J.N. Bhat, J.
1. S. Prahlad Singh has filed this petition for writ of certiorari for quashing the order of the Chairman and members of the Anti-Corruption Commission, Jammu and Kashmir (hereinafter to be referred to as the Commission) and further prohibiting the second respondent i. e., the Commission from taking any further action in the charge framed against him. The State is the first respondent in the writ petition.
2. The allegation of the petitioner is that he is a permanent resident of the State; he held agricultural land in the Pakistan-occupied portion of the State; he was a permanent employee of the State of Jammu & Kashmir and was posted as Asstt. Controller, Weights and Measures, Jammu wherefrom he has been suspended on 10th March 1964 as a consequence of the charges framed against him by the Commission. One S. Lal Singh complained against the petitioner in the year 1961 that he had by unlawful and corrupt means got 31 kanals of land allotted in the name of his minor son, Twinderjit Singh in village Motey in R. S. Pura Tehsil which later on were exchanged for land in Satwari, but the Satwari land was allotted to the petitioner; that his son Twinderjit Singh minor got quarters No, 4 and 5 at Bakshinagar allotted to him.
3. The petitioner, it appears, had something to do as Tehsildar Jammu with the allotment of quarters Nos. 4 and 5 in favour of his son. When these acts of abuse of power and certain mis-representations made by him in procuring the allotments mentioned above were brought to the notice of respondent 1, the respondent No. 1 by means of order dated 19-8-61 framed four charges against the petitioner. A one man Commission consisting of Mr. Ghanshyam was appointed to inquire into these charges. Mr. Ghanshyam made his report on 14-8-63 and according to the petitioner he was exonerated of these charges by the Government on 27-2-63, On 18-4-63 the same Lalchand put in another complaint against the petitioner before the Commission who got it investigated by the special Police Agency and ultimately on 26-2-64, the Com-mission framed two charges against the petitioner. The petitioner represented to the commission that the subject-matter of the two charges framed against him had been the subject-matter of charges framed against the petitioner by the Government in the year 1961 and as he was exonerated by the Government of the charges framed against him on 27-2-63 he could not be charge-sheeted again for the same acts. The Commission heard the petitioner and after giving a very detailed order quashed the second charge on the ground that the petitioner had been exonerated of that charge by the Government. But the Commission held that the first charge framed by the Commission against the petitioner was not the same as framed against him in the charge-sheet framed by the Government in the year 1961. Therefore the Commission held that it could inquire into the first charge framed against the petitioner. The petitioner, feeling aggrieved with this order of the Commission, has come up to this Court in writ.
4. The grounds taken by the petitioner in the writ petition are that the charge now retained by the Commission and the previous charge framed by the Government related to the same matter in substance. He cannot therefore be tried again for the same charge on the principle of the doctrine of autrefois acquit. His further contention is that the J & K Government Servants' Prevention of Corruption (Commission) Act, 1962 (hereinafter to be referred to as the Act) cannot be held applicable to acts, which satisfy the definition of corruption under the Act, if they were committed before the Act came into force. This Act, according to the petitioner, came into operation in the year 1962, whereas admittedly the acts complained of against the petitioner and the subject-matter of the charge against him pertain to the year 1955 and onwards, much before 1962. The Act is not retrospective but prospective. The petitioner therefore prays for quashing the whole proceedings and further prohibiting the Commission to proceed against him any farther in the matter.
5. Both the respondents were represented before us by the Advocate-General. While conceding that the petitioner was proceeded against and charge-sheeted for certain misdeeds of his in the year 1961 of which an inquiry was held by Mr. Ghanshyam Commissioner who exonerated the petitioner of some complaints against him, the entire matter was not finally disposed of by any competent authority.
It is further stated on behalf of the State that all that was decided in the case of the petitioner was that the Revenue Minister had observed that the Commission of Inquiry had exonerated the officer of having exercised his influence and of having abused his powers to secure the allotments; yet there remained certain facts in the matter of securing the rehabilitation benefits in his favour by the Sardar as brought out by the Revenue Secretary. The Revenue Minister thought fit to refer the matter to the Financial Commissioner who would advise after proper scrutiny whether the rehabilitation benefits availed of by the officer were in keeping with the rules or that any of the benefits was being withdrawn or cancelled. The State, therefore, said that the matter was not finally disposed of, as the Financial Commr. had so far made no recommendation in the matter. It was further stated that the subject-matter of the charges before the Commission was different from the subject-matter of charges framed against the petitioner by the Government. The plea of autrefois acquit could not be available to the petitioner in departmental proceedings. The Act was clearly applicable to the conduct of the petitioner, even though the misdeeds alleged were committed by him before the promulgation of the Act, Further pleas taken by the State were that some of the pleas raised by the petitioner in this writ petition were not raised before the Tribunal and therefore he could not be permitted to press them in this writ petition.
6. This writ petition was heard along with another writ petition filed by Sheikh Ghulam Rasul who has also been charge-sheeted for the same acts which in another form are the subject-matter of charges against the petitioner. Mr. Sharma appeared in both the writ petitions for the petitioners and the learned Advocate-General appeared for both the respondents in either case. These two writ petitions are allied. The argument whether the Act of 1962 is prospective or retrospective has been dealt with in detail by us in the writ petition of Sheikh Ghulam Rasul. We have held therein that corruption as defined by the Act committed by a Government servant even before the Act came into force can be the subject-matter of proceedings before the Commission, though the Commission came into being after July 62 when the Act was passed. Therefore we need not discuss this aspect of the case over again in this writ petition.
7. The only other ground that remains for determination in this writ petition is first whether the doctrine of autrefois acquit applies to such proceedings and secondly whether the charge now framed by the Commission against the petitioner was the subject-matter of a charge against the petitioner by respondent 1 in the year 1961 of which he has been exonerated by the Government, vide order dated 27-2-1963.
