351, 27768 and 31804 OF 2004 ```````````````````````````````````````````````````` Dated this the 12th day of July, 2007 J U D G M E N T In these writ petitions filed under Article 227 of the Constitution of India, the common petitioner, namely, P.T.Mathai, seeks to declare that the proceedings before the Enquiry Commissioner and Special Judge, Thiruvananthapuram, pending against him are illegal and violative of the rights guaranteed to him under Article 20(2) of the Constitution of India and Section 300 of the Cr.P.C. In W.P.(C) No.9989/04 the declaration is sought in respect of C.C.Nos.43 and 45 of 2003. In W.P.(C) No.12912/04, the petitioner seeks to quash the proceedings in C.C.No.48/2003. This case was tried before the CJM, Pathanamthitta as C.C.No.150/2003 and ended in conviction for offences punishable under sections 406, 409 and 418 IPC on 11.11.2005. In W.P.(C) No.21351/04, the declaration is sought in respect of C.C.Nos.44 and 47 of 2003. In W.P.(C) No.27768/04, the declaration is sought in respect of C.C.No.46/2003 and in W.P.(C) No.31804/04, the declaration is sought in respect of C.C.Nos.44 and 47 of 2003. 2. The petitioner was the Secretary of the Kulanada Government Servants Co-operative Bank for a pretty long period of 26 WPC.No.9989/04 & connected cases : 2 : years from 1971 to 1997. On 23.10.1997, on the complaint of the Joint Registrar of Co-operative Societies, Pathanamthitta, the Pandalam police registered Crime No.352/1997 for an offence punishable under section 409 read with section 34 IPC. This case, after filing of the final report, was taken on file by JFCM, Adoor, as C.C.No.727/1999, which has subsequently been transferred to CJM, Pathanamthitta, where it is pending as C.C.No.352/04. Likewise, the Pandalam police has registered similar cases in the other C.Cs as well. The following statement will show the dates on which the final report filed, offences alleged, the crime numbers and the proceedings before the respective courts including the Special Court:- 1. W.P.(C) No.9989/2004 Crime No.387/97 of Pandalam Police Station Date of FIR 7.11.1997 Final report filed on 30.11.1999 Offences alleged under sections 406, 418, 465, 467, 468, 471, 474, 477(A) read with section 34 IPC. Accused No.1 P.T.Mathai Accused No.2 Bhanudevan Nair Proceedings before the CJM Court, Pathanamthitta C.C.147/03 C.C.146/03 - Trial being proceeded with. WPC.No.9989/04 & connected cases : 3 : VIGILANCE CASE Crime No.VC 4 of 1998 Vigilance Police Station, Pathanamthitta Date of FIR 10.3.98 Offences alleged 13(2) r/w 13(1)(c)(d)of PC Act 420, 468, 471 and 409 IPC Final report filed on -05- 2003 Accused P.T.Mathai Proceedings before the Vigilance Court challenged in the writ petition- C.C.43/03 and CC.45/03. 2. W.P.(C) No.12912/2004 Crime No.387/97 of Pandalam Police Station Date of FIR 27.11.97 Final report filed on 30.11.99 Offences alleged 406, 409 and 48 IPC Accused No.1 P.T.Mathai Accused No.2 Bhanudevan Nair Proceedings before the CJM Court, Pathanamthitta C.C.150/03 - Trial over - accused convicted. VIGILANCE CASE Crime No.VC 4 of 1998 Vigilance Police Station, Pathanamthitta Date of FIR 10.3.98 Date of final report 5-2003 WPC.No.9989/04 & connected cases : 4 : Offences alleged 13(2) r/w 13(1)(c) and (d) of the PC Act and sections 420, 468, 471 and 409 IPC Accused P.T.Mathai Proceedings before the Vigilance court challenged in the writ petition C.C.48/03. 3. W.P.(C) No.21351/2004 Crime No.387/97 of the Pandalam Police Station Date of FIR 27.11.97 Date of final report 30.11.99 Offences alleged Secs.406, 409, 418, 465, 467, 468, 471, 474, 477A r/w 34 IPC Accused No.1 P.T.Mathai Accused No.2 Bhanudevan Nair Proceedings before the CJM, Pathanamthitta C.C.177/03 VIGILANCE CASE Crime No.4/98 Vigilance Police station, Pathanamthitta Date of FIR 10.3.98 Offences alleged 13(2) r/w 13(1)(c) & (d) of PC Act 420, 468, 471 and 409 IPC Final report filed on 5-2003 Accused P.T.Mathai Proceedings before the Vigilance Court challenged in the writ petition WPC.No.9989/04 & connected cases : 5 : C.C.Nos.44 and 47 of 2003. 4. W.P.