Judgment Case ID: 2813

Judgment:
iminal Appeal No.207 of 1969. Appeal by special leave from the judgment and order dated September 11	 1969 of the Delhi High Court in Criminal Misc. (Main) No. 53 of 1969. V. A. Seyid Muhammad and section P. Nayar	 for the appellant. R. Jethamalani	 Harjinder Singh	 Kumar Mehta	 H. K. Puri and Rameshwar Nath	 for respondent No. 1. Immediately after his arrest	 he made a confession before a Magistrate. Since then	 he has been in custody part of the time under section 3 (2) (g) of the 	 part of the time as a convict in various offences for which he was convicted	 and part of the time as an under trial prisoner. The first regular case filed against him was under section 5 of the in which he was convicted on 29th January	 1965 and sentenced to undergo six month 's rigorous imprisonment after he had pleaded guilty. While he was undergoing that sentence	 a second case was filed against him for an offence under section 135 of the in which he was convicted and sentenced to nine months ' rigorous imprisonment and a fine of Rs. 2	000 again after he had pleaded guilty. This conviction was recorded on 29th May	 1965. After he had undergone this sentence	 he was again put in detention under section 3 (2) (g) of the . This detention was challenged by him by filing two writ petitions in the High Court of Punjab	 and in this	 Court	 but both the writ petitions were dismissed. Then	 on 17th January	 1967	 a case was filed in the Court of Miss K. Sen Gupta	 S.D.M.	 New Delhi	 for a substantive offence under section 135 of the 	 for an offence under section 120 B of the Indian Penal Code read with section 135 of the Customs ' Act and section 23 (1 ) (a) of the Foreign Exchange Regulations Act	 and an offence under section 23 (1 ) (a) of the Foreign Exchange Regulations Act read with sections 109 and 114 of the Indian Penal Code. The respondent again pleaded guilty	 was convicted on 31st January	 1969	 and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 2	000. In this case	 17 other persons were prosecuted as his co accused. 114 During the pendency of this case		 another case was filed in the Court of Shri N. C. Jain	 S.D.M.	 New Delhi	 on 18th March	 1968 against the respondent and 45 other persons charging them with offences under section 120	 I.P.C.	 read with section 135 of the 	 section 167(81) of the and section 23 (1 A) of the Foreign Exchange Regulations Act	 as well as substantive offences under section 135 of the 	 section 167(81) of the 	 and section 23(1 A) of the Foreign Exchange Regulations Act. Having already been convicted for some of the offences	 particularly the offence of conspiracy in the earlier case	 on the 31st January	 1969	 the respondent moved a writ petition in the High Court on 4th April		 1969	 for quashing these last proceedings on the ground that	 having been convicted for a conspiracy earlier	 he could not be retried for the same conspiracy	 so that this trial was invalid. In the alternative	 the respondent prayed that	 in case the proceedings are not quashed	 the proceedings against him be separated from other co accused	 his plea of guilty be recorded	 and he be convicted in? accordance with law. Two other alternative prayers were that	 in case the first two prayers were not accepted	 the trial Court may be directed to record the plea of guilty of the respondent and convict him in accordance with law even in the joint trial	 and	 in the alternative	 the trial Court be ordered to take up the proceedings day to day and a time limit may be fixed by which the complainant should furnish the evidence against the respondent before the Court. The High Court	 by its order dated 11th September	 1969	 accepted the plea of the respondent	 held that this second trial for the offence of conspiracy was barred as a result of the earlier trial in which the respondent had been convicted on 31st January	 1969	 and	 consequently	 quashed the proceedings in respect of this offence. The Court also quashed the proceedings in respect of specific offences under section 135 of the and section 23(1 A) of the Foreign Exchange Regulations Act insofar as they related to smuggling of 52 kilograms of gold into India on or about 8th May	 1964 on the ground that the respondent had already been convicted and sentenced in respect of these offences. The High Court	 however	 added a sentence that	 if the respondent is accused of any other specific acts of smuggling 	 there will be no bar against the continuation of prosecution proceedings in respect of them. It is this order which has been challenged before us in this 'appeal by special leave. In this case	 it was very unfortunate that	 when the writ petition was heard by the High Court	 the very first confession made by the respondent	 which was to a great extent the basis of the various prosecutions	 was not placed before the High Court and was not brought to its notice. Obviously	 there was carelessness on the part of the prosecution in not bringing it to the notice of 115 the High Court. At the same time	 the respondent	 who had challenged the prosecution	 also owed a duty to bring that confession to the notice of the High Court as the burden lay on him to show that the prosecution going on against him was illegal and liable to be quashed; and he had moved the High Court to exercise its extra ordinary writ jurisdiction to obtain this relief. In his writ petition	 the respondent had offered to produce the copy of the confession for perusal of the Court	 but the Court lost sight of this offer and proceeded to pass the order without examining the confession. The importance of this omission lies in the fact that a reading of the confession itself makes it manifest that there were two different and separate conspiracies	 one which was	 headed by a person known as Abid Hussain	 and the other by another person known as Allau din. The respondent	 in the confession	 made statements which indicated that these two conspiracies were distinct and separate ones	 though a few of the persons involved in the two conspiracies were common. In fact	 the confession showed that	 at one stage	 he was given in structions by the head of one of the conspiracies to see that his part in that conspiracy did not come to the knowledge of the head of the other conspiracy. It is true that	 at the initial stage	 the customs authorities	 even after	 