8. The learned Advocate-General's first contention is that the doctrine of autrefois acquit or which in America is called the doctrine of double jeopardy cannot be applicable to proceedings before the Commission. This doctrine is based on Article 20(2) of the Indian Constitution as applied to this State. This provision of the Constitution runs as under:
No person shall be prosecuted or punished for the same offence more than once.
According to the learned Advocate General the proceedings before the Commission are no prosecution and the Commission has no power to punish any one. In support of this doctrine the learned Advocate General has referred to Rai Narain Singh v. Atmaram Govind : AIR1954All319 wherein their Lordships have stated that:
the words prosecution and punishment in Article 20(2) have reference to criminal offence and have the effect of limiting the scope of the article to criminal proceedings before a court of law or judicial tribunal competent to deal with criminal cases.
In this authority another authority of the Calcutta High Court, Suresh Chandra v. Himangshu Kumar Roy : AIR1953Cal316 has been relied upon, The learned Advocate General has further drawn our attention to a number of cases wherein it has been laid down that in order to avail the immunity of Article 20(2) the two sets of facts must constitute the same offence. If the facts in the previous proceedings and in the subsequent proceedings constitute two different offences the plea cannot be available to the accused. Reference may also be made in this behalf to Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) , State of Madhya Pradesh v. Veereshwar Rao (S) : 1957CriLJ892 and State of Bombay v. S.L. Apte : 1961CriLJ725 .
9. In (S) : 1957CriLJ892 it was held that an offence under Section 5(2) of the Prevention of Corruption Act and Section 409 of the Penal Code were not identical. Therefore an acquittal in one would not automatically result in the acquittal in the other.
10. In A I R 1953 S C 325 (Supra) the test of judicial Tribunals was given and it was held that gold confiscated under the Sea Customs Act would not bar a prosecution under the Foreign Exchange Regulation Control Act.
11. Similarly in : 1961CriLJ725 an offence under Section 409, Indian Penal Code was considered to be different from the one under Section 105 of the Insurance Act.
12. The learned Advocate General further argued that if the previous proceedings were closed by an order of the competent Court as being irregular or not in accordance with law, fresh proceedings will not be barred. In support of this proposition he cited Devendra Pratap v. State of Uttar Pradesh : (1962)ILLJ266SC . He further contended that Tribunals which by virtue of the legislation constituting them had the power to determine finally the preliminary facts on which the exercise of further jurisdiction depends, in such cases even if their decision was wrong in law, such decisions could not be amenable to be corrected by a writ of certiorari. (Vide Raman & Raman Ltd. v. State of Madras (S) : 1SCR256 ).
13. There are however authorities for the proposition that even in departmental inquiries the principle of autrefois acquit and autrefois convict should be held applicable, because application of this principle would be in consonance with the rules of justice, equity and good conscience. In this behalf Dwarkachand v. State of Rajasthan ; R. T. Rangachari v. Secy. of State AIR 1937 P C 27 and Ramswaroop Sharma v. Div. Commr. Supdt., Ratlam : AIR1964MP155 may be cited. In our opinion the question whether the principle of autrefois acquit applies to proceedings before the commission does not strictly arise in this case, though it was argued by the learned Advocate General, because the commission has itself held the principle applicable and on that ground quashed the second charge framed by it against the petitioner. The only thing, therefore, that is to be done in this writ proceeding is to see whether the subject-matter of charge No. 1 as framed by the commission has been the subject-matter of a charge against the petitioner when the State charge-sheeted him in 1961.
14. The charge framed against the petitioner is so long that it would require very great research work to compare the present charge with the facts of the charge framed against the petitioner in 1961. On this point the commission has given a categorical finding and held:
What is covered by the first charge framed by us, it is clear that its contents are not similar to those of the earlier relevant charge, of which we have already given extracts. For the said charge in the earlier proceeding is that the land was got transferred from S. Twinderjit Singh in favour of Prahlad Singh apparently to facilitate the allotment of quarters at Bakshinagar in favour of the former, whereas the charge framed by us is the abuse of his official position by Prahlad Singh in recommending the allotment of land in favour of his son Twinderjit Singh whose benefit the family still enjoys.
In other words the finding of the commission is that the former proceedings against the petitioner related to transfer of land from S. Twinderjit Singh to the petitioner in order that quarters Nos. 4 and 5 at Bakshinagar be allotted to his son. But the present charge before the commission is that the petitioner misused his official position as Tehsildar Jammu in recommending allotment in favour of his son and a very important portion of the present charge is that the benefits of the misdeed on the part of the petitioner the family still enjoys. According to the Advocate General the last part would by itself constitute corruption within the meaning of the Act. Therefore on this finding of fact and in view of the additional charge framed against the petitioner by the commission, we will be travelling beyond the scope of writ petition if we go meticulously into the details of the factual aspects of the two charges. Of course it is expected that the commission will lake all good care to see that the petitioner is not again hauled up for the same actions which were in substance the subject-matter of charges previously against him.
15. We cannot at the same time lose sight of the objection raised by the learned Advocate General on behalf of the State that the whole matter which was the subject of charges against the petitioner previously has (sic) been completely disposed of. He has placed before us the order of the Revenue Minister dated 27-2-63 wherein the matter has been referred to the Financial Commr. for his opinion and report. No such report seems to have been made by the Financial Commr. so far. Therefore it cannot be legally said that the petitioner has been completely exonerated of the charges framed against him previously.
16. In view of these observations we do not feel that the petitioner can succeed in this writ petition which is dismissed.
S. Murtaza Fazl Ali, J.
17. I agree.