(C) No.27768/04 Crime No.352/97 of the Pandalam Police Station Date of FIR 23.10.97 Final report filed on 30.9.99 Offences alleged Sec.409 r/w 34 IPC Accused No.1 P.T.Mathai Accused No.2 Bhanudevan Nair Proceedings before JFCM, Adoor C.C.727/99 (Now C.C.352/04 of CJM, Pathanamthitta) VIGILANCE CASE Crime No.VC 4 of 1998 Vigilance Police Station, Pathanamthitta Date of FIR 10.3.98 Offences alleged 13(2) r/w 13(1)(c) & (d) of PC Act Secs.420, 468, 471 and 409 IPC Final report filed on 5-2003 Accused P.T.Mathai Proceedings before the Vigilance court challenged in the writ petition C.C.46/03. 5. W.P.(C) No.31804/04 Crime No.387/97 of Pandalam Police Station Date of FIR 27.11.97 Final report filed on 30.12.99 WPC.No.9989/04 & connected cases : 6 : Offences alleged Secs.406, 409, 418, 465, 467, 468, 471, 474 & r/w 34 IPC Accused No.1 P.T.Mathai Accused No.2 Bhanudevan Nair Proceedings before CJM, Pathanamthitta C.C.177/03. VIGILANCE CASE Crime No.4/98 Vigilance Police Station, Pathanamthitta Date of FIR 10.3.98 Offences alleged 13(2) r/w 13(1)(c) & (d) of PC Act Secs.420, 468, 471 and 409 IPC. Final report filed on 5-2003 Accused P.T.Mathai Proceedings before the Vigilance court challenged in the writ petition C.C.44/03 and 47/03. 3. It is the case of the petitioner that he is being vexed twice before two different forums for the same or similar offences in respect of the very same fact situation and this according to him offends his constitutional and other rights under Article 20(2) of the Constitution of India and Section 300 Cr.P.C. 4. I heard Advocate Sri.V.G.Arun, learned counsel for the petitioner, Advocate Sri.D.Kishore, learned counsel appearing for the Bank and Sri.P.N.Sukumaran, learned Public Prosecutor. WPC.No.9989/04 & connected cases : 7 : 5. Eventhough the basic allegation in all the cases is misappropriation by the petitioner in his capacity as the Secretary of the Kulanada Government Servants Co-operative Bank, in none of the cases pending before the Magistrate court is there any allegation of offences under the Prevention of Corruption Act, 1988. Even if the substratum for an offence punishable under section 13(2) of the P.C. Act, 1988, may be misappropriation, the related offences under IPC for which the petitioner faces trial before the Magistrate court are distinct and different offences. Moreover, except in the case of C.C.No.150/03 tried and disposed of by the CJM, Pathanamthitta, the petitioner has not been tried in the rest of the cases so as to attract the principle of double jeopardy enshrined in Article 20(2) of the Constitution or the principle of autre fois acquit and autre fois convict under section 300 Cr.P.C. Even with regard to C.C.No.150/03 referred to above, the petitioner has been convicted for offences punishable under sections 406, 409 and 418 IPC only which are not the offences involved in the corresponding C.C.No.48/03 pending before the Special court. Such being the position, the contention of the petitioner based on Article 20(2) of the Constitution of India and Section 300 Cr.P.C. is without any basis. Moreover, the matter is covered against the petitioner in the decision reported in State of Bihar Vs. Murad Ali Khan[1988 (4) SCC 655]. Even if the act or omission alleged against the petitioner constitutes WPC.No.9989/04 & connected cases : 8 : offences under two or more enactments, there is no embargo against prosecuting him for those offences. But the only interdict is that he shall not be liable to be punished twice for the same offence in view of Section 26 of the General Clauses Act, 1897. Such being the position, I see no merit in the contention of the petitioner. 6. It is submitted by the learned counsel for the petitioner that consequent on the non-appearance of the petitioner before the Special court, non-bailable warrants are pending against him. It is open to the petitioner to surrender before the Special court and file applications for regular bail within two weeks from today and the said applications shall be considered and disposed of on merits, preferably on the same day on which such applications are filed. Until then, warrants, if any, pending against the petitioner shall not be executed. These writ petitions are accordingly dismissed. (V. RAMKUMAR, JUDGE) aks