the confession	 proceeded on the view that	 very likely	 there was one single conspiracy and that the respondent had incorrectly tried to show that there were two separate conspiracies in which he was involved. That appears to be the reason why	 at the early stages	 in the various documents put forward before the courts	 the authorities used language indicating that there was one single conspiracy in respect of which the respondent was being held in custody and was going to	 be prosecuted. It appears that it was much later	 after detailed investigation	 that the authorities became satisfied that there were two separate conspiracies and	 consequently	 came forward with a second prosecution of the respondent in respect of the conspiracy which was not the subject matter of the first complaint on the basis of which the respondent was convicted on 31st January	 1969. That the authorities were under the impression that there was only one single conspiracy at the earlier stages is apparent from the facts stated in the complaint dated 5th April	 1965 in respect of the substantive offence under section 135 of the 	 and even later	 in an affidavit filed on 5th January	 1966 by the Under Secretary to Government in reply to the habeas corpus petition filed by the respondent in the High Court	 the allegations made out as if there was one single conspiracy which was engineered by a syndicate headed by Abid Hussain. Even at the time of the prosecution for the first conspiracy on 17th January	 1967	 the facts given in the complaint created the impression that there was one single conspiracy and that Allau din was one of the conspirators in that conspiracy and was not the head of that 116 separate conspiracy for which the respondent and 17 others were prosecuted. These circumstances were partly explained in a later affidavit of H. K. Kochhar	 Assistant Collector of Customs	 sworn on 12th May	 1969	 and filed in the High Court in reply to the petition under article 226 of the Constitution on which the High Court passed the present impugned order. The High Court preferred to attach greater weight to the affidavit of the Under Secretary to Government and did not choose to act at all on the affidavit of H. K. Kochhar	 considering that the former affidavit was by a senior officer on behalf of the Government	 while the		 latter affidavit had been sworn by an Assistant Collector of Customs only. In adopting this course	 the High Court lost	 sight of the. circumstance that the affidavit of the Under Secretary was filed in January	 1966 when the investigation of the various facts was at a fairly early stage	 while Kochhar 's affidavit was filed in May	 1969	 by which time fuller investigation had been made by the authorities and they had discovered that their first impression that there was one single conspiracy was incorrect. The position has been further clarified before us in the affidavit of the Collector of Customs	 R. Prasad	 filed in reply to the petition for revocation of special leave to appeal on the basis of which this appeal has 'been heard by us. These facts made it clear that the High Court misdirected itself in accepting the plea of the respondent and in quashing the proceedings. In fact	 Mr. Jethmalani	 counsel for 'the respondent	 did not make any serious effort to justify the order of the High Court after we had gone through the confession of the respondent	 so that it is obvious that the order of the High 		Court quashing the proceedings was not justified. Mr. Jethmalani	 however	 urged that	 even though the order of the High Court may not be justified	 the circumstances of this case do not require that this Court should exercise its special powers under article 136 of the Constitution to order a trial of the respondent and reopen the proceedings. He drew our attention to two decisions of this Court K.V.Krishnamurthy Iyer and others vs The State of Madras(1)	 and The State of Bihar vs Hiralal Kejriwal and another(2) in which this Court declined to 	order a re trial in exercise	 of its powers under article 136 of the 	Constitution even though the orders in which the trials had terminated were held to be incorrect and set aside. In both the .	cases	 the principle laid down was that public interest or th interest of justice did not require that there should be a fresh trial. Reliance was also placed on the views expressed by 'Bombay High Court in Chudaman Narayan Patil vs State of Maharashtra(3). On the basis of the views expressed in those (1) A.I.R. 1954 S.C. 406. (2) [1960] 1 S.C.R. 726. (3) A.I.R. 1969 Bom. 117 cases	 he urged that	 in this case	 the respondent had been in. custody for a period of about six years since his arrest and was being harassed by prosecutions launched one after the other	 while. being kept in custody under section 3 (2) (g) of the . during the period when he could not be detained either as a convict or as an under trial prisoner. He also emphasised the frank confession of his part in the conspiracies and that	 every time. frank confession of his part in the conspiracies and that	 everytime a case was brought up against him	 he stuck to that confession. and pleaded guilty in court. He was also given the impression	 when the earlier case of conspiracy was started on 17th January.	 1967	 that after the trial of that case	 his woes will be over and. he will not have to face any further trials. We have considered these aspects	 but we do not think that. this is a fit case where we should uphold the order of the HighCourt quashing the proceedings which were validly started and which related to an entirely distinct and separate offence of cons piracy apart from the one for which the respondent has already been convicted. The offences for which he is now being tried. are of such a nature that they may have far reaching implications	 and we do not think that it will be in the public interest that the trial should be given up merely because there has been delay in	 sending up the case. The case related to a conspiracy and we can very well appreciate that investigation of an offence of cons piracy is necessarily prolonged and requires considerable work by the investigating authorities	 so that certain amount of delay is bound to take place in putting the case before the court. In the present case	 the matters appear to have been complicated by the fact that	 at the earlier