TaxTMI 
TaxTMI 
2021 (10) TMI 1492
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.... Airport were regularly and systematically obtaining and collecting money as illegal gratification from the passengers who arrive from the foreign countries for the purpose of granting customs clearance to them and that the amount so collected was being shared among the customs officers. The CBI requested the Managing Director of the Cochin International Airport to record the activities at the international arrival area of the Airport for a period of ten days. On 17.10.2006, the CBI received ten compact discs which contained the recording made during eight days from 10.10.2006 to 17.10.2006. The visuals contained in the compact discs, prima facie, showed customs officials demanding and accepting bribe from the passengers. The CBI registered a case on 18.10.2006 against identifiable customs officials. On that day, at around 19:30 hours, the CBI conducted search at the international arrival area of the Airport. During the search, foreign currency notes of different countries were recovered from many customs officials. Foreign currency was recovered from the suitcases of certain customs officials, including the petitioner, who was working as Preventive Officer of the Customs. 4. Af....
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....eedings. Learned counsel for the C.B.I relied upon the three-Judge Bench decision of the Supreme Court in State of N.C.T. of Delhi v. Ajay Kumar Tyagi : (2012) 9 SCC 685 in support of his submission. 11. In P.S. Rajya v. State of Bihar : (1996) 9 SCC 1, the question that arose for consideration was, whether continuation of the prosecution against the accused under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 was justified notwithstanding the fact that on an identical charge the accused was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission. The Apex Court answered this question stating as follows: "At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same....
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....) 10 SCC 674, it was held that the report of the Central Vigilance Commission in departmental enquiry may be a relevant factor but it cannot be held to be "be all or end all" of the matter for prosecuting the accused persons. 14. In Radheshyam Kejriwal v. State of West Bengal : (2011) 3 SCC 581, the precise question considered was, when the accused is exonerated before the adjudicating authority, whether his prosecution on same set of facts can be allowed or not. It was a case in which the accused prayed for dropping of the criminal proceeding on the ground that he was exonerated in the adjudication proceeding under the Foreign Exchange Regulation Act, 1973. The Apex Court elucidated the principles in this regard and held as follows: "In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process ....
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....pra) and set aside the order of the High Court by which it had quashed the criminal proceedings on the ground that the accused was exonerated in departmental proceeding instituted on the same charges. 17. Learned senior counsel for the petitioner would heavily rely upon the later decision by a three-Judge Bench of the Supreme Court in Ashoo Surendranath Tewari v. Deputy Superintendent of Police : (2020) 9 SCC 636 to buttress his contention that the criminal proceedings are liable to be quashed on the ground that the petitioner has been exonerated in the departmental proceeding. 18. In Ashoo Surendranath Tewari (supra), the competent authority had refused sanction for prosecution against the accused for the offences under the Indian Penal Code. The Special Court, while discharging the accused for offences under the Act, refused to do so to the extent of the offences under the Indian Penal Code. The High Court agreed with the Special Court that there was no need for sanction under Section 197 of the Code. The High Court considered an order of the Central Vigilance Commission which went into the facts of the case in great detail and concurred with the competent authority that on....
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....edings on the criminal prosecution against him was not the question decided in Ashoo Surendranath Tewari (supra). On the other hand, in Ajay Kumar Tyagi (supra), the Supreme Court has categorically held that exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case and it would not result in quashing of the criminal prosecution. 22. In the second place, in Ashoo Surendranath Tewari (supra), the Apex Court placed reliance upon the earlier decision in Radheshyam Kejriwal (supra) which dealt with the effect of the adjudication proceedings on criminal prosecution. Ajay Kumar Tyagi (supra) which dealt with the effect of exoneration of a person in departmental proceedings was not referred to or considered in that decision. 23. In the third place, even if it is assumed or accepted that Ajay Kumar Tyagi (supra) and Ashoo Surendranath Tewari (supra) have dealt with the same issue, the inviolable recourse open to the High Court is to apply the earliest view as the succeeding ones would fall in the category of per incuriam (See Sundeep Kumar Bafna v. State of Maharastra : AIR 2014 SC 1745). 24. In the aforesaid circumstances, this....
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....f the I.P.C, means agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. 29. Very often, conspiracy is hatched in privacy and secrecy. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence, whenever any one of the conspirators does an act or series of acts, he could be held liable under Section 120B of the I.P.C. 30. The essence of a criminal conspiracy is the unlawful combination. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with liability under Section 120B of the I.P.C. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. The prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of crimi....