stages	 the authorities were under the impression that there was one single conspiracy. We are unable to find any material to suggest that the prosecution have deliberately prolonged the investigation or delayed bringing the case before the court. We may also add that we are not impressed by the argument advanced by Mr. Jethmalani that the respondent could have been charged for this conspiracy even in the earlier case in which he was convicted on 3 1 st January	 1969 under the provisions of section 236 of the Code of Criminal Procedure	 because the two conspiracies	 according to the prosecution	 are two entirely separate and distinct ones and are not based on allegations of identical acts having been committed by the offenders. In this case	 therefore	 it appears to be appropriate that the respondent should be tried for the conspiracy on the basis of which proceedings are being taken which have been quashed by the High Court. We	 however	 consider that	 in view of the long delay and in view of the circumstance that the respondent has been pleading 118 guilty	 his second alternative request in the writ petition is justified. Merely because he is a co accused with 45 others there is no justification that he should be subjected to a prolonged trial	 specially because we have been assured by the counsel for the respondent that the respondent is still sticking to his confession and will	 very likely	 plead guilty as soon as a charge is framed against him. In the circumstances	 while allowing the	 appeal and setting aside the order of the High Court	 we direct that the trial of the respondent shall be separated from all other 45 co accused and will be proceeded with separately. Dr. Seyid Muhammad	 counsel for the appellant	 opposed this separation of the trial of .the respondent on the ground that	 if there is a joint trial	 the confession of the respondent can be taken into account by the court trying the case against his co accused which will not be permissible if the respondent is separately tried. '. That is no ground for unnecessarily delaying the trial of the	 respondent specially when	 if the prosecution desire	 they can either apply to the Court to make the respondent an approver or can even produce the respondent as a witness in the case against others after his 	conviction. In fact	 if any of these two alternative courses is adopted. it will be fairer to the other co accused who will then have an opportunity of cross examining the respondent before his statement is taken in evidence against them. On our enquiry	 Dr. Seyid Muhammad stated that it will be 'possible for the prosecution to produce sufficient evidence to make out a prima facie case on the basis of which a charge can be framed by the court	 if a period of two months is allowed to the prosecution to produce evidence in the trial. On behalf of the respondent	 a request was made that we. should fix a timelimit for completion of the whole trial in view of the long delay. We	 however	 consider that it is sufficient to make a direction that the Magistrate will allow a period of not more than two months to the prosecution to produce evidence to make out a prima facie case against the respondent	 calculated from the date on which .the copy of our order is received by the trial Court. On the expiry of the period of two months	 the Court will proceed either to frame a charge or to discharge the respondent in accordance with his judgment whether the evidence produced does or does not make out a prima facie case to justify framing of a charge. It is to this extent only that we are laying down a time schedule for the trial Court which we consider necessary to avoid possible harassment of the respondent.

Summary:
The respondent was a Pakistani national and was arrested on 8th May 1964	 and immediately after his arrest he made a confession before a Magistrate. The confession disclosed that he was involved in two different and separate conspiracies with various co accused. But the customs authorities assumed that there was only one conspiracy and that the respondent had incorrectly shown two separate conspiracies. Three cases were filed against him charging him with offences under the 	 and 	 and the offence of conspiracy and other offences under various enactments. He was convicted on his plea of guilty and sentenced to various terms of imprisonment. He was also detained under the . After fuller investigation	 the respondent was again put up for trial for the second conspiracy and for offences under other Acts. The respondent moved the High Court for quashing the proceedings on the ground that he having been convicted for a conspiracy could not be retried for the same offence again. He also pleaded various alternatives in the event of the Court not quashing the proceedings	 and one of the pleas was that proceedings against him should be separated from other co accused and his plea of guilty be accepted. The High Court quashed the proceedings. In appeal to this Court	 HELD : (1) Since the second trial was for a different and distinct conspiracy	 the High Court 's order was not justified. [117 D] (2) Since the offences for which the respondent was being tried were likely to have far reaching implications	 it was not in the public interest that the trial should be given up merely because	 he had already served various terms of imprisonment	 or there has been delay in putting him up for trial for the second conspiracy	 especially when there was no material to suggest that the prosecution deliberately prolonged the investigation or delayed bringing up the case before Court. Further	 the trial for the second conspiracy could not have been combined with the earlier one	 because	 the two are separate and distinct. [117 D E] (3) In the circumstances however	 his alternative plea of separating his case from the other co accused should be accepted and the prosecution allowed a period of not more than two months for producing the evidence so that the court could on a consideration of the evidence	 either frame a charge or discharge the respondent. The contention of the prosecution that he should be tried along with the others to enable the court to take his confession into consideration against the co accused is	 not a ground 113 for joint trial especially when the respondent could be called as a witness against the other co accused. 1